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The ‘Obligation Réelle Environnementale’ in French Law

Published online by Cambridge University Press:  22 December 2020

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Summary

The Law for the Recovery of Biodiversity, Nature and Landscapes (8 August 2016, No. 2016–1087) gave birth to a new legal tool, allowing landowners to create sustainable land protection obligations on their land: the real environmental obligation or obligation réelle environnementale (abbreviated to ‘ORE’). The term ‘real’ refers to the fundamental distinction, in French civil law, between real rights and personal rights: this aspect has legal implications, which we will address below. It is admitted that ORE is inspired by the ‘servitudes’ (easements) of the French civil code, and much more by the ‘conservation easements’ in Anglo-saxon law, but there are still significant differences. This new obligation has been created next to already existing legal tools for the protection of biodiversity through a form of environmental protection, of private or public initiative.

The idea submitted to the French government in 2010 was to put in place a new contractual mechanism to ensure the sustainability of actions in favour of biodiversity. The ORE is thus characterized by an environmental protection system, which has the particularity of being based on a contract concluded by a landowner, if he wishes to seize, in this way, an environmental problem. It breaks with usual environmental practices in France, based often on administrative policy and public management. The personal intention of the landowner is therefore at the heart of this new and original system: it is a voluntary engagement and never an obligation imposed by the authorities. Thus, property and contract meet in this specific mechanism, in an original way in order to enhance biodiversity.

The device has been codified in article L. 132–3 of the French Code of the Environment: it's the only text regulating this new real obligation. The Ministry of Ecological and Solidary Transition has made available a methodological guide consisting of eight practical sheets intended to accompany the actors who wish to take charge of this new tool.

Since the entry into force of the ORE regulation, there has been no general enthusiasm for it, at least not with regard to the purely voluntary ORE contracted for protecting biodiversity or the environment without further reason for action.

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Publisher: Intersentia
Print publication year: 2020

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