The owner can look for the responsibility of all the builders!
CE 7 December 2015, Commune of Bihorel req.nr 380419
In a judgment of 7 December 2015, Commune de Bihorel req.no. 380419, the Council of State lays down a new rule according to which the principal can henceforth seek the responsibility of the builders of an operation with whom he does not has no contractual relationship such as a subcontractor.
Rule # 1: the owner can naturally seek the responsibility of the participants in a construction operation with whom he has concluded a contract
It is the responsibility of the client who intends to obtain compensation for the damaging consequences of a defect attributable to the design or execution of a work to direct his action against the manufacturer (s) with whom he has concluded a rental contract in other words all participants with whom it is bound by contract (prime contractor, companies responsible for carrying out the work, technical controllers, etc. ...).
Rule 2: the client may also seek the responsibility of the participants in a construction operation with whom he is not bound by any contract
In the event that the responsibility of the contracting party or partners can not be usefully sought, the Council of State considers that the owner can now implicate, in the quasi-delictual field, the responsibility of the participants in an operation. of construction with which it has not concluded a contract, but which intervened on the basis of a contract concluded with one of the constructors .... the classic case is that of the subcontractors with a construction operation.
In this case it is possible for him to seek liability on the basis of a possible breach of the rules of art or laws and regulations but in no case on the basis of any mistakes resulting from the sole non-performance of his own obligations in other words, never on a contractual basis.
In other words, the contracting authority can not confine itself to invoking the breach of contractual obligations resulting from a contract concluded between a company and its subcontractor since it is foreign to this contract.
Rule n ° 3: the administrative judge is obliged to verify if the conditions of engagement of the decennial responsibility of the manufacturers are well fulfilled
It is incumbent on the administrative judge, when the decennial responsibility of the manufacturers is sought before him, to assess, in the light of the arguments put to him by the parties on this point, whether or not the conditions for the engagement of this responsibility are met. and to draw the consequences, if any ex officio, for all manufacturers.
Board of state
7th / 2nd SSR
Mr Frédéric Dieu, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP CELICE, BLANCPAIN, SOLTNER, TEXIDOR; SCP GASCHIGNARD; SCP ODENT, CHICKEN; SCP BOULLOCHE, lawyer (s)
Reading of Monday, December 7, 2015
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The inter-communal union Bihorel Bois-Guillaume, whose rights came from the commune of Bois-Guillaume-Bihorel, then the commune of Bihorel, asked the administrative court of Rouen to condemn MA..B ..., the company Lanos Isolation and the company Lassarat to pay him a sum of 154 173.38 euros for the repair of disorders affecting the pool "Transat".
By a judgment n ° 0903156 of November 20th, 2012, the administrative court of Rouen first sentenced MB..and the company Lanos Isolation, on the basis of the decennial guarantee of the manufacturers, to the payment to the commune of the the sum of 154 170.38 euros including taxes and interest and their capitalization, secondly, charged to them the costs of expertise, third, sentenced the company Lanos Isolation and Lassarat company to guarantee MB. at the level of 70 % and 10 %, respectively, the sums charged to him, in the fourth place, dismissing the remainder of the claims of the municipality against the Lassarat company and the other claims for warranty.
In a judgment n ° 13DA00099 of March 4, 2014, the administrative court of appeal of Douai has, at the request of the company Lanos Isolation and the conclusions of call provoked by MB .. and the company Lassarat, unloaded these manufacturers of all convictions and charged to the commune the expenses of expertise.
