Nature of the contract between a motorway concession company and a private person
Motorway work no longer falls under the "by nature" jurisdiction of the State, traditionally carried out "in direct management". Rule n ° 1:
Putting an end to its traditional jurisprudence, company Peyrot company of 1963, the court of the conflicts comes to judge that the contracts concluded by a concession company of highway with a private person and having for object the construction, the operation or the maintenance of the motorway are in principle private law contracts.
The judicial judge is now competent to hear disputes concerning the execution of these contracts.
This reversal is controlled by three reasons for opportunity:
- First of all, the traditional solution no longer coincided with the factual evolution in (auto) road: the State only exercising a residual competence and the management being granted to private companies devoid of any state control ;
- Next, the exorbitant system of public law applicable up to then was no longer justified taking into account the common law regime to which the work of other concessionaires are subject;
- Finally, this solution makes it possible to erect a block of jurisdiction for the benefit of the judicial judge for all the contracts concluded by the motorway concession companies.
Rule n ° 2:
In the light of the principle of legal certainty, however, the Dispute Tribunal limits, for the first time, the scope of its decision to contracts concluded after its reading.
Applying the conventional principle, according to which the legal nature of a contract is assessed on the date of its conclusion, the court considers that all the contracts concluded before March 9, 2015 remain subject to the regime of the administrative contracts and the appreciation of the administrative judge.
TRIBUNAL OF CONFLICTS
Dispute on dismissal from the Paris Administrative Court of Appeal Ms R. c / Société Autoroutes du Sud de la France
Mr Yves Maunand Rapporteur
Mrs. Nathalie Escaut Government Commissioner
Session of February 9, 2015
Reading of March 9, 2015
IN THE NAME OF THE FRENCH PEOPLE
THE TRIBUNAL OF CONFLICTS
Seen, registered at its Secretariat on 23 October 2014, the dispatch of the judgment of 21 October 2014 by which the Paris Administrative Court of Appeal, seized of a request from Mrs R. tending to the cancellation of the judgment of the Administrative Court of Paris of 23 January 2013 dismissing its claim against the Société des Autoroutes du Sud de France (ASF) for compensation for the damage resulting from the termination of the agreement of 23 April 1990, referred to the Tribunal, pursuant to Article 34 of the decree of October 26, 1849 amended, the decision on the question of jurisdiction;
Considering the judgment of February 17, 2010 by which the Court of Cassation has declined the jurisdiction of the courts of the judiciary; Seen, registered on November 27, 2014, the brief presented by Mrs. R. tending to the competence of the courts of the judiciary on the ground that the contract, concluded between two private persons, does not relate to an object necessary for the construction of motorway or constituting a mere accessory to its realization and that ASF did not act as agent of the State;
Seen, registered on January 14, 2015, the brief presented by the company ASF tending to the competence of the courts of the administrative order and the allocation of the sum of 4 000 euros under article 75 of the law of 10 July 1991 on the ground that the contracts entered into by a motorway concessionaire for the realization of the motorway works and their accessories are the responsibility of the administrative judge;
Considering the documents from which it follows that the referral to the Tribunal has been notified to the Minister of Ecology, Sustainable Development and Energy who has not produced a memorial; Considering the other parts of the file;
Considering the law of 16-24 August 1790 and the decree of 16 Fructidor year III;
Considering the law of May 24, 1872;
Having regard to the decree of October 26, 1849, as amended;
After hearing in open session:
- the report of Mr Yves Maunand, member of the Tribunal,
- observations of SCP Nicolaÿ, Lanouvelle, Hannotin for Autoroutes du Sud de la France,
- the observations of Mrs Bouthors for Mrs R.,
- the conclusions of Mrs Nathalie Escaut, Government Commissioner;
Considering that, within the framework of the obligations made to motorway concession companies to devote part of the amount of the construction work of a motorway link to works of art, ASF concluded on April 23, 1990 with Mrs. R. a contract entrusting him with a fixed fee, the mission to establish a series of three sketches to allow the company to choose the work to create, then the realization of a model of a monumental sculpture that the company was considering set up on a service area located on the future route of the A 89 motorway; that the convention stipulated that the definitive sculpture could only be realized if ASF was chosen as the concessionaire of the A 89 motorway and if one of the three sketches presented was retained by it; that the designation of ASF as the concessionaire of the A 89 motorway was approved by decree of 7 February 1992; that after the completion of the construction works of the motorway works, the company ASF informed Ms. R., by mail of June 7, 2005, its decision to abandon the project definitively; that, by judgment of February 17, 2010, the Court of Cassation declined the jurisdiction of the judicial judge seized by Mrs. R. a claim for compensation for the damages she would have suffered because of the termination of the contract she alleges ; that, by judgment of October 21, 2014, the Administrative Court of Appeal of Paris, considering that the dispute fell within the competence of the courts of the judicial order, has seized the Tribunal of the conflicts in application of article 34 of the decree of the October 26, 1849 amended;
Considering that a highway concession company that enters into a contract with another private person for the construction, operation or maintenance of the highway can not, in the absence of any particular conditions, be regarded as having acted on behalf of the State; that disputes arising from the performance of this contract fall within the jurisdiction of the courts of the judiciary;
Considering, however, that the legal nature of a contract appreciating on the date on which it was entered into, those which were previously contracted by a highway concession company under the terms of the administrative contracts remain governed by the law public and the disputes arising from their execution fall within the jurisdiction of the administrative order;
Considering that Mrs R. continues the repair of the damages which she would have suffered following the termination of the agreement which would have bound her to the company ASF and which would have concerned the implantation on a rest area of a work monumental to the realization of which the concession company was required to devote a portion of the cost of the work, and which had a direct link with the construction of the highway; that the dispute therefore falls within the jurisdiction of the administrative jurisdiction;
Considering that it is not necessary, in the circumstances of the case, to grant the conclusions presented by ASF under the provisions of Article 75 of the Law of 10 July 1991;
Article 1: The jurisdiction of the administrative order is competent to know the dispute between Mrs. R. to the company of the Motorways of the South of France.
Article 2: The judgment of the Administrative Court of Appeal of Paris of October 21, 2014 is declared null and void. The case and the parties are referred to this court.
Article 3: The conclusions of the company ASF presented on the basis of article 75 of the law of July 10, 1991 are rejected.
Article 4: This decision will be notified to Mrs. R., to the company of the Motorways of the South of France and to the keeper of the seals, Minister of justice.