The termination, even for misconduct, of a public service delegation may result in the payment of an indemnity to the delegatee
Termination, even for lack of a public service delegation, may result in the payment of compensation to the holder.
The delegatee is entitled to obtain compensation for the undepreciated value of the return goods as a result of the termination of a public service delegation before the end of the term, regardless of the reason for the termination as well as the loss of profit. delegated activity
In the wake of its decision of 21 December 2012, Douai, the Council of State recalls that the delegate is entitled to compensation for the undepreciated value of the property of return when the public person terminates the contract before its term
However, it provides two very useful details on the dealer's right to compensation:
The delegatee must ensure that he provides sufficient proof of his loss by gathering all the accounting documents necessary for the determination of the undamaged value of the goods of return (operating report, purchase value, residual value, certified by a commissioner accounts or a chartered accountant, etc.).
Board of state
N ° 383208
Mr Jean-Dominique Nuttens, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP MONOD, COLIN, STOCLET; SCP DELAPORTE, BRIARD, TRICHET, lawyer (s)
Reading of Monday, May 4, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Domaine Porte des Neiges has asked the Administrative Court of Montpellier to condemn the municipality of Porta to pay him the sum of 12 782 702 euros in compensation for damage resulting from breach of its contractual obligations and the termination of the agreement of 12 January 2006. By a judgment n ° 1002759 of May 25, 2012, the administrative court of Montpellier rejected its request.
In a judgment no. 12MA02744 of May 26, 2014, the Administrative Court of Appeal of Marseille rejected the request for appeal filed by the company Domaine Porte des Neiges against this judgment, asking the court to note the termination of the agreement of the 12 January 2006, in the alternative to judge that this termination had occurred on grounds of general interest, to requalify, as necessary, the decision of suspension of October 20, 2009 in decision of termination, in a subsidiary way, if it noted the nullity of the agreement of 12 January 2006, to rule that nothing prevents in this case also that it is compensated, finally to condemn consequently the municipality of Porta to pay him the sum of 12 782 702 euros.
By a summary appeal, an additional memorandum and a new memorandum, registered on 28 July, 28 October 2014 and 18 February 2015 to the litigation secretariat of the Conseil d'Etat, the company Domaine Porte des Neiges asked the Conseil d'Etat:
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his appeal;
3 °) to charge the commune of Porta the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mr Jean-Dominique Nuttens, master of requests in extraordinary service,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Delaporte, Briard, Trichet, a lawyer of the company Domaine Porte des Neiges, and to the SCP Monod, Colin, Stoclet, lawyer of the municipality of Porta;
Considering the note under deliberation, recorded on April 10, 2015, presented by the municipality of Porta;
1. Considering that it appears from the documents in the file submitted to the judges of the merits that in order to realize a new tourist unit in the form of a concerted development zone, the municipality of Porta concluded on July 2, 1996 with the Domaine Porte des Neiges, Porte des Neiges and Les Residences Porte de Neiges, a convention, amended on 17 December 2004, establishing the legal framework in which the specific agreements relating to land development and the construction of community management of public facilities and snow removal, construction and operation of ski lifts, and the animation and promotion of the resort; that, on January 12, 2006, the municipality of Porta concluded with the company Domaine Porte des Neiges a particular convention by which it entrusted to this one the development and the exploitation of the lifts of the future station; that in application of this convention, the company Domaine Porte des Neiges realized the chairlift said of the Estany, as well as the tracks which were the complement of it; that, on October 20, 2009, the municipality gave the company notice to justify a bank guarantee of an amount equivalent to the cost of equipment and operating costs thereof and suspended the execution of the agreement of the 12 January 2006 before indicating to the company, on January 15, 2010, that it considered this agreement null and void in the absence of production of this bond within the two-month period; that the appeal in cassation of the company Domaine Porte des Neiges against the judgment of the administrative court of appeal of Marseilles of May 26, 2014 rejecting its appeal directed against the judgment of the administrative court of Montpellier of May 25, 2012 should be regarded as directed against the judgment as, after having held that the municipality of Porta had wrongly found the lapse of the agreement which bound it with this company, he rejected his conclusions compensator;
2. Considering, on the one hand, that after having noted that the municipality had put an end to the execution of the convention of 12 January 2006 relating to the development and operation of the ski lifts on the ground of what it could see the "Lapse" since the company had not satisfied the requirement of justification of a bank guarantee, the court held that the municipality had not proceeded to its termination; that in so doing, while the municipality had, in doing so, put an end to the execution of the contract for a reason alleging non-compliance with contractual stipulations by the company, the court has distorted the clauses of the contract relating to its "lapse "
3. Considering, on the other hand, that in order to refuse to grant the claim for compensation for the undepreciated portion of the property of return, the court also held that the company did not establish that in view of the Because of the structural and heavy losses in the operation of the ski lift in the absence of implementation of the other equipment of the station, compensation for the undepreciated value of the assets it requested would exceed the present value of the operating losses that it should have been foreseeable for the duration of the agreement; that by ruling thus, while in the event of termination of a public service delegation before its term and for whatever reason, the delegatee is entitled to compensation for the undamortized value of the goods of return, the the fact that the operation of the delegation would have been in deficit during the remaining duration of the agreement being in this respect inoperative, the court erred in law;
4. Considering that follows from the foregoing that the judgment of the Marseilles Administrative Court of Appeal must be annulled in so far as it dismissed the compensatory claims of the company Domaine Porte des Neiges as a consequence of the harmful consequences of early termination of the agreement;
5. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to Domaine Porte des Neiges, which is not, in this proceeding, the losing party; whereas, on the other hand, in the circumstances of the case, the City of Porta should be ordered to pay a sum of 3,000 euros to Domaine Porte des Neiges under the same provisions ;
Article 1: The decision of the Administrative Court of Appeal of Marseille of May 26, 2014 is annulled in so far as it rejected the compensatory conclusions of the company Domaine Porte des Neiges as a consequence of the premature termination of the agreement .
Article 2: The case is referred to this extent to the Administrative Court of Appeal of Marseille.
Article 3: The municipality of Porta will pay the company Domaine Porte des Neiges a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the company Domaine Porte des Neiges and the municipality of Porta.
Summary: 39-04-05-02-02 In the event of the termination of a public service delegation (PSD) before its term and for whatever reason, the delegatee is entitled to compensation for the unamortized value of return goods [RJ1]. The fact that the operation of the delegation would have been in deficit during the remaining period of the agreement is in this respect inoperative.
60-04-03-02 In the event of the termination of a public service delegation (PSD) before its term and for whatever reason, the delegatee is entitled to compensation for the undeducted value of the goods of return [ RJ1]. The fact that the operation of the delegation would have been in deficit during the remaining period of the agreement is in this respect inoperative.
[RJ1] See CE, Assembly, December 21, 2012, Municipality of Douai, No. 342788, p. 477.