When Authorisation Is Required
The obligation to obtain an autorisation d'aménagement commercial before opening is set out in Articles L 752-1 and following and R 751-1 and following of the Code de commerce. It applies to the creation or extension of any commercial ensemble with a total retail selling area exceeding 1,000 square metres, or whose realisation will push the total above that threshold.
The concept of a single commercial ensemble is interpreted broadly. Stores located on a common site are treated as a single ensemble — and aggregated for threshold purposes — where they were designed as part of a single land development operation; benefit from shared facilities (internal roads, shared car parks, pedestrian routes); share management of certain elements; or are linked by a common corporate structure in which at least one associate exercises significant influence. The aggregation rule means that a fragmented development plan cannot avoid the threshold simply by building in stages or through separate entities.
| Operation | Threshold | Notes |
|---|---|---|
| Creation or extension of a commercial ensemble | > 1,000 m² total retail selling area | Includes operations that will cross the threshold; multi-site aggregation applies |
| Change of business sector | > 2,000 m² (general) / > 1,000 m² (food-dominant new activity) | Free if new activity is in the same sector as the old; authorisation required if different sector |
| ORT territory — no new soil artificialisation | No threshold in principle | ORT convention may set its own thresholds: minimum 2,500 m² (food) / 5,000 m² (other) |
What Falls Outside the Authorisation Requirement
Article L 752-2 (as amended by the law of 23 October 2023) excludes several categories from the authorisation requirement: pharmacies, motor vehicle dealers, airside retail accessible only to ticketed passengers, city-centre gare and station retail below 2,500 m², and certain mixed-use ORT operations where the retail component is less than one quarter of the total residential floor area.
The ORT exemption is particularly significant. An opération de revitalisation du territoire is a contractual framework, signed by major national retail operators, local authorities and the State, designed to direct commercial activity into existing urban fabric rather than peripheral zones. Within an ORT perimeter, retail development that does not involve the artificial consumption of new land is exempt from the normal threshold requirement — subject to any thresholds the ORT convention itself imposes, which cannot be lower than 2,500 m² for food-dominant projects or 5,000 m² for all other categories.
The threshold is calculated on surface de vente — retail selling area — not on gross floor area or GLA. The retail selling area is the area accessible to customers in which goods are displayed and sold. It excludes stockrooms, staff areas, circulation behind checkout lines, and other non-selling spaces. In a mixed-use project combining retail with food and beverage, leisure, or services, only the retail selling surfaces count towards the threshold.
The CDAC: First-Level Decision Authority
Authorisations are delivered by the commission départementale d'aménagement commercial (CDAC) at departmental level. Where the project also requires a building permit, the CDAC does not itself issue the authorisation: it issues a favourable opinion that is incorporated into the building permit delivered by the local planning authority. The application is submitted to the mayor of the municipality of the proposed site, who transmits it to the CDAC secretariat within 7 days. The CDAC must render its decision within 2 months of receiving a complete file. Silence on expiry of the 2-month period constitutes a deemed favourable decision. In parallel, the building permit instruction period is extended to 5 months where a commercial authorisation is required, and to 10 months if a CNAC appeal is lodged.
The Authorisation Process Step by Step
The Three Criteria: What the CDAC Assesses
The CDAC assesses applications against three groupings of criteria set out in Article L 752-6 of the Code de commerce. It can only refuse authorisation if the project, having regard to its effects, compromises the objectives set by the law. The CDAC cannot refuse on competition grounds, on the basis of commercial density in the catchment zone, or on the basis of the project's effect on the balance between different forms of retail — these grounds are explicitly excluded from the assessment framework.
- Effect on animation and economic development of town centres
- Complementarity of urban functions and territorial balance
- Compatibility with the SCoT territorial coherence scheme
- Compatibility with intercommunal PLU commercial orientations
- In zones with no SCoT: prohibition on authorisations in areas rezoned as constructible after 4 July 2003
- Land artificialisation effects
- Environmental performance of the project
- Energy efficiency and renewable energy integration
- Sustainable transport accessibility
- Contribution to biodiversity and green infrastructure objectives
- Range and diversity of offer available in the catchment area
- Accessibility for all consumer groups including mobility-impaired
- Pricing and commercial conditions
- Quality of service and post-purchase support
The CDAC may additionally take into account, as a secondary consideration, the social contribution of the project in terms of employment effects. This is facultative, not mandatory, and cannot be the primary basis for a decision.
The CDAC has only one power: to authorise or to refuse the project as presented. It cannot grant a conditional authorisation — for example, authorising a scheme on condition that the applicant reduces the car park or improves public transport access. Applicants who receive a refusal and wish to address the commission's concerns must resubmit a modified project. Where the modifications are not substantial, a revised application can in certain circumstances be lodged directly with the CNAC rather than going back through the CDAC, providing a faster route to a positive outcome on a corrected scheme.
Peremption: The Authorisation Expiry Clock
An autorisation d'exploitation commerciale does not remain valid indefinitely. For projects requiring a building permit, the authorisation lapses for any retail surfaces that have not opened to the public within three years of the building permit becoming final. This base period is extended to five years for projects involving between 2,500 and 6,000 m² of retail selling area, and to seven years for projects above 6,000 m². Where litigation is pending before the administrative courts, the three-year clock is suspended for the duration of the proceedings until a final judicial decision is issued. For projects that do not require a building permit, the three-year clock runs from the date of the CDAC (or CNAC) decision, with the same extensions and litigation suspension. Careful phasing planning — calibrated to the peremption timescales applicable to the specific scale of the project — is an essential part of the development programme for any scheme above 2,500 m².
The Conformity Certificate: The Gateway to Opening
Before any shopping centre can open its doors to the public, its operator must file a certificat de conformité with the prefect, the mayor, and the president of the relevant EPCI. This certificate, prepared at the operator's expense by an organism accredited by the prefect, attests that the completed facility conforms in all respects to the commercial authorisation. The certificate must be filed at least one month before the planned opening date. In the absence of a properly filed conformity certificate, the operation of the retail surfaces is deemed unlawful by operation of law — there is no grace period and no regulatory discretion.
Where the completed scheme is slightly smaller than authorised, a certificate can be issued for the completed portion only, at pro-rata of the total authorised area. A substantial departure from the authorisation invalidates the conformity certificate and requires a new authorisation application.
Any commercial lease or pre-lease signed in respect of units in a centre under construction or restructuring should include a condition precedent providing that the lease takes effect only once the commercial authorisation has been obtained and confirmed following any CNAC appeal period. A lease signed without this condition exposes the tenant to a binding commitment on premises that may never lawfully open. Standard market practice is to include the authorisation condition, the building permit condition, and a longstop date after which either party may terminate if the conditions have not been satisfied within a defined period.
Transfer and Succession of Authorisations
An autorisation d'exploitation commerciale, and a building permit incorporating such an authorisation, are both transferable and transmissible. For investors acquiring development sites with existing authorisations, the transferability principle is commercially important: the authorisation capacity attached to the site passes with it and does not need to be reapplied for, provided the peremption clock has not expired and the project to be developed is consistent with what was authorised. Practitioners recommend waiting until any challenge or administrative withdrawal period has run before implementing a transfer, so that the incoming party acquires a right that is no longer contestable.
The commercial planning authorisation process involves tight procedural timelines, a broad right of challenge by competitors, and hard legal consequences for non-compliance. Whether you are structuring a development, evaluating an acquisition, or advising on a pre-lease, specialist guidance is essential.
Book a ConsultationThis article is for general information and educational purposes only. It does not constitute legal advice. The legal framework described reflects French law as at 2025, including amendments made by the law of 23 October 2023. Always seek qualified legal advice for any specific development or investment.
