Aucune urgence à suspendre l'ordonnance n°2015-899 du 23 juillet 2015 relative aux marchés publics

No urgency to suspend the order n ° 2015-899 of July 23rd, 2015 relative to the public markets

by gmorales on 20 October 2015 | Category: Public markets
Aucune urgence à suspendre l'ordonnance n°2015-899 du 23 juillet 2015 relative aux marchés publics Aucune urgence à suspendre l'ordonnance n°2015-899 du 23 juillet 2015 relative aux marchés publics

Aucune urgence à suspendre l'ordonnance n°2015-899 du 23 juillet 2015 relative aux marchés publics This ord. October 16, 2015, National Council of Bars. No. 388596
In this case, the Council of State recalls it can not be urgent to suspend the order n ° 2015-899 of 23 July 2015 relating to public contracts since this text has not yet entered into force.

Context reminder :

Directive 2014/24 / EC of the European Parliament and of the Council provides for new rules for the award and execution of public contracts. This Directive must be implemented in national law by 18 April 2016 at the latest pursuant to Article 90 of the Directive.
Article 42 of the Law of 20 December 2014 on the simplification of the life of companies and introducing various provisions for the simplification and clarification of the law and administrative procedures authorized the Government to take any measure within the scope of the law " necessary to transpose Directive 2014/24 / EU (...) "by order. The order n ° 2015-899 of 23 July 2015 relative to the public markets was taken under this authorization

The scope of the exclusions from the legal services provided for in Directive 2014/24 / EC:

Article 10 (d) of Directive 2014/24 / EC excludes from the scope of the Directive five categories of legal services:

  • Representation of a client in a conciliation, arbitration or proceeding before the courts;
  • Legal advice for legal action or "where there are tangible signs and high probabilities that the matter to which the advice of the counsel is directed will be the subject of such proceedings as long as the advice comes from a lawyer " ;
  • Certification services and document authentication by notaries;
  • Legal services provided by legal administrators or guardians;
  • Legal services related to the exercise of public authority.

The scope of exclusions from legal services provided for in article 14-10 of order n ° 2015-899 of July 23, 2015:

Article 14-10 of the Ordinance of 23 July 2015 excludes from the scope of the Directive only three categories of legal services:

  • Certification services and document authentication by notaries;
  • Legal services provided by legal administrators or guardians;
  • Legal services related to the exercise of public authority.

The challenge by the National Bar Council of the lack of full transposition of Directive 2014/24 / EC:

By an application dated 18 September 2015, the National Council of Bars and Law Societies decided to appeal to the Conseil d'État for the annulment of the order ° of 23 July 2015 in that it does not transpose in its entirety Directive 2014 / 24 / EC. More specifically, the Conseil national des Barreaux complains that the French Government does not exclude from the scope of the order the public procurement of legal services relating to representation before a court and the council related to proceedings before a court, and not to explicitly provide for a lighter procedure for awarding public contracts for legal services as defined by Directive 2014/24 / EU.
At the same time, the National Bar Council has also decided to refer the matter to the judge of the State Council for interim relief in order to immediately suspend the execution of the order.

The rejection of the interim suspension by the Council of State for lack of urgency to suspend a text that has not yet entered into force
The interim suspension procedure, governed by Article L. 521-1 of the Code of Administrative Justice, makes it possible to obtain, within a short period of time, the suspension of an administrative act pending the judge's final decision on its legality when two conditions are simultaneously met: there must be an emergency situation justifying the suspension and there must be serious doubt as to the legality of the contested act.
In the present case the judge hearing the application for interim relief finds that the contested order has not yet entered into force: it is therefore not applicable. According to the information provided by the Government, the entry into force of the Ordinance will not take place before 1 April 2016. In addition, the judge hearing the application for interim relief states that the Council of State will be able to pronounce definitively on the request to cancel the order in the coming months.
The judge of the Council of State therefore considers that there is no urgency justifying a possible suspension: waiting for the final judgment of the case does not create any difficulty. In the absence of urgency, the judge hearing the application for interim measures refuses to suspend the order, without having to examine the second condition provided for by Article L. 521-1 of the Code of Administrative Justice (whether or not there is serious doubt about legality).

Some observations:
The assessment of the urgent applications judge does not prejudge the assessment of the legality of the order by the Conseil d'État.

However, the provisions of Article 10 (d) of Directive 2014/24 / EC do not preclude Member States from deciding not to apply these exclusions within the framework of the national law of public procurement. In fact, there is no obligation for Member States to provide for such exclusions in their national legislation, the only obligation being to not provide for exclusions other than those expressly provided for in the directives. In this context, the provisions envisaged by the French government could be considered as not contrary to European law even if common sense militates in the opposite direction and this on certain points.
On the one hand, it is difficult to see what would exempt the provision of legal services from a lighter procedure identical to that currently provided for by the provisions of Article 30 of the Public Procurement Code.

On the other hand, it must be admitted, the ordinance as written today is certainly the worst text governing the public order that has never been read: everything is approximation, uncertainty, incompleteness, arbitrariness and aberration. In this respect, it is difficult to see how the benefits of legal representation would not be "totally" excluded from the public order since the deadlines for publicity and competition are not in agreement with the requirements of certain procedures (for example: we will not launch an advertising and tendering procedure to select a lawyer to defend on a procedure of extreme urgency such as the pre-contractual summary or to assist an elected official who has just been placed in custody ………..).