MOROCCO Law and Practice Contributed by: Wacef Bentaibi, Benoit Pape, Chaimaâ Bouhami and Maxime Masurier, Gide Loyrette Nouel
3.4 Eminent Domain, Condemnation and Expropriation Rights to Construct and Operate Generation Facilities Eminent Domain/Expropriation Rights for Generation Facilities in Morocco Under Moroccan law, a proponent for the siting, con- struction and operation of a generation facility does not inherently hold eminent domain or expropriation rights. However, Law No 7-81 on Expropriation for Public Utility and Temporary Occupation (“Law 7-81”) pro- vides that the right of expropriation is open to the State, local authorities ( collectivités territoriales ), and other public or private legal entities to which the public authority delegates its rights for carrying out works declared of public utility. A private developer may therefore benefit from expropriation rights if acting as a public service concessionaire, private partner under a PPP scheme or the like. How Occupancy and Use Rights on Project Sites Are Obtained The method for obtaining rights to land depends on the legal status of the relevant parcels: • Public domain of the State or local authori- ties ( domaine public ): Land is mobilised through temporary occupation permits issued by unilateral administrative act. These permits are precarious and revocable. • Private domain of the State ( domaine privé de l ’ État ): Land may be acquired through sale or lease authorised by the Ministry of Economy and Finance. • Forestry domain ( domaine forestier ): Occupation requires a unilateral authorisation issued by the Director General of the National Water and Forests Agency. It is precarious, revocable, and limited to a maximum of nine years, renewable. • Private land: Where the land needed is privately owned and the project is declared of public utility, expropriation under Law 7-81 may be pursued. In the case of private development (Law 13-09), land rights can be secured through leases or acquisi- tions entered into with relevant landowners.
Compensation Requirements Expropriation under Law 7-81 requires fair and prior compensation ( indemnité juste et préalable ), as guar- anteed by Article 35 of the Constitution. Indemnity covers only actual, certain, and direct damage and may not extend to speculative or indirect harm (Article 20). The quantum is determined as follows: • The indemnity is fixed based on the property’s value on the date of the judicial decision ordering the expropriation. • Improvements made without the expropriating party’s consent after publication of the public utility declaration are excluded. • Indemnity cannot exceed the property’s value on the date of publication of the acte de cessibilité , and speculative increases post-declaration are disregarded. • The process has two phases: an administrative phase (where the State and the owner may agree on value) and, failing agreement, a judicial phase in which the administrative court determines com- pensation. In practice, valuation relies on comparative market methods, and courts may order independent expert appraisals. 3.5 Decommissioning a Generation Facility Decommissioning Requirements There is no express statutory obligation under Law 13-09 or Law 82-21 requiring the operator to set aside decommissioning funds over the physical life of the facility or to constitute a decommissioning reserve during the operational period. The bank guarantee required under Law 13-09 secures project realisation, not decommissioning. No pre-funded decommissioning mechanism has been established. Decommissioning costs are therefore typically borne at the end of the project’s economic life, when the MTEDD requires dismantling and site restoration. For Masen-led projects and IPP projects under PPAs, decommissioning funding arrangements, if any, are
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