Le contrôle du juge du référé précontractuel sur la candidature des personnes publiques

Pre-contractual judge's review of the candidacy of public persons

by gmorales on 13 October 2015 | Category: Pre-contractual & Contractual referral
Le contrôle du juge du référé précontractuel sur la candidature des personnes publiques Le contrôle du juge du référé précontractuel sur la candidature des personnes publiques

Le contrôle du juge du référé précontractuel sur la candidature des personnes publiques CE 18 September 2015, Management Association of the National Conservatory of Arts and Crafts (CNAM), n ° 390041

In this case, the Council of State recalls the nature and the degree of control that the judge of the pre-contractual referendum must relate to a public establishment which decides to be a candidate for a public contract.

Rule n ° 1:

The pre-contractual judge is competent to check the validity of the admission or rejection of an application.

  • With regard to the application of a legal person of public law, it is for the judge of the pre-contractual judge to verify that the execution of the contract in question falls within the scope of his competence.
  • With regard to the candidacy of a public institution, it is for the judge of the pre-contractual judge to verify that the performance of the contract in question does not violate the principle of specialty to which he is bound. More specifically, it is up to it to verify whether the services covered by the subject of the contract constitute the normal complement of its statutory mission.

Rule n ° 2:

The powers conferred on the judge of the pre-contractual injunction can not be exercised after the signature of the contract or when the contracting authority decides, for reasons of general interest, not to proceed with the consultation procedure (decision not to proceed) . In such a case, the judge hearing the application for interim relief makes an order for no locus to give judgment.

Board of state
N ° 390041
ECLI: FR: CESSR: 2015: 390041.20150918
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr Olivier Henrard, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP DELVOLVE; SCP DIDIER, PINET, lawyer (s)
Reading of Friday, September 18th, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

SARL Sitadin Town Planning and Landscape and the SCP Garnier, Bois, Dohollou, Souet, Arion, Ardisson, Grenard, Levrel, Guyot-Vasnier, Collet, Bouloux-Pochard, The Derf-Daniel asked the 31 March 2015 the administrative court of Rennes , on the basis of Article L. 551-1 of the Code of Administrative Justice, to cancel the whole of the procedure implemented by the municipality of Brie for the award of a contract relating to studies of planning for the extension of the agglomeration within the framework of a concerted development zone (ZAC).

By an order n ° 1501493 of April 22nd, 2015, the administrative court of Rennes canceled the litigious procedure as from the examination of the candidatures.

By a summary appeal and a supplementary memorandum, registered on 7 and 20 May 2015 at the litigation secretariat of the Conseil d'Etat, the management association of the National Conservatory of Arts and Crafts (CNAM) of the Pays de la Loire and the URBéA grouping / Atelier Bouvier Environnement / Gwenaël Desnos / National Conservatory of Arts and Crafts Pays de la Loire ask the State Council:

1 °) to cancel this order;
2 °) to put at the expense of the SARL Sitadin Town Planning and Landscape and the SCP Garnier and others the sum of 4 000 euros under the provisions of Article L. 761-1 code administrative justice.
Considering the other parts of the file;

Viewed:
- the code of public contracts;
- Having regard to Law No 71-1130 of 31 December 1971;
- having regard to Decree No 88-413 of 22 April 1988;
- the code of administrative justice;

After hearing in open session:
- the report of Mr Olivier Henrard, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Delvolvé, lawyer of the management association of the National Conservatory of Arts and Crafts of Pays de la Loire and the group URBéA / Atelier Bouvier Environnement / Gwenaël Desnos / National Conservatory Arts and Crafts Pays de la Loire, and SCP Didier, Pinet, lawyer of SARL Sitadin Town Planning and Landscape and SCP Garnier and others;

1. Considering that under the terms of Article L. 551-1 code administrative justice: "The president of the administrative court, or his delegate, can be seized in case of breach of the obligations of advertising and competition to which is subject to the award of public contracts (...) The persons entitled to act are those who have an interest in concluding the contract and who are likely to be harmed by this failure (...). The president of the administrative court may be seized before the conclusion of the contract. He may order the author of the breach to comply with his obligations and suspend the award of the contract or the execution of any decision relating thereto. It may also annul these decisions and delete the clauses or requirements intended to appear in the contract which do not comply with those obligations (...). The president of the administrative court or his / her delegate rules in the first and last instance in the form of interim measures ";

2. Considering that it appears from the documents of the file submitted to the Judge Pre-contractual interim that the municipality of Brie launched, on July 1, 2014, a negotiated procedure for the realization of urban planning studies on the creation of a Joint development zone ; that the offer of the group composed of the companies URBéA and Atelier Bouvier Environnement, Gwenaël Desnos and the management association of the National Conservatory of Arts and Crafts of the Pays de la Loire, was retained by a deliberation of March 16, 2015 of the municipal council Brie; that, by an order of 22 April 2015, the Judge pre-contractual has, at the request of SARL Sitadin Town Planning and Landscape and SCP Garnier and others, canceled this procedure from the examination of applications; that the grouping awarded and the management association of the National Conservatory of Arts and Crafts Pays de la Loire appeal in cassation against this order;

3. Whereas, in order to set aside the contested proceedings, the pre-contractual judge granted the plea that he did not join the public service teaching and research mission of the National Conservatory of Arts and Crafts, public establishment, to deliver legal advice services in urban planning law;

4. Considering that it is for the Pre-contractual Pre-Trial Judge, seized with the means on this point, to ensure that the assessment made by the Contracting Authority to exclude or admit an application does not constitute a breach of the obligations of advertising and competitive bidding ; that in this context, where the applicant is a legal person under public law, it is his responsibility to verify that the execution of the contract in question falls within the scope of his competence and, in the case of a public institution would not disregard the principle of specialty to which he is bound;

5. Whereas, however, it appears from the documents submitted to the judge of the Rennes Administrative Court that it is the management association of the National Conservatory of Arts and Crafts of the Pays de la Loire, a legal person under private law, who was a member of the grantee group of the disputed market and not the public establishment itself; Thus, the judge of the interim relief, which was based on the lack of knowledge, by the public institution National Conservatory of Arts and Crafts, the principle of specialty, confining itself, moreover, to take into account the statutory object that establishment, without ascertaining whether the services which were the subject of the contract constituted the normal complement of its statutory mission and were useful for the exercise thereof, erred in law; that, consequently, without it being necessary to examine the grounds of the appeal, the applicants are justified to ask for the cancellation of the order contested;

6. Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated;

7. Considering that it follows from the provisions cited above of Article L. 551-1 of the Code of Administrative Justice that the powers conferred on the administrative judge, by virtue of the special procedure which they establish, can not be exercised either. after the conclusion of the contract or when the contracting authority decides, for reasons of general interest, not to follow the consultation procedure;

8. Considering that it follows from the investigation that, on 4 May 2015, after the lodging of the application, the Brie municipal council declared the contested procedure without cause for reasons of general interest, with a view to preparing a new consultation; that there is therefore no longer need to rule on the application of SARL Sitadin Town Planning and Landscape and the SCP Garnier et al presented to the Judge pre-contractual;

9. Considering that it is not necessary, in the circumstances of the case, to grant the conclusions presented by the parties under the provisions of Article L. 761-1 code administrative justice;

DECIDE:
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Article 1: The order of 22 April 2015 of the judge of the pre-contractual summary of the administrative court of Rennes is canceled.
Article 2: There is no need to rule on the request of SARL Sitadin Town Planning and Landscape and the SCP Garnier et al before the pre-contractual judge referred.
Article 3: The conclusions of the management association of the National Conservatory of Arts and Crafts of the Pays de la Loire and the group URBéA - Bouvier Environnement Workshop - Gwenaël Desnos - National Conservatory of Arts and Crafts of the Pays de la Loire, as well as those of SARL Sitadin Town Planning and Landscape and the SCP Garnier and others, presented under the provisions of Article L. 761-1 code administrative justice are rejected.
Article 4: This decision will be notified to the management association of the National Conservatory of Arts and Crafts Pays de la Loire, URBéA companies, Atelier Bouvier, Environment Gwenaël Desnos and the National Conservatory of Arts and Crafts Pays de la Loire , at the SARL Sitadin Town Planning and Landscape, at SCP Garnier, Bois, Dohollou, Souet, Arion, Ardisson, Grenard, Levrel, Guyot-Vasnier, Collet, Bouloux-Pochard, Derf-Daniel.

Summary :
It is for the pre-contractual judge to make sure that the assessment made by the contracting authority in order to exclude or admit an application does not constitute a breach of the requirements of advertising and call for competition. In this context, where the candidate is a legal person governed by public law, he is responsible for verifying that the performance of the contract in question falls within the scope of his competence and, in the case of a public institution, would not disregard the principle of specialty to which he is bound. A public institution does not disregard the principle of specialty by applying for a contract whose object is a normal complement to its statutory mission.

EC 16 October 2000, Mediterranean Company of Water Services, No. 212054, p. 422 but not filed on this point. Comp., Regarding the respect by the contracting authority of the principle of specialty, CE, 21 June 2000, Syndicat intercommunal de la Côte d'Amour and the Guérande peninsula, No. 209319, p. 283., ,, [RJ2] Cf. EC, Public Works Section, Opinion, 7 July 1994, No. 356089.