The global mission of a partnership contract can not be subject to a conditional phase
CE 29 April 2015, Union for waste recovery of Guadeloupe, n ° 386748
The overall mission of a partnership contract can not be conditional. In a judgment delivered on April 29, 2015, the Council of State recalls that a contract can not meet the legal definition of the partnership contract if it does not aim to entrust the holder with a global mission. A partnership contract may provide for conditional tranches, but these can not relate to the overall mission that characterizes this type of contract since it is not certain that they will be strengthened.
Rule n ° 1: A partnership contract is a contract which entrusts a third party with a global mission
Article L. 1414-1 of the general code of local authorities recalls that the partnership agreement allows a public authority to entrust a company with the overall mission to finance, design all or part, build, maintain and manage works or projects. public facilities and services contributing to public service missions of the administration, in a long-term framework and against a payment made by the public person and spread over time.
Rule n ° 2: A partnership agreement which provides that the global mission is optional (presented as a conditional phase) does not meet the legal requirements of article L. 1414-1 of the CGCT
In a judgment dated April 29, 2015, Sté Urbaser Environnement, the State Council recalls that to be regular, a procedure for awarding a partnership contract must not disregard the overall mission provided by L. 1414-1 of the general code of local authorities.
This was the case in this case because in this case, the Council of State is censoring a procedure for signing a partnership contract that does not comply with this condition. The consultation rules provided, firstly, that the firm tranche of the contract includes only study services, whereas the conditional phase includes an overall service relating to studies, construction, commissioning and 'maintenance and upkeep of the installations and, secondly, that the consolidation of the conditional phase is subject to a decision by the contracting authority, which is consequently bound by the only services provided for by the tranche. firm of the contract. For the High Court, this contract, the firm portion is limited to design studies, does not entrust a global mission in violation with the provisions of Article L. 1414-1 code general local authorities.
In the present case, that overall task was subject to a conditional period whose consolidation was left to the free discretion of the contracting authority. However, it is established that the contracting authority is not bound to the conditional periods of a contract, and that the holder of the contract can not also claim any right acquired in the consolidation of the latter so that nothing did not ensure that a global mission would be truly entrusted to the future partner.
Consequently, if there is no legislative or regulatory provision preventing the contracting authority from including conditional periods in a partnership contract, the provisions of Article L 1414-1 of the General Code of Territorial Authorities require it, where applicable. to ensure that the overall mission it intends to entrust to the holder is at least characterized in the firm tranche.
A partnership contract may provide for conditional periods but these can not relate to the overall mission that characterizes this type of contract.
Board of state
N ° 386748
ECLI: FR: CESSR: 2015: 386748.20150429
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr Jean-Dominique Nuttens, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP PIWNICA, MOLINIE, lawyer (s)
reading from Wednesday, April 29, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Urbaser Environnement asked the judge of the courts of the Administrative Court of Basse-Terre, on the basis of Article L. 551-1 code administrative justice, to cancel the procedure of signing the partnership contract launched by the union of waste recovery of Guadeloupe (SYVADE) and on the realization of the project of environmental platform multi-threaded treatment of household and similar waste.
By order no. 1401158 of 11 December 2014, the judge hearing the application for interim relief granted this request.
By a summary appeal, an additional memorial and a new brief, registered on December 26, 2014, January 12 and February 24, 2015 in the litigation secretariat of the Conseil d'Etat, SYVADE asks the Conseil d'Etat:
1 °) to cancel this order;
2 °) ruling in summary, to reject the application of the company Urbaser Environment;
3 °) to charge the company Urbaser Environment a sum of 7,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- Directive 2007/66 / EC of the European Parliament and of the Council of 11 December 2007;
- the general code of local authorities;
- 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 Lyon-Caen, Thiriez, lawyer of the union of valorization of the waste of Guadeloupe, and to the SCP Piwnica, Molinié, lawyer of the company Urbaser Environment;
Considering the note under deliberation, recorded on April 9, 2015, presented by SYVADE;
1. Considering that according to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of publicity and competitive bidding to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service. / The judge is seized before the conclusion of the contract. " that under the terms of Article L. 551-2 of this Code: "I. - The judge can order the author of the breach to comply with his obligations and suspend the execution of any decision that relates to the the contract, unless it considers that, in the light of all the interests that may be adversely affected, including the public interest, the negative consequences of such measures may outweigh their benefits. It may, moreover, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to appear in the contract which do not comply with those obligations. (...) "; that according to Article L. 551-10 of the same code: "The persons authorized to initiate the remedies provided for in Articles L. 551-1 and L. 551-5 are those who have an interest in concluding the contract and who are likely to be harmed by the alleged breach (...) ";
2. Considering that it appears from the documents in the file submitted to the Judge of the Administrative Court of Basse-Terre that the waste recovery syndicate of Guadeloupe (SYVADE) launched in October 2012 a competitive dialogue procedure with a view to the conclusion of a partnership agreement for the purpose of entrusting the incumbent with a mission concerning the design, construction, partial financing, commissioning and part of the maintenance and upkeep of a multi-threaded environmental platform. treatment of household and similar waste; that by the order contested, the judge of the interim proceedings, seized on the basis of Article L. 551-1 code of administrative justice by the society Urbaser Environment which, having been admitted to submit an offer, does not not filed, canceled the award procedure;
