Garantie décennale et marchés publics

Ten-year guarantee and public contracts

by gmorales on 3 May 2015 | Category: Public markets
Garantie décennale et marchés publics Garantie décennale et marchés publics

Garantie décennale et marchés publics

CE 15 April 2015, municipality of Saint-Michel-sur-Orge, Req. No. 376229,

The ten-year guarantee does not apply to disorders that were apparent when the book was received. However, an administrative court of appeal commits an error of law in dismissing this guarantee on the ground that the employer would have committed a fault in the monitoring and control of the execution of the contract without which he could have known disorder at the time of receipt of the work.

Rule n ° 1:

The Council of State abandons its traditional foundation of the "principles on which the articles 1792 and 2270 of the civil code are based" in favor of "the principles governing the ten-year guarantee of the builders" and expressly aiming at the civil code.

This adaptation is justified by the fact that the prescription of the decennial guarantee action mentioned in the former article 2270 of the civil code no longer appears there since the law n ° 2008-561 of June 17th, 2008 bringing about the reform of the prescription in civil matters.

It is unlikely, however, that this new semantics will alter the particular approach chosen by the administrative judge with respect to the decennial liability of manufacturers. Moreover, the Council of State does not fail to recall that the ten-year guarantee is likely to apply even if the disorders have not been revealed in their full extent before the expiry of the period of 10 years, position that detaches from that adopted by the Court of Cassation.

Rule n ° 2:

The practical interest of this judgment is due to the fact that the High Jurisdiction considers that the errors committed by the owner in the follow-up of the building site and the control of the execution of the market, without which he could have knowledge of the disorders in the time of receipt of the work, have no bearing on the qualification of apparent disorders.

After having recalled that the decennial guarantee does not apply to the disorders that were apparent at the time of the reception of the work, the Council of State censures the reasoning of the administrative court of appeal of Versailles in that it is content to point out the fault of the client without checking whether the disorders were really or not apparent at the reception.

Although the mistakes committed by the community during the execution of the construction are not a condition of admission of the guarantee, they nevertheless have an importance in the sharing of responsibility that will be made subsequently between the builders and the master of the building. and may reduce the compensation to which he is entitled.

Observations / tips:

During the execution of the construction site, the client must be vigilant to any disturbance of which he is aware and take all necessary measures to remedy it.

Reception operations are a crucial step for the client. It is therefore up to him to surround himself with competent technicians to denounce the apparent disorders at the risk of being closed the way of the decennial guarantee.

Board of state
N ° 376229
ECLI: FR: CESSR: 2015: 376229.20150415
Published in Lebon collection
7th / 2nd SSR

Mrs Natacha Chicot, rapporteur
Mr Bertrand Dacosta, public rapporteur

SCP GARREAU, BAUER-VIOLAS, FESCHOTTE-DESBOIS; SCP ODENT, CHICKEN; SCP BOULLOCHE; SCP CELICE, BLANCPAIN, SOLTNER, TEXIDOR, lawyer (s)

read on wednesday 15 april 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The municipality of Saint-Michel-sur-Orge has asked the Administrative Court of Versailles to condemn the Outarex society, the SMABTP, the architecture studio Malisan and the company Qualiconsult, on the basis of the ten-year guarantee, under the repair of the disorders found on the building of the refectory and the kitchen of a school group and compensation for the damage suffered as a result of the deprivation of use of this building.

By a judgment n ° 0707270 of October 4, 2011, the administrative court of Versailles condemned jointly the company Outarex, the studio of architecture Malisan and the company Qualiconsult to the payment to the commune of Saint-Michel-sur-Orge of the sum 636,002.78 euros all taxes included with interest from 11 July 2007 and their capitalization from 11 July 2008.

By a judgment n ° 11VE04049 of December 30th, 2013, the administrative court of appeal of Versailles, on the request of the company Qualiconsult, on the one hand, unloaded this company, the company Architectural studio Malisan and the company Outarex of those convictions and, on the other hand, rejected the cross-appeal findings of the municipality.

By a summary appeal and a supplementary memorandum, registered on 10 March and 10 June 2014 at the litigation secretariat of the Conseil d'Etat, the municipality of Saint-Michel-sur-Orge asks the Conseil d'Etat:

1 °) to annul this judgment;

2 °) settling the case on the merits, to dismiss the appeal findings of the companies Qualiconsult, Malisan Architecture and Outarex and to allow his incidental appeal;

3 °) to put at the expense of the companies Qualiconsult, Architecture Workshop Malisan and Outarex and the SMABTP the payment of the global sum of 5 000 euros in application of the provisions of the article L. 761-1 of the code of justice administrative.
Considering the other parts of the file;
Viewed:
- the civil code;
- the code of administrative justice;

After hearing in open session:

- the report of Ms Natacha Chicot, Master of Petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;

