The Autorité has found that, despite recent legal decisions,
the scope of services covered by the legal monopoly of surveyors remains vague.
The Autorité recommends to the legislator to resolve this uncertainty and
to re-examine the merits of services that fall within the legal monopoly of building surveyors.
The issues examined in the opinion
The complainant requested the opinion of the Autorité on four subjects. For two of them, the conditions for georeferencing certification and the conditions of access to public contracts, the Autorité has not identified competitive concerns that would require modification of current regulations. An educational effort may nevertheless prove useful on a case-by-case basis.
The two other subjects, which are essentially the focus of the Autorité's recommendations, concern the extent of the monopoly that benefits the building surveyors.
The legal monopoly of building surveyors
The core business of surveyors consists in ascertaining the configurations of sites and mapping them on 2D and 3D media. The profession is made up of land surveyors, a non-regulated profession represented by CSNGT, and building surveyors, a profession regulated by the Law of 7 May 1946, which grants it a monopoly for studies and topographical work determining real estate boundaries.
Clarifying the scope of the monopoly of building surveyors
The complainant considers that by including land surveying documents1 that are likely to “have the effect of setting new real estate boundaries and creating real rights that would be attached to them” in the monopoly of building surveyors, the French Supreme Court (Cour de cassation) and tax authority have extended the legal monopoly of building surveyors without justification.
The Autorité has taken note of the recent rulings of the French Supreme Court and the French Supreme Adminitrative Court (Conseil d'État), which have clarified the categories of land surveying documents included in the monopoly of building surveyors by specifying the conditions in which preparation of a land surveying document may fall within the scope of the legal monopoly of building surveyors.
Nevertheless, the numerous referrals of complaints or consultations to the Conseil, and then to the Autorité de la concurrence on the subject, as well as the long history of administrative and judicial decisions testify to the recurring difficulties involving interpretation of the legal definition of the monopoly of building surveyors.
Proposal 1: Given the need to assure economic stakeholders a level of legal security that is compatible with a serene exercise of their competitive activities, the Autorité thus recommends to the legislator to redefine precisely the legal monopoly of building surveyors.
Excluding the drawings and sketches appended to the descriptive schedules for co-ownership partition from the monopoly of building surveyors
The complainant alleges that building surveyors are attempting to extend the scope of their monopoly to drawings that are appended to the descriptive schedules for co-ownership partition in an unjustified manner.
The descriptive schedules for co-ownership partition are the documents that designate, in co-ownerships, the parts of the building and land. The descriptive schedules may include a drawing.
The Autorité notes that, given the lack the law and regulations and in the absence of any specific legal information on this point, no exclusive right appears to have been granted to building surveyors concerning preparing drawings or sketches appended to descriptive schedules for co-ownership partition.
Reserving these drawings exclusively for building surveyors would be tantamount to granting them an unjustified guaranteed income. With more than ten million co-ownerships in France, this would be the same, on average, as giving each surveyor a monopoly on the drawings of more than 5,000 co-ownerships.
|Proposal 3: As part of the legislative reform that it recommends, the Autorité suggests clearly stating in the law that such drawings and sketches do not fall within the scope of the monopoly of the building surveyors.|
The purpose of the Autorité's recommendations is to make the law clearer for professionals
Ultimately, the subjects covered in this opinion result directly from a problem of interpreting the legal monopoly of building surveyors. In addition to its negative effects on the economy, this uncertainty has significant consequences for the professionals concerned, as the illegal exercise of the profession of building surveyor is subject to criminal prosecution. The legislative clarification recommended by the Autorité would respond to a certain number of basic issues for surveyors as well as public officials: improving the accessibility and intelligibility of the law, limiting litigation, and strengthening the legal security and economic efficiency of the survey sector.
The Autorité notes that in submitting an amendment to the Senate in 2015 as part of the examination of the draft Law for growth, activity, and equal economic opportunities, the government had already sought to “clarify the definition of activities that could also be performed by land surveyors to create greater competition for these business activities which, legally, do not fall under the exclusive monopoly of the building surveyors”2. Despite two favourable opinions from the Government and the Senate commission, this amendment was finally not adopted, with the parliamentary debate stressing the need first for an exchange with all of the stakeholders concerned. It is precisely this wide consultation that this opinion seeks to encourage, with the Autorité ready, at the request of the legislator, to participate in the effort to redefine this legal monopoly.