Absence de nullité d'un marché prévoyant une date de prise d'effet antérieure à sa notification en en méconnaissance de l'article 79 du code des marchés publics

Absence of nullity of a contract providing for an effective date prior to its notification in breach of Article 79 of the Code des Marches Publics

by gmorales on 31 August 2015 | Category: Public markets
Absence de nullité d'un marché prévoyant une date de prise d'effet antérieure à sa notification en en méconnaissance de l'article 79 du code des marchés publics Absence de nullité d'un marché prévoyant une date de prise d'effet antérieure à sa notification en en méconnaissance de l'article 79 du code des marchés publics

Absence de nullité d'un marché prévoyant une date de prise d'effet antérieure à sa notification en en méconnaissance de l'article 79 du code des marchés publics May 22, 2015, AXA Corporate Solutions Insurance Company, n ° 383596

Reasons for nullity of a public contract: Lack of nullity of a contract providing for an effective date prior to its notification in breach of Article 79 of the Code des Marches Publics.
Nullity of the market in case of modification of the risks covered by the insurance contract after the signature of this one.

Rule n ° 1:

The Council of State considers that the parties who agree on a date of effect of the contract prior to its signature and its notification in breach of Article 79 of the Code des Marches Publics which provides that the contract must be notified before any commencement execution does not constitute a defect of a particular gravity justifying its invalidity.

Rule n ° 2:

On the other hand, the Council of State considers that the modifications brought by the master of work to the work program covered by the insurance contract before its signature without informing the contracting party and without checking the impact of the modifications on the consistency of the covered risks constitute a defect of a particularly serious nature such as to vitiate the consent of the latter and justifying the nullity of the contract.

Observations:

If the parties agree, the contract may provide for a date of effect of the contract prior to its signature and notification.

Board of state
No. 383596
ECLI: FR: CESSR: 2015: 383596.20150522
Mentioned in the tables of Lebon collection
7th / 2nd SSR

Mr Olivier Henrard, rapporteur
Mr Bertrand Dacosta, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP CELICE, BLANCPAIN, SOLTNER, TEXIDOR, lawyer (s)

Reading of Friday, May 22, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The Syndicat intercommunal for urban transport of the region of Valenciennes (SITURV) asked the administrative court of Lille to condemn the company AXA Corporate Solutions Insurance to pay him a sum of 1 533 883,80 euros, with interest from the settlement of invoices, as well as a sum of 250,000 euros in damages.
By a judgment n ° 0705745 of March 22, 2011 the administrative court of Lille rejected this request.

SITURV asked the Douai Administrative Court of Appeal to set aside this judgment and to order AXA Corporate Solutions Assurances to pay it the sum of 1,137,830.46 euros excluding taxes, plus interest from the settlement of invoices, as well as 150,000 euros in damages.

By a judgment n ° 11DA00802 of June 11, 2014 the Administrative Court of Appeal of Douai has, on the one hand, annulled the judgment attacked and, on the other hand, decided that it will be, before ruling on the request of the SITURV , proceeded to an expertise.

By a summary appeal, an additional memorandum and a new memorandum, registered on August 11 and November 12, 2014 and February 2, 2015 to the litigation secretariat of the Conseil d'Etat, AXA Corporate Solutions Assurances asks the Conseil d'Etat to:

1 °) to annul this judgment;
2 °) settling the case on the merits, to dismiss the appeal of the SITURV;
3 °) to charge the SITURV payment of the sum of 3 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

- the code of public contracts;
- the code of administrative justice;

After hearing in open session:

- the report of Mr Olivier Henrard, master of petitions,
- the conclusions of Mr Bertrand Dacosta, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Célice, Blancpain, Soltner, Texidor, lawyer of the company Axa Corporate Solutions Assurances, and to the SCP Lyon-Caen, Thiriez, lawyer of the Syndicat intercommunal for the urban transports the Valenciennes region (SITURV), Bouygues TP regions France, Eiffage TP and Norpac;