3. Considering, in the first place, that the fact that the undertakings forming the grouping proposed for the award of the partnership contract were not summoned to the proceedings by the judge hearing the application for interim relief did not affect the contradictory nature of the the procedure, recalled by the provisions of Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, with regard to the applicant company; that it can not therefore usefully invoke for this reason an irregularity of the contested order;
4. Considering, secondly, that any person is entitled to act, on the basis of Article L. 551-1 of the Code of Administrative Justice, when it is entitled, given its field of activity, to execute the contract, including when it has not submitted an application or tender if it has been dissuaded by the breach of the advertising and competition requirements it invokes; that the judge of interim relief has not erred in law by judging the company Urbaser Environment admissible to act even if it had renounced to present an offer;
5. Considering, thirdly, that under Article L. 1414-1 of the General Code of Local Authorities: "I. - The partnership contract is an administrative contract by which a local authority or a local public institution entrusts to a third party, for a period determined according to the amortization period of the investments or funding modalities chosen, a global mission for the purpose of constructing or transforming, maintaining, maintaining, operating or management of works, equipment or immaterial goods necessary for the public service, as well as all or part of their financing, with the exception of any participation in the capital. (...) It may also have as its object all or part of the design of such works, equipment or immaterial goods as well as services that contribute to the exercise, by the public corporation, of the public service mission for which it is responsible (...) ";
6. Whereas the President of the Court of First Instance pointed out, by a sovereign assessment without denaturing and by sufficient reasoning, that the provisions of the consultation regulation provided, firstly, that the firm part of the contract contained only studies while the conditional phase included a global service relating to studies, construction, commissioning, and the maintenance and upkeep of the facilities and the strengthening of the unit. conditional was subject to a decision of the union, which was then bound by the only benefits provided for in the firm portion of the contract; that by doing so, he did not incorrectly qualify the documents of the file by judging that the contract, whose fixed tranche was thus limited to the only design studies, did not confide a global mission within the meaning of the provisions of Article L. 1414-1 of the general code of territorial collectivities;
7. Considering, fourthly, that by ruling that the irregularity of the award procedure, which prevented the submission of an offer meeting the legal requirements of a partnership contract, constituted a failure to comply with the disclosure requirements and competition to dissuade the submission of competing offers and thus likely to harm the company Urbaser Environment, which had waived to submit an offer on the basis of this irregularity, the judge of the interim, by a sufficiently reasoned decision on this point, did not err in law or incorrectly characterize the facts submitted to him;
8. Lastly, it follows from the very wording of Article L. 551-2 of the aforementioned Code of Administrative Justice, which transposes the Directive of the European Parliament and of the Council of 11 December 2007 amending Directives 89 / 665 / EEC and 92/13 / EEC as regards the improvement of the effectiveness of review procedures in respect of the award of public contracts, only if the judge hearing the application for interim relief may not suspend the execution of any decision the conclusion of the contract where it considers, in the light of all the interests that may be adversely affected, including the public interest, that the negative consequences resulting from such suspension measures may outweigh their benefits, these provisions are not applicable if it considers that the breaches noted must result in the cancellation of the procedure; that, therefore, the judge in chambers did not err in law in holding that the applicant union could not usefully invoke the existence of a general interest which would prevent the suspension of a decision relating to the conclusion of the contract if the breach was such as to justify the cancellation of the contract award procedure;
9. Considering that it follows from all the foregoing that the appeal presented by the SYVADE must be rejected, including its conclusions submitted under Article L. 761-1 code administrative justice; that in the circumstances of this case, the payment of a sum of EUR 3 000 to Urbaser Environnement should be charged to SYVADE on the basis of the same provisions;
Article 1: The appeal of the union for waste recovery of Guadeloupe is rejected.
Article 2: The waste recycling union of Guadeloupe will pay Urbaser Environnement a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the waste recovery syndicate of Guadeloupe and Urbaser Environnement.
Contract, consisting of a firm and a conditional phase, for the purpose of entrusting the incumbent with a mission relating to the design, construction, partial financing, commissioning and part of the maintenance and upkeep of a household waste treatment platform. ,,, The consultation by-law provides, first, that the firm portion of the contract includes only education services while the conditional phase includes an overall benefit relating to studies, construction , commissioning and the maintenance and upkeep of the installations and, secondly, that the strengthening of the conditional phase is subject to a decision by the contracting authority, who is subsequently bound by the only services provided for by the firm part of the contract. ,,, This contract, the firm part of which is thus limited to design studies only, does not entrust a global mission within the meaning of provisions of Article L. 1414-1 of the General Code of Territorial Communities.
Any person is entitled to act, on the basis of Article L. 551-1 of the Administrative Justice Code (CJA), when it has vocation, in view of its field of activity, to execute the contract, including when it has not submitted an application or tender if it has been dissuaded by the breach of the advertising and competition requirements it invokes.