La responsabilité du maître de l'ouvrage délégué doit être prouvée

The responsibility of the delegated project manager must be proven

by gmorales on 5 May 2015 | Category: Public markets
La responsabilité du maître de l'ouvrage délégué doit être prouvée La responsabilité du maître de l'ouvrage délégué doit être prouvée

La responsabilité du maître de l'ouvrage délégué doit être prouvée Rule n ° 1:

A delegated contracting authority must, in the exercise of its mission defined by the agreement of mandate which binds him to the master of work, to carry out the diligences which his principal is entitled to expect from a professional having accepted this mission .
In accordance with this principle, it is therefore the responsibility of a delegated project owner who is entrusted with the task of approving the general contract statement, to ensure that this document is not vitiated by errors or omissions which should not escape a professional.

Rule n ° 2:

If it is possible for the contracting authority to engage the responsibility of its delegated contracting authority, it is still necessary that the latter reports the proof of a fault committed by the latter in the execution of his contract of mandate. In the case at hand, the client blamed his delegated contracting authority for errors and omissions during the preparation of the general contract statement. The State Council requires in this case that the owner of the work reports the proof of a fault committed by his delegated master of the work.

Board of state

No. 356790
ECLI: FR: CESJS: 2015: 356790.20150323
Unpublished at Lebon collection
7th SSJS
Mr Frédéric Dieu, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP BENABENT, JEHANNIN; SCP MONOD - COLIN - STOCLET; SCP DELAPORTE, BRIARD, TRICHET, lawyers

Reading of Monday, March 23rd, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Seen, with the documents referred to therein, the decision of 30 December 2013 by which the Conseil d'Etat ruling in the case stayed the proceedings on the conclusions of the mixed union for the treatment of urban residues directed against the semi-public company equipment of the Auvergne and tending to the engagement of its contractual responsibility;

Considering the other parts of the file;
Considering the note under advisement, registered on March 6, 2015, presented for the mixed union for the treatment of urban residues;
Given the general code of local authorities;
Given the code of public contracts;
Considering the law n ° 85-704 of July 12th, 1985;
Considering the code of administrative justice;
After hearing in open session:

- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Lyon-Caen, Thiriez, lawyer of the mixed union for the treatment of the urban residues, with the SCP Monod, Colin, Stoclet, lawyer of the mixed company of equipment of the Auvergne, to the SCP Delaporte, Briard, Trichet, lawyer of the company of industrial participations, coming to the rights of society Waste Management France and the SCP Bénabent, Jehannin, lawyer of the company Eiffage Construction coming to the rights the Company Auxiliary Company (SAE);

1. Considering that, by a decision of December 30, 2013, the Council of State ruling litigation has annulled the judgment of December 13, 2011 of the Administrative Court of Appeal of Lyon as he sentenced the company Eiffage Construction and the company of industrial participations to pay to the mixed union for the treatment of the urban residues, jointly with Me A ... B ..., as liquidator of the company Auxiwaste Services, a sum of 457 347,05 euros included in the total amount of EUR 11 685 541.45 charged to the latter, and in so far as it deducted twenty per cent from the depreciation already made in respect of compensation, to the benefit of the trade union, costs design and construction of the plant and rejected the latter's claim for compensation for the costs of transferring the site; that, by the same decision, the Council of State ruling in litigation rejected the appeal conclusions of the joint union for the treatment of urban waste tending to the conviction of the company Eiffage Construction and the company of industrial participations to the compensate for damages resulting from the insufficient calorific value of the briquettes and sentenced Auxiwaste Services to pay the union a sum of € 14,441,337.45, of which € 11,228,194.40 jointly with Eiffage Construction and the industrial holding company ; that after having reformed in this sense the judgment of the tribunal administrative of Clermont-Ferrand of July 27, 2006 and article 1st of the judgment of December 13, 2011, the Council of State ruling the dispute has stayed proceedings on the conclusions the mixed syndicate for the treatment of urban waste directed against the Auvergne joint venture company and tending to the engagement of its contractual responsibility;

2. Considering that, by the decision of December 30, 2013, the Council of State ruling litigation has held that the finality of the general count of the market design and construction of waste treatment center of Châteldon, notified August 14 1998 to Auxiliary Company, the rights of which comes the company Eiffage Construction, and to the company Waste Management France, the rights of which comes the company of industrial participations, was an obstacle to that the joint union for the treatment of residues seeks the contractual liability of the company Eiffage Construction, coming to the rights of the Auxiliary Company, and of the company of industrial participations, coming to the rights of society Waste Management France, because of the insufficient calorific value of briquettes; that, in the last state of its writings, the mixed union for the treatment of the urban residues maintains that it is justified in seeking the contractual responsibility of the delegated contracting authority, the company of mixed economy of the Auvergne as a result of the latter's breach of its contractual obligations under the terms of the agency agreement binding it to the syndicate with respect to the settlement operations of the contract concluded with the Company Auxiliary Company , whose rights comes from the company Eiffage Construction, and with the company Waste Management France, to whose rights comes the company of industrial participations;

3. Considering that a delegated contracting authority must, in the exercise of its mission defined by the agreement of mandate which binds him to the contracting authority, to carry out the diligences which his principal has the right to expect from a professional having accepted this mission; that if, pursuant to this principle, it is up to a delegated project owner who is entrusted with a task of approval of the settlement, to ensure that this document is not tainted with errors or omissions that do not should not escape a professional, the mixed union for the treatment of urban residues does not report any error or omission nor does it establish how the delegated contracting authority would not have performed the due diligence it was he had the right to expect from him in the framework of his mission and, in particular, had approved a count which was vitiated by errors or omissions; that, consequently, without it being necessary to rule on the end of non-receipt raised by the company of mixed equipment of Auvergne, the conclusions of the mixed union for the treatment of the urban residues directed against the company of mixed economy equipment of the Auvergne and tending to the engagement of its contractual responsibility because of a breach of its duty of advice must be rejected ;

DECIDE:
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Article 1: The conclusions of the joint syndicate for the treatment of urban waste directed against the company of mixed equipment of Auvergne and tending to the engagement of its contractual responsibility are rejected.
Article 2: This decision will be notified to the mixed union for the treatment of urban waste and to the joint venture company of Auvergne.