Mr TROEGELER's position :

       Me TROEGELER, lawyer and Chairman of PG2, has always contested the concession system, basing his arguments on the case law of the time, asserting that "an artificial opening onto the sea could in no way have the effect of causing the inland water body to fall into the DPM."
      Adding : « 50 years ago, it was the STATE that, as part of its regional planning policy, came looking for private investors by granting them special rights in order to obtain financing for the creation of marinas. The investors fulfilled their commitments. Is it normal (honest) 50 years later to tell these same owners of Port-Camargue and Port Grimaud that the rules have changed and that they must now apply, at best, the guarantee of use, which is difficult to apply to marinas where the moorings are associated with a house ».

The position of Professor J. DUFAU :

       Professor J. DUFAU eis the author of a book ‘Le Domaine public’ published in 1977, in which he writes, page 415 and 416 :
       « … Private ports are ports dug by private individuals on private land and communicating with the sea by means of a feeder channel. These private ports are built by virtue of simple authorisations for temporary occupation of the public domain for the digging of the feeder channel and for the installation of the port entrance works.
       However, as private ports, they cannot be subject to the concession system.
       The same applies to the lakeside resort of Port-Grimaud, which was built on private land connected to the sea by a feeder channel. Consequently, it was wrongly placed under the concession regime by the prefectoral decree of 14 May 1975. Prior to this decree, Port-Grimaud had been incorporated into the public maritime domain by a ministerial decision. However, such a decision is of dubious legality, as the property to be incorporated into the artificial public domain must belong to the Administration, otherwise it must acquire it. »

PORT CAMARGUE :

       Port Camargue was under construction (work began in 1969), a new marina on the Languedoc coast, as part of the Racine mission. A 1st breakwater was built (the Espiguette breakwater), but from the outset, Port Camargue opened up to the sea!

       As Port Grimaud had been artificially opened up to the sea, discussions ensued between the administration, the architect, the mayor and the presidents of the ASLs. There was probably some bargaining between the granting of building permits and the donation by PG of the land on which the canals would be built. The Mayor at the time, Jean Paul Bréhant, was also Chairman of PG1, and therefore had to ensure that an acceptable solution for the lake district was finally regulated.
       As the land became the property of the State, the water also became a public maritime domain.

New contract for Port Camargue :

       On Saturday 26 March 2016, a new "plan d’eau marina" contract was signed between the State and the Plan d’eau concessionaire.
       The owners and co-owners of the Marinas de Port-Camargue will have the use of the public port domain until 2051, for a period of 35 years, which is the maximum authorised for this type of contract.
       Each contract is individual. Each person had to decide whether they preferred to anticipate or whether they chose to sign the contract during 2019. If they chose the latter, they could sign for 35 years OR for a renewable year".
       Whatever the decision, signatories must pay a fee of €1,500 over 5 years to validate the contract.

The CONCESSION :

       It is in this context that the water plan concession was granted to :

- PORT-GRIMAUD I by the Société Civile Immobilière de PORT-GRIMAUD I by prefectural decree of 14 May 1975, for a period of 50 years, i.e. until 31 December 2025. The Association Syndicale des Propriétaire de PORT-GRIMAUD I took over the rights and obligations of the SCI de PG I
- PORT-GRIMAUD II by the Société Civile Immobilière de la BAIE DE SAINT-TROPEZ by prefectural decree of 18 November 1982, for a period of 43 years, i.e. until 31 December 2025. The Association Syndicale Libre de PORT-GRIMAUD II took over the rights of the SCI de la BAIE de SAINT-TROPEZ.
- PORT-GRIMAUD III by the Société de Navigation de PORT-GRIMAUD (SNPG) by prefectural decree of November 16, 1978, for a period of 50 years, that is until December 31, 2028.

       These acts provided that the maintenance of the seawalls was the responsibility of the concessionaires...

       The concession contract was modified by an amendment on 30 November 1987, in order to provide a framework for the creation, by the SNPG, of a COMMUNAL PORT with 64 moorings. The said communal port is operated directly by the Commune since 9 November 2009.

       Since the 1st January 1984 and the transfer of the competence in the matter of maritime ports assigned solely to pleasure boating, the Commune of GRIMAUD has assumed the rights and obligations of the State.

       Etrangement aucun contrat n'avait été signé entre l'Etat et chaque propriétaire pour l'utilisation des amarrages. En 2009, le Maire de Grimaud a demandé aux 3 entités de Port Grimaud d'établir des contrats d'amodiation pour chaque bateau avec de respecter la loi. Ces contrat devaient mentionnés que le quai est privé.

       These concessions were to end in 2025 for PG1, PG2 and 2028 for PG3. The 3 concessionaires – ASP of PG I, ASL of PG II and the SNPG – were responsible for allocating berths or moorings on their respective water bodies.

