Rural law / Nullity of the preemption right of Rural Land Development and Establishment Companies (SAFER) for lack of justification 

On September 7, 2023, the Court of Cassation issued a judgment regarding the requirement for justification of a SAFER’s preemption decision (Cass. Civ. 3rd of September 7, 2023, No. 21-21.445). 

In this case, a parcel of land located by the sea, enclosed between two contiguous farms, was in the process of being sold to an oyster farming company that operated one of the two neighboring farms. 

The SAFER of Brittany exercised its preemption right on this parcel, arguing that several other farmers could be interested in it. 

The displaced buyer then sought to have this preemption decision revoked under Article L.143-3 of the Rural and Maritime Fishing Code (CRPM), claiming that it was not validly justified and motivated. 

Article L.143-3 of the CRPM indeed provides that “Without valid justification, the Rural Land Development and Establishment Company must justify its preemption decision by explicit and reasoned reference to one or more of the objectives [defined in Article L.143-2 of the CRPM such as the installation, reinstallation, or maintenance of farmers, the preservation of the family character of the farm…], and make it known to the interested parties.” 

To contest the Court of Appeal’s decision to revoke the preemption decision, the SAFER argued, in particular: 

That it had not engaged in any abuse of power, as the SAFER’s firm and definite commitment to a potential identifiable third party beneficiary was not established, and the displaced buyer could, in any case, apply to obtain the retrocession of the parcel, and other applications could potentially emerge. 

That it does not have to justify in its preemption decision why the displaced buyer does not meet the alleged objective. 

That the judicial review of its decisions can only concern their legality and regularity and not their opportunity. 

That it did not exercise its prerogatives in the interest of a particular predetermined farmer or seek to favor one farmer at the expense of another. 

The Court of Cassation rejected the SAFER’s appeal and held that the Court of Appeal had rightly considered: 

That given the location’s configuration, there were only two companies that could potentially be interested in acquiring the preempted parcel, namely the displaced buyer and the company operating the neighboring parcel, so the motivation for the preemption decision referring to other potential buyers was illusory. 

That the SAFER did not preempt the parcel to retrocede it to the displaced buyer, so the only possible third party beneficiary was the other company that the SAFER falsely claimed wasspecialized in oyster farming. 

The Court of Cassation thus confirmed that the motivation presented by the SAFER was not genuine because it was only aimed at concealing the intention to favor one operator over another. 

Therefore, the Court upheld the judgment issued by the Court of Appeal of Rennes and revoked the SAFER’s preemption decision.