The words having been given, before and after the conclusions, to the SCP Garreau, Bauer-Violas, Feschotte-Desbois, lawyer of the commune of Saint-Michel-sur-Orge, with the SCP Célice, Blancpain, Soltner, Texidor, lawyer Qualiconsult, SCP Boulloche, a lawyer with Malisan Architecture, and SCP Odent, Poulet, lawyer for Outarex and SMABTP;

1. Considering that it follows from the principles governing the ten-year guarantee of manufacturers that disorders appearing within the test period of ten years, likely to compromise the strength of the work or render it unsuitable for its purpose in a foreseeable period of time, shall be liable even if they have not proved their full extent before the expiry of the period of ten years;

2. Considering that it appears from the documents in the file submitted to the judges of the merits that the town of Saint-Michel-sur-Orge engaged, in 1997, work on the redevelopment of a school group, including the construction of an extension to the refectory and the office building; that the realization of these works, which were also to allow to stabilize the load-bearing walls of the existing building, was entrusted to the company Outarex, the technical control to the company Qualiconsult and the prime contractor to the company Atelier d'architecture Malisan; that the works received a receipt with reservations on December 11, 1997, which were lifted on April 30, 1998; that, however, disorders appeared in the existing building of the refectory, leading the commune of Saint-Michel-sur-Orge to seek the ten-year responsibility of the builders; that the municipality appealed in cassation against the judgment of December 30, 2013 by which the administrative court of appeal of Versailles annulled the judgment of October 4, 2011 by which the administrative court of Versailles had condemned jointly the company Outarex, the company Atelier Malisan architecture and the company Qualiconsult to repair the damage suffered, under their ten-year responsibility, and distributed the respective responsibilities of the manufacturers and the municipality;

3. Considering that, in order to judge that the disorders resulting from the absence of carrying out the work of underpinning the foundations of buildings were apparent at the time of the reception of the works and to reject, consequently, the compensatory conclusions of the municipality presented in the field of the ten-year guarantee, the Administrative Court of Appeal noted that the municipality had not ensured the proper execution of this work of recovery, while its services were able to monitor the site and that it had been fully informed of the indispensability of the work at issue; that thus noting the existence of a fault of the owner in the monitoring and the control of the execution of the market without which he could have knowledge of the absence of realization of the work litigious, whereas it was up to him, at this stage, not to pronounce on a fault of the owner of the work but to determine to what extent the disorders due to the lack of realization of these works were apparent at the time of the reception of the work, the Versailles Administrative Court of Appeal committed an error of law; that, therefore, without it being necessary to examine the other grounds of the appeal, its judgment must be annulled;

4. Considering that the provisions of Article L. 761-1 code administrative justice prevent an amount to be charged to the municipality of Saint-Michel-sur-Orge is not, in the present case, the losing party; whereas, in the circumstances of the case, the Outarex, SMABTP, Atelier d'architecture Malisan and Qualiconsult companies should be ordered to pay the municipality of Saint-Michel-sur-Orge the sum of EUR 1,000 each under the same provisions;

DECIDE:
--------------
Article 1: The judgment of the Administrative Court of Appeal of Versailles of December 30, 2013 is canceled.
Article 2: The case is referred to the Administrative Court of Appeal of Versailles.
Article 3: The companies Outarex, SMABTP, Architecture Workshop Malisan and Qualiconsult will pay a sum of 1,000 euros each to the municipality of Saint-Michel-sur-Orge under the provisions of Article L. 761-1 code of administrative justice.
Article 4: The conclusions presented by the companies Outarex, SMABTP, Architecture Workshop Malisan and Qualiconsult under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the municipality of Saint-Michel-sur-Orge, Outarex companies, Architecture Workshop Malisan, Qualiconsult and SMABTP.

Summary :

The Conseil d'Etat, while referring to the civil code and referring to the principles governing the ten-year guarantee of the builders, no longer expressly refers in its reasons to the principles on which articles 1792 and 2270 of the code are based in the measure where the provisions of Article 2270 relating to the ten-year period, included in the new Article 1792-4-1, no longer appear there since the law n ° 2008-561 of June 17, 2008 relating to the reform of the prescription in civil matters.

It follows from the principles governing the ten-year guarantee of manufacturers that disorders appearing within the test period of ten years, likely to compromise the strength of the structure or render it unsuitable for its intended purpose within a foreseeable time, incur their even if they have not been revealed in their full extent before the expiry of the ten-year period.

The ten-year guarantee does not apply to disorders that were apparent when the book was received. However, an administrative court of appeal commits an error of law in dismissing this guarantee on the ground that the employer would have committed a fault in the monitoring and control of the execution of the contract without which he could have known disorder at the time of receipt of the work.

See in the same direction:

EC May 31, 2010, Communes of Parnes, No. 317006
EC May 31, 2010, Communes of Parnes, No. 317006
CE 25 October 1985, City of Toulon c. Balency-Briard company
CE 21 February 1986, OPHLM of the city of Avignon, n ° 51008, T. p. 617.