1. Considering that it appears from the documents in the file submitted to the judges of the fund that the Syndicat intercommunal for urban transport of the region of Valenciennes (SITURV), in its capacity as developer, subscribed as of May 12, 2004 to AXA Corporate Solutions Assurances, an "all construction risks" insurance policy for the purpose of guaranteeing any claims affecting the construction program of the first tram line in the Valencian agglomeration; that, by a letter of February 20, 2006, the company AXA Corporate Solutions Assurances refused the compensation for a disaster occurred on this site, consisting of the subsidence of the embankments of a roundabout, following the installation of a section of railroad crossing it perpendicularly; that, by a judgment of March 22, 2011, the administrative court of Lille rejected the request made by the SITURV that the company AXA Corporate Solutions Assurances be condemned to pay him a sum of 1 533 883,80 euros, with interests from the settlement of the invoices, as well as a sum of 250,000 euros in damages; that in a judgment of June 11, 2014 against which the company AXA Corporate Solutions Insurance appealed in cassation, the Administrative Court of appeal of Douai has, on the one hand, annulled this judgment and, on the other hand, judged that the SITURV was justified in requesting that AXA Corporate Solutions Assurances be ordered to pay compensation, and finally decided that an expert assessment should be made before ruling on SITURV's request that AXA Corporate Solutions Assurances be ordered to pay him the sum of 1,137,830.46 euros excluding taxes, plus interest from the settlement of the invoices, as well as 150,000 euros in damages;

2. Considering that when the parties submit to the judge a dispute relating to the execution of the contract which binds them, it is in principle to the latter, in view of the requirement of fair contractual relations, to apply the contract; that, however, in the case only where it finds an irregularity invoked by a party or relieved of its own motion by him, relating to the unlawfulness of the content of the contract or to a defect of a particularly serious gravity, in particular as regards the conditions under which the parties have given their consent, he must dismiss the contract and can not settle the dispute on the contractual ground;

3. Considering that under Article 79 of the Code des Marches Publics, applicable to the contract in dispute: "Public contracts must be notified before any commencement of execution"; that as noted by the court the parties to the contract have provided, by the stipulations of the "special conditions" thereof, a date of effectiveness prior to its signature as notification, in ignorance aforementioned provisions of Article 79 of the Code des Marches Publics; that in deciding that this illegality did not amount to unlawfulness of the contract and that the irregularity committed was not of sufficient gravity, in particular in that it had not vitiated the consent of the parties, to justify that the application of this contract was dismissed, the court did not incorrectly describe the facts of the case;

4. Considering, however, that the applicant company argued before the court that the disputed contract was void because of the modifications made by the owner and the principal, before its signature, to the program of works which the contract of The insurance had to cover, since by thus misleading its co-contractor on the consistency of the risks covered, the SITURV had committed an irregularity of a particularly serious nature such as to vitiate the latter's consent; that by abstaining to pronounce on this means and to investigate if the error on the substance of the work ensured by the contract in dispute, resulting from the modification of their program decided without informing the candidates to the market of insurance, characterized a misconduct of such severity as to warrant the dismissal of the contract and the settlement of the dispute in another jurisdiction, the court gave insufficient reasons for its judgment and erred in law; whereas, consequently, the judgment under appeal must be annulled;

5. Considering that it is appropriate, in the circumstances of the case, to charge the SITURV payment of the sum of 3 000 euros to the company AXA Corporate Solutions Insurance, under the provisions of Article L. 761-1 of the Code of Administrative Justice; These provisions, however, prevent an amount from being charged to the company AXA Corporate Solutions Insurance which is not, in the present case, the losing party;

DECIDE:
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Article 1: The judgment of 11 June 2014 of the Douai Administrative Court of Appeal is set aside.
Article 2: The case is referred to the Douai Administrative Court of Appeal.
Article 3: The intercommunal syndicate for urban transport of the region of Valenciennes will pay a sum of 3,000 euros to AXA Corporate Solutions Insurance under the provisions of Article L. 761-1 code administrative justice.
Article 4: The conclusions presented by the Syndicat intercommunal for urban transport of the region of Valenciennes and the companies Bouygues TP regions France and Eiffage TP under the provisions of Article L. 761-1 code administrative justice are rejected.

Article 5: This decision will be notified to the company AXA Corporate Solutions Insurance, to the Syndicat intercommunal for urban transport of the region of Valenciennes and Bouygues TP France and Eiffage TP regions.

Summary Parties to the contract having agreed on an earlier date of signature and notification, in breach of Article 79 of the Public Procurement Code (CMP), which provides that the contract must be notified before any beginning of execution. That unlawfulness does not render the contract unlawful and the irregularity committed is not of sufficient gravity, in particular since it did not vitiate the consent of the parties, to justify the application of that contract be rejected.

Litigation to execute a contract. Parties to the contract having agreed on an earlier date of signature and notification, in breach of Article 79 of the Public Procurement Code (CMP), which provides that the contract must be notified first and foremost start of execution. That unlawfulness does not render the contract unlawful and the irregularity committed is not of sufficient gravity, in particular since it did not vitiate the consent of the parties, to justify the application of that contract be rejected.

[RJ1] Cf. EC, Assembly, December 28, 2009, Municipality of Béziers, No. 304802, p. 509.