By a summary appeal and a supplementary memorandum, registered on 19 May and 11 August 2014 at the litigation secretariat of the Conseil d'Etat, the municipality of Bihorel, which came to the rights of the municipality of Bois Guillaume-Bihorel, asked the State Council:
- to annul that judgment;
- to charge MB ... and companies Lanos Isolation and Lassarat the payment of a sum of 4 500 euros pursuant to the provisions of Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the civil code;
- the code of public contracts;
- the code of administrative justice;
After hearing in open session:
- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Gaschignard, lawyer of the commune of Bihorel, to the SCP Odent, Poulet, lawyer of the company Lanos Isolation, to SCP Boulloche, lawyer of MB..and to Céline SCP, Blancpain, Soltner, Texidor, lawyer for Lassarat and Air C2;
1. Considering that it appears from the documents in the file submitted to the trial judges that the inter-communal union Bihorel Bois-Guillaume, whose rights came from the municipality of Bois-Guillaume-Bihorel and then the municipality of Bihorel, has, within the framework of repairs of the insulation of the slide cover of the swimming pool "Transat", entrusted a project management mission to MB..and the lot of works n ° 3, "interior joinery", to the company Lanos Isolation , which subcontracted to the Lassarat company the realization of a vapor barrier on the panels of dressing of the access hopper to the toboggan; that this work was received without reservation on November 27, 2007; that disorders appeared on the wall of the access hopper in February 2008, leading the client to seek the responsibility of the participants in the operation; that in a judgment of March 4, 2014, the Administrative Court of Appeal of Douai annulled the joint and several sentence of MB..and the company Lanos Isolation to repair the damages suffered by the municipality on the basis of the decennial guarantee, pronounced by judgment of the Rouen Administrative Court of 20 November 2012, upheld the dismissal of the claims against Lassarat on the basis of quasi-tortious liability and dismissed the various pleadings as irrelevant; that the municipality of Bihorel appeals in cassation against this judgment;
The judgment under appeal, in so far as it rules on the responsibility of the main contractor and the Lanos Isolation company under the ten-year guarantee:
2. Considering, in the first place, that in considering that the disorders, which were of a punctual nature, did not compromise the strength of the work or make it unsuitable for its purpose, the court, which gave sufficient reasons for its decision on this point has given rise to a sovereign appreciation of the facts of the case, which is not tainted by denaturing; that it did not err in law in the handling of the criteria which is subordinated the commitment of the decennial responsibility of the manufacturers;
3. Considering, secondly, that it is incumbent on the administrative court, when it is sought before it the ten-year responsibility of the manufacturers, to assess, in the light of the arguments put to it by the parties on this point, whether the conditions commitment of this responsibility is or are not met and draw the consequences, if any ex officio, for all manufacturers; that as it has been said, the administrative court sentenced MB and the company Lanos Isolation jointly and severally on the ground of the ten-year guarantee; that, since it allowed the means invoked by the company Lanos Isolation taken from the fact that the disorders did not have the degree of gravity sufficient to be covered by the decennial guarantee, the court did not make an error of right in accepting the appeal findings brought about by Mr B., even though he did not dispute the applicability in the present case of that liability regime, but merely argued that his own liability could not be incurred by him. chief ;
The judgment under appeal as a judgment on the liability of Lassarat:
4. Considering that it is, in principle, for the developer who intends to obtain compensation for the damaging consequences of a defect attributable to the design or execution of a work to direct his action against the constructor (s) with whom he has entered into a contract of hire; however, in the event that the liability of the co-contractor (s) can not be usefully sought, it is open to him to question, in the quasi-delictual field, the responsibility of the participants in a construction operation with whom he is not have not entered into a contract of hire, but which have intervened on the basis of a contract concluded with one of the builders; that if it can, in this respect, invoke, in particular, the violation of the rules of the art or the ignorance of legislative and statutory provisions, it can not, however, to claim faults resulting from the only non-execution, by the persons interested parties, of their own contractual obligations; that furthermore, even though it intends to place itself on the quasi-delictual ground, the contracting authority can not seek the responsibility of participants in the construction operation for disorders arising after the reception of the work and which are not such as to compromise the strength of the work or render it unsuitable for its purpose; it follows from the foregoing that in judging that the municipality of Bihorel was unfounded to seek the conviction, on the basis of liability quasi-delict, society Lassarat, subcontractor society Lanos Isolation without any contractual relationship with the owner, since the municipality merely invoked the breach of the contract concluded between the subcontractor and the contractor, the Douai Administrative Court of Appeal did not commit any error of law;
On the appeal findings presented under the guarantee of perfect completion:
5. Considering that the municipality of Bihorel requested, in the first instance and on appeal, the conviction of MB ... and the Lanos Isolation and Lassarat companies on the basis of both the ten-year guarantee and the guarantee of perfect completion; that the court did not pronounce on the conclusions tending to the implementation of the guarantee of perfect completion; that, consequently, without it being necessary to examine the other grounds raised by the appeal on this point, its judgment must be annulled insofar as it failed to rule on these conclusions;
6. Considering that, in the circumstances of the case, it is not appropriate to grant the submissions of the parties presented on the basis of the provisions of Article L. 761-1 code administrative justice;
Article 1: The judgment of the administrative court of appeal of Douai of March 4, 2014 is canceled insofar as it failed to rule on the conclusions presented by the municipality of Bihorel under the guarantee of perfect completion.
Article 2: The case is referred to the Administrative Court of Appeal of Douai to this extent.
Article 3: The submissions of the parties presented on the basis of the provisions of Article L. 761-1 of the Code of Administrative Justice are rejected.
Article 4: This decision will be notified to the municipality of Bihorel, MA..B ..., the company Lanos Isolation, the company Lassarat, the company Dekra Industrial and Mutuelle des architectes français.
Copy for information will be issued to the company Air C2, the company Avenel and the company Sanibat 76.
For the absence of character of public order of the question of if the disorders enter the field of application of the ten-year guarantee, CE, 8 February 1997, Commune of Nancy, n ° 160996, T. pp. 942-1024. ,, [RJ2] Ab. jur. CE, June 30, 2009, Municipality of Voreppe, n ° 163435, p. 225. Rappr. Cass. Ass. Plen., 12 July 1991, No. 90-13.602, Bull. Ass. Plen. No