Status of PORT GRIMAUD :

Boundaries of the concession :

       Here is the ground plan describing the boundaries of the concession :

CGEDD report of November 2017 :

       In November 1917, the CONSEIL GENERAL de l'ENVIRONNEMENT et du DEVELOPPEMENT DURABLE (CGEDD) under the Ministry of DE LA TRANSITION ECOLOGIQUE ET SOLIDAIRE, drew up a report on the "End of lease contracts in marinas of marinas".
       In the list of the proposed recommendations, 2 of them are of interest to our lake city:
- "To the conceding authorities: not to envisage the alienation of water bodies, even if they are located on private property, when they are only accessible through this property and can therefore only be used by the riparian owner;
- To the conceding authorities: to deliver, if necessary, titles by mutual agreement as permitted by articles L 2122-1-3 1°) or 4°) of the general code of public property in the case of bodies of water situated at the right of private property, when they are only accessible through this property and can therefore only be used by the riparian owner"
       On page 7 of the document, it is specified: "The situation of port Grimaud turns out to be a little different since, from the beginning, the lake city, then the marina, after the direct communication with the sea, were entirely conceived to allow the residents to park their nautical vehicles in front of their house, their car remaining outside. But the density of the dwellings (more than 2500) is such that "only" 53% of the owners of PG1 are owners of a berth, 72% at PG2 and 30% at PG3.

       A legal link between the ownership of a residence and the use of a berth therefore exists in Port Grimaud and this link is the basis of the existence of our marinas.

       At PORT GRIMAUD, there are 1500 berths chartered or 78% of the total capacity of the port.
       As a member of the concessionary ASL, each owner contributes to the concession charges. These charges are included in the co-ownership charges.
       Only 63% of residences (houses and flats) have a tenancy.
       To fully understand the situation of Port Grimaud, read the Analysis of the 2011 report concerning PORT GRIMAUD as well as the Report established by the CGEDD.

2022 / 2023 :

       By deliberation n°2021/01/114 dated 28 September 2021, the Commune decided to terminate the concession contracts, in accordance with the provisions of article 44 of the Specifications of the said contracts and to merge all the basins into a single port, in order to allow a reorganisation of the port service.
       By resolution no. 2021/04/118 dated 9 November 2021, the Commune opted to manage this single port as a public service with sole financial autonomy. The Town Hall justifies this decision because PG1 has been declaring a loss-making port for many years :
- in 2017, a deficit of 308,792 euros;
- in 2018, a déficit of 165,361€
- in 2119, a déficit of 439,605€
- in 2020, a déficit of 893'914€
       In its first year of operation, the Port Authority made a profit of over 400,000 euros.
       On the other hand, in 2019, in anticipation of the approaching end of the concessions, the commune commissioned an audit which was presented to the town council and the delegatees in 2020. According to the Town Hall, this audit highlighted problems of consistency in the management of the 3 Port Grimaud entities, each of which had a different model, resulting in a lack of transparency.
       By resolution no. 2021/04/118 dated 9 November 2021, the Commune opted for the management of this single port as a public authority with sole financial autonomy.
       The termination and takeover by the public sector have been effective since 1 January 2022. However, they automatically entail the termination of all the lease contracts previously concluded, as provided for in both the concession contracts and the standard contract approved by the Commune.
       The Town Hall insists that the principle of the amodiation, which is the specificity of Port-Grimaud, be preserved, these amodiation contracts materialize the legal link between the ownership of a private residence (individual house or flat) and the enjoyment of an amodied post on the public domain.
       In fact, leasehold contracts no longer exist in French law, replaced by a 'right of use' or 'guarantee of use'. The Town Hall must now deal with the new rules applicable :
     - "on the one hand, article R.5314-31 of the Transport Code provides that "the private use of berths intended for pleasure craft may not be granted for a period exceeding one year, renewable each year under the conditions defined by the competent authority […] ».
     - on the other hand, article R.5314-1 of the same Code stipulates that: "[…] guarantees of use of berths or moorings may be granted for a maximum period of 35 years, in return for a participation in the financing of new port works constituting a dependency of the public domain of the State.
       The contract granting the above-mentioned guarantee of use must stipulate that the right attached to this guarantee can only be leased through the port manager or with his agreement ».

       Before being able to propose to each user, according to his particular situation, such or such a contract, the Commune must define a multiannual investment programme concerning the realisation of new harbour works which could justify a participation in the financing on the part of private individuals and to be able to propose a guarantee of use within the limit of 35 years.

       In the meantime, and in order to avoid breaking this legal link, the Town Hall has decided to propose to the current occupants a contract for the private provision of berths for the year 2022, the draft of which is annexed to the present deliberation.
       These new contracts are entitled : "Availability of a berth", which the 3 ASLs of PORT GRIMAUD refute, since the quays are an integral part of the canal-side properties :
- The quays, which were private until the end of the concessions, remain private. They are part of the property of the owners. Unfortunately, this is the wording used in the French Transport Code (Article R5314-31), which does not Code (Article R5314-31) but does not correspond to the situation of Port Grimaud users.

       Maître Barnier, a lawyer who attended the PG2 general meeting in April 2023, proposed that the terms of the contract for the 'Availability of a berth' be replaced by a 'REAL and PERPETUAL RIGHT TO MOOR'. This would ensure that residents would be able to keep their mooring in front of their house in perpetuity... as François SPOERRY had imagined and as every resident would like! This proposal has been approved by the 3 local authorities and submitted to the Town Hall.