Exorbitant clause of common law and qualification of administrative contract
An administrative contract differs from the private contract, in particular by the fact of containing one or more exorbitant clauses of the common law, that is to say a clause which unbalances the contract in favor of the administration, justified by the existence of provisions made in the general interest and prohibited in private law contracts. For example, the power of unilateral amendment of the contract. His presence determines the administrative nature of the contract and the competent jurisdiction.
In this case, the Disputes Tribunal gives a new definition of the exorbitant clause of ordinary law making it possible to characterize an administrative contract. The judicial and administrative judges having declined their jurisdiction, the tribunal of the conflicts was brought to judge the administrative character or not of a contract passed between a commune and a sports association of rowing.
Rule n ° 1:
Amendment of the definition of the exorbitant clause as a "clause which, in particular by the prerogatives granted to the contracting public entity in the performance of the contract, implies in the general interest, (that the contract) falls under the exorbitant regime of administrative contracts ". In other words, this new definition of exorbitant clauses places the general interest at the center of the qualification of administrative contracts and thus of administrative activity. The criterion becomes finalist. Exorbitant clauses are no longer defined by their content, but by their purpose.
Rule n ° 2:
Inadequacy of the classic definition of the exorbitant clause, which until then had been considered as a foreign clause by nature to that granted by anyone within the framework of civil or commercial laws (TC, 15/11/1999, Commune of Bourisp, Rec. Page 478).
Rule n ° 3:
From now on, a contract can contain abnormal clauses without being exorbitant, since they do not imply the general interest.
Rule n ° 4:
The contract binding the municipality and the association is not intended to authorize the occupation of the public domain communal, the property is not assigned to the direct use of the public, nor to a public service. It is therefore not qualified as an administrative contract by law determination.
Rule n ° 5:
The contract can not be described as an emphyteutic lease, since it is not concluded for the fulfillment of a public service mission on behalf of the municipality, nor for the purpose of carrying out an operation. of general interest within its competence.
Practical advice :
- If you are an administration: to check that the clauses that seem to you exorbitant of common law are well in the general interest and implies prerogatives of public power (ex: power of direction, control or sanction which allow to modify unilaterally the contract or to terminate it in a quasi discretionary), and not an abnormal or unusual clause, which could also be included in a private contract, to qualify the administrative contract.
- If you are a contracting partner of the administration: to know the judge competent in case of dispute with the administration, check the character of general interest or not of your contract, as well as the clauses which reveal or not prerogatives of public power.