Convention d'occupation du domaine public : le recours en contestation de la validité du contrat est obligatoire !

Convention of occupation of the public domain: the appeal in dispute of the validity of the contract is obligatory!

by gmorales on 5 January 2016 | Category: Public Law
Convention d'occupation du domaine public : le recours en contestation de la validité du contrat est obligatoire ! Convention d'occupation du domaine public : le recours en contestation de la validité du contrat est obligatoire !

Convention d'occupation du domaine public : le recours en contestation de la validité du contrat est obligatoire ! CE 2 December 2015, Ecole Centrale de Lyon, req.no. 386979
In this case, the Council of State lays down the rule according to which any third party to an agreement of occupation of the public domain and which is likely to be aggrieved in his interests in a sufficiently direct and certain way by his handover or its clauses, can to bring an action challenging the validity of the agreement before the contract judge.

Rule n ° 1: The Council of State applies the appeal in dispute of the validity of the contract to the conventions of occupation of the public domain

An unsuccessful candidate or any third party to an agreement of occupation of the public domain that is likely to be prejudiced in his interests in a sufficiently direct and certain manner by the conditions of his award or his clauses may bring an appeal in contestation of the validity of the contract shall, where appropriate, suspend suspension.
The solution made by the Council of State is logical insofar as if the "Tropic" appeal was reserved, by the notion of "competitors ousted" only administrative contracts subject to obligations of advertising and competition, the recourse "Tarn et Garonne" does not know the same limits since it targets all third parties. It is therefore logical that its scope encompasses occupancy agreements in the public domain which are administrative contracts.

Rule n ° 2: Different avenues of recourse to challenge public domain occupation conventions

In a judgment dated March 10, 2006, Sté Unibail Management, Req.n ° 284802, the Council of State recalled that an agreement of occupation of the public domain is insusceptible to be the subject of a pre-contractual reference (and consequently of a contractual referent) while it was passed according to a publicity and competition procedure freely defined by a public person.

This solution is questionable: from the moment a public purchaser freely decides, even though he is not obliged to do so, to award a contract according to an advertising and competitive bidding procedure, he would be "right" to allow all the economic operators who participated in the procedure to usefully have a quick and effective remedy allowing them to challenge the award procedure before the occupation agreement of the domain public is signed. Unfortunately, this is not the case at the moment. It would be fortunate for a company to take the matter to the Court of Justice of the European Union. It is not clear why an ousted candidate would be deprived of any effective remedy before the signature of the Convention: this is a clear violation of the right to an effective remedy.

In any event, in the current state of the law, a candidate who has been ousted from a procedure of advertising and putting in competition of an agreement of occupation of the public domain is inadmissible to seize the judge of the pre-contractual summary before the signature of the contract, just as it is inadmissible to refer the matter to the judge of the contractual representative (EC 10 March 2006, Sté Unibail Management, Req.No 284802).
It is also inadmissible to challenge all the detachable acts of the procedure be it the decision to reject his application or his offer or the decision to sign the agreement through an appeal for abuse of power (EC 2 December 2015, Ecole Centrale de Lyon, Req. No. 386979)
Only two remedies remain:
Either an appeal against the validity of the agreement occupying the public domain to request the cancellation of the agreement and if necessary compensation for damages suffered. This deadline may be introduced without delay in the absence of publication of a notice of award indicating the date of signature of the contract (in case of indemnification claims, it must nevertheless be exercised within the four-year limitation period ( Four years).
This is a purely compensatory remedy intended solely to obtain compensation for damages suffered. This recourse can be exercised within the four-year prescription period (4 years).

Rule 3: The pitfalls of time limits and remedies indicated in rejection letters

The Conseil d'Etat considers that the erroneous indication of a remedy in a rejection letter does not affect the admissibility of the remedies.
Many rejection letters continue to mislead unsuccessful candidates that they can challenge the decision to reject their application or offer within two months. However, nothing is more false since as soon as the contract is signed, it is no longer possible to contest this decision (CAA Lyon 2 October 2014, Sté Voyages, req.n ° 13LY02077).
It is therefore necessary to remain very vigilant and to retain that from now on in contractual matters, only the appeal in contesting the validity of the contract is possible. However, there is the question of the time within which an unsuccessful candidate may lodge an appeal in the absence of publication of a notice of award.

Board of state
N ° 386979
Mentioned in the tables of Lebon collection
8th / 3rd SSR
Mrs Esther de Moustier, rapporteur
Ms Nathalie Escaut, public rapporteur
DELAMARRE; SCP TIFFREAU, MARLANGE, BURGADE, lawyer (s)
reading from Wednesday, December 2, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The Orange company has asked the judge of the Lyon administrative court to suspend, on the basis of Article L. 521-1 of the Code of Administrative Justice, the execution of the decision of 27 October 2014 by which the director of the the Ecole Centrale de Lyon has rejected his candidacy for the public call for the signature of an agreement of occupation of the public domain for the establishment of a mobile phone station, until that the legality of this decision be determined on the merits and to order, on the basis of Article L. 911-1 of the same Code, the Director of the Ecole Centrale de Lyon to discontinue the proceedings initiated, declare it without further action and not to sign the agreement with the beneficiaries. By order no. 1409455 of 23 December 2014, the judge of the Lyon administrative court suspended the execution of the decision of 27 October 2014 and dismissed the remainder of the claim.

By a summary appeal and a complementary memorandum, registered on 7 and 22 January 2015 at the litigation secretariat of the Conseil d'Etat, the Ecole Centrale de Lyon asks the Conseil d'Etat to:

1 °) to cancel this order;
2 °) ruling in summary, to reject the request of the company Orange;
3 °) to charge the company Orange the sum of 4 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:
- the European Convention for the Protection of Human Rights and Fundamental Freedoms;
- the postal and electronic communications code;
- the general code of ownership of public persons;
- the code of administrative justice;

After hearing in open session:
- the report of Mrs. Esther de Moustier, master of petitions,
- the conclusions of Mrs Nathalie Escaut, public rapporteur;
The word having been given, before and after the conclusions, to Me Delamarre, lawyer of the Central School of Lyon and the SCP Tiffreau, Marlange, of Burgade, lawyer of the Orange company;

1. Considering, on the one hand, that under the first paragraph of Article L. 521-1 code administrative justice: "When an administrative decision, even rejection, is the subject of a request for annulment (...), the judge hearing the application for interim measures, seized of an application to that effect, may order the suspension of the execution of that decision, or of certain of its effects, where the urgency justifies it and a means of creating, in the state of the investigation, a serious doubt as to the legality of the decision "; where the administrative act which is the subject of the dispute is not subject to appeal, that inadmissibility affects both the application for annulment of that act and the request for its suspension; In addition, when it appears from the documents in the file submitted to the judge of the interim relief, the inadmissibility of the appeal must be noted, if necessary ex officio, both by the judge of interim relief and possibly by the judge of cassation;

2. Considering, on the other hand, that under Article L. 46 of the Post and Electronic Communications Code: "The concessionary authorities or managers of the non-road public domain, when granting access to electronic communications networks, must do so in the form of a convention, under transparent and non-discriminatory conditions and to the extent that such occupation is not incompatible with its assignment or with the available capacities. (...) ";

3. Considering that any third party to an agreement of occupation of the public domain concluded on the basis of these provisions, likely to be prejudiced in his interests in a sufficiently direct and certain way by its execution or its clauses, is admissible to form, before the judge of the contract, an appeal of unlimited jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses which are divisible; that the legality of the choice of the contracting party can be challenged only in the event of such an action, exercised within a period of two months from the completion of the appropriate publicity measures, and which may possibly be accompanied by an application tending, on the basis of Article L. 521-1 of the Code of Administrative Justice, to the suspension of the performance of the contract;

4. Considering that it follows from the foregoing that, when a non-road public domain managing authority decides to grant access to this domain to operators of electronic communications networks, but chooses to limit the number of agreements concluded at the same time to For that purpose, the legality of that choice, as well as the choice of the contracting parties and the refusal at the same time against another operator of electronic communications networks, can only be challenged by the latter by an action of unlimited jurisdiction contesting the validity of the contract; the unsuccessful candidate is therefore not eligible to appeal for an abuse of authority against the decision of the public domain manager to refuse his application;

5. Considering that it appears from the documents in the file submitted to the judge of the interim administrative court of Lyon that the company Orange and the Ecole Centrale de Lyon concluded, on 24 November 1995, a convention of occupation of the public domain relating to the installation of a mobile telephone station on one of the school buildings, renewed with riders whose last expired on December 31, 2014; that, to ensure the renewal of this agreement from 1 January 2015, the director of the Ecole Centrale de Lyon opened, on July 7, 2014, a consultation procedure for the implementation, on the site of the school, one or two relay antennas, for a period of nine years; that it has, on October 27, 2014, rejected the offer presented by the Orange company within the framework of this procedure of public call to competition and signed two agreements of occupation with, respectively, the companies Bouygues Telecom and Free; that the Central School of Lyon appeals in cassation against the order of December 23, 2014 by which the judge of the summary of the administrative court of Lyon suspended the execution of the decision of October 27, 2014 rejecting the offer of the company Orange ;

6. Considering that it follows from what was said in point 4 that the request of the company Orange, which challenged only the decision of 27 October 2014 by which the director of the Ecole Centrale de Lyon had rejected his candidacy for the public call for competition for the signature of an agreement occupying the public domain on the basis of Article L. 46 of the Post and Electronic Communications Code, was inadmissible; In this respect, the fact that the letter by which this rejection was notified to that company incorrectly stated that that decision was capable of being challenged by way of the action for abuse of authority is irrelevant; that this fact, which does not have the effect of depriving the applicant company of any access to a judge, does not result in disproportionate interference with the right of access to a court guaranteed by Article 6 (1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms;

7. Considering that by not noting the inadmissibility of the application of the company Orange, the judge of the interim administrative court of Lyon committed an error of law; that, therefore, and without it being necessary to examine the grounds of appeal, the Ecole Centrale de Lyon is justified in asking for its annulment;

8. Considering that it is necessary, pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory procedure initiated by the Orange company and to reject as inadmissible its request for the suspension of the execution of the decision of 27 October 2014 by which the director of the Ecole Centrale de Lyon rejected his candidacy for the public call for the signature of a convention of occupation of the public domain with a view to setting up a mobile telephony station;

9. Whereas this Decision does not call for any measure of execution; that, therefore, the findings for purposes of injunction presented by the company Orange can only be rejected;

10. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude that a sum be placed as such at the expense of the Ecole Centrale de Lyon which is not, in this proceeding, the losing party; that in the circumstances of the present case it is not necessary to accede to the claims submitted by it under those provisions;

DECIDE:
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Article 1: The order of the judge of summary of the administrative court of Lyon of December 23, 2014 is canceled.
Article 2: The request of the company Orange before the judge of the summary of the administrative court of Lyon and its conclusions before the Council of State are rejected.
Article 3: The appeals of the Ecole Centrale de Lyon submitted under Article L. 761-1 of the Code of Administrative Justice are dismissed.
Article 4: This decision will be notified to the Ecole Centrale de Lyon and to the public limited company Orange.

Summary :

1) Any third party to an agreement of occupation of the public domain concluded on the basis of Article L. 46 of the Post and Electronic Communications Code (CPCE) (access of the operators of electronic communications networks to the non-road public domain) , likely to be prejudiced in his interests in a sufficiently direct and certain way by its execution or its clauses, is admissible to form, before the judge of the contract, an appeal of unlimited jurisdiction contesting the validity of the contract or some of its clauses non which are divisible.

(2) The legality of the choice of the contracting party may be contested only in the event of such an action, exercised within a period of two months from the completion of the appropriate publicity measures, and which may possibly be accompanied by an application tending, on the basis of Article L. 521-1 of the Code of Administrative Justice, to the suspension of the performance of the contract.

(3) It follows from the foregoing that, when a non-road public domain managing authority decides to grant access to this domain to operators of electronic communications networks, but chooses to limit the number of conventions simultaneously concluded for this purpose, the legality of this choice as well as that of the choice of co-contractors and that of the refusal simultaneously opposed to another operator of electronic communications networks can only be challenged by the latter by an appeal of unlimited jurisdiction contesting the validity of the contract. The unsuccessful candidate is therefore not eligible to appeal for ultra vires against the decision by which the manager of the public domain did not retain his application.