"Darkstores" are storage sites for everyday consumer products, located in city centres, as close as possible to customers, to enable rapid delivery of goods and groceries, after ordering online. Gorillas and Frichti both operate around ten such premises in the centre of Paris. Before using these premises as storage sites, both companies used them as commercial premises. They then changed their use without requesting permission from the City of Paris.
The City of Paris considered that several premises operated by the companies Gorillas and Frichti, used as "darkstores", had become warehouses. However, the Paris Local Urban Plan (Plan Local d'Urbanisme - PLU) prohibits the transformation of existing premises on the ground floor, onto the street, into warehouses. In June 2022, the City of Paris therefore gave the two companies formal notice to return the premises they occupied to their original state, within three months and under penalty, based on article L. 481-1 of the French Urban Planning Code (Code de l'urbanisme).
The companies asked the interim relief judge of the Paris administrative court to suspend these formal notices. In an order dated 5 October 2022, the urgent applications judge (juge des référés) essentially granted the companies' requests and suspended the execution of these decisions by the City of Paris (1). Frichti and Gorillas challenged this order before the Conseil d'Etat.
The Conseil d'Etat's decision gives a broad scope of the mayor's new police powers in urban planning matters
The disputed decisions of the City of Paris were based on article L. 481-1 of the French Urban Planning Code, resulting from the law of 27 December 2019 (2). This article allows the competent authority, independently of any criminal proceedings that may be initiated, to issue a formal notice in various cases where the provisions of the French Urban Planning Code or the requirements of an administrative decision have been breached. The mechanism gives the mayor an important power, as it enables him to impose his will on economic operators without having to resort to the prior authorisation of a judge. Furthermore, although article L. 481-1 allows the offender to submit comments, the system does not offer the same guarantees as the criminal trial in terms of adversarial proceedings.
Frichti and Gorillas argued that article L. 481-1 only applies to "works" in the strict sense. The urgent applications judge had considered the argument serious. On the contrary, the Conseil d'Etat ruled that these provisions apply to all operations subject to town planning authorisation or exempted, by way of derogation, from such a formality and which would have been undertaken or carried out irregularly. By this decision, the Conseil d'Etat therefore gives a broad scope to the new administrative remediation procedure.
This procedure applies to changes of use (changements de destination) which, under article R. 421-17 of the French Urban Planning Code, are subject to prior declaration (déclaration préalable) when they are not subject to a building permit (permis de construire). The Conseil d'Etat therefore ruled that the City of Paris could legally require Frichti and Gorillas to return their premises to their initial activities as a traditional store, since there had been an unauthorised change of use and the implementation of "works" within the meaning of article L. 481-1.
According to the Conseil d'Etat's decision, Frichti and Gorillas' "darkstores" are warehouses
The Conseil d'Etat ruled that "darkstores" are warehouses within the meaning of the regulations in force. These premises store goods for the purpose of rapid delivery to customers and are no longer intended for direct sale. This new activity therefore belongs to the category of "warehouses", both under the French Town Planning Code and the Paris PLU.
Unlike the urgent applications judge, the Conseil d'Etat considers that the "darkstores" do not fall under the scope of urban logistics which, according to the provisions of the Paris PLU, could make them fall into the category of "constructions and installations necessary for public services or collective interest" (called "CINASPIC").
When Frichti and Gorillas transformed their premises used for traditional trade into "darkstores", they should have declared the change of use to the City of Paris. The City of Paris could then oppose this change of use, as the Paris PLU prohibits the transformation of existing premises on the ground floor onto the street into a warehouse. In the absence of an administrative monitoring from the City of Paris, Frichti and Gorillas transformed their premises without the administration being able to control this change of use.
The day after the Conseil d'Etat's decision, the Government issues new regulatory norms to regulate the development of "darkstores"
No doubt encouraged by the Conseil d'Etat's decision, the Government has decided to issue, after several months of discussions, new regulatory norms allowing the development of "darkstores" in large cities to be regulated by means of PLU.
A decree relating to the destinations and sub-destinations of buildings, that can be regulated by the PLU or equivalent documents, was issued in the Official Journal of 24 March 2023 (3). This text regulates fast delivery platforms, "darkstores" and "dark kitchens", by clarifying their classification as "warehouses" within the meaning of the French Town Planning Code (4).
The Government also issued an order, amending the previous text dating from 2016, which specifies the definition of the various sub-destinations (5). The "warehouse" sub-destination therefore covers "buildings intended for logistics, storage or warehousing of goods without a sales area, permanent delivery points or delivery and withdrawal points for retail purchases ordered by telematic means, as well as premises housing data centres". The sub-destination "craft and retail trade" refers to "premises in which stored products ordered electronically are exclusively collected by customers".
The regulation of "darkstores" should continue to evolve, as it remains a significant concern of elected representatives in large cities
The elected representatives of large cities welcomed the new regulatory norms. They have been calling for stricter regulation of "darkstores" since the COVID-19 crisis. These texts will allow cities to determine the areas in which "darkstores" will be authorised, prohibited or subject to conditions.
However, the Conseil d'Etat's decision and the new regulations do not answer all the questions raised by the new lifestyles of consumers and the new practices of storage and delivery of products.
Other proposals for regulatory changes, notably from elected representatives of large cities, could soon come, for example on the legal tools for regulating commercial establishments and the powers of the mayor to regulate and stimulate trade in his territory.
For more information on any of the points raised in this article, please contact Bruno Richard.
CE, 23 March 2023, No. 468360 >
- TA Paris, order, 5 October 2022, No. 2219416.
- Law No. 2019-1461 of 27 December 2019 on engagement in local life and proximity of public action.
- Decree No. 2023-195 of 22 March 2023 on various measures relating to the destinations and sub-destinations of constructions that may be regulated by local urban plans or equivalent documents.
- Articles R.151-27 and R.151-28 of the French Town Planning Code list the five destinations and sub-destinations of buildings that can be regulated by a local urban plan.
- Order of 22 March 2023 modifying the definition of the sub-destinations of constructions that can be regulated in local urban plans or equivalent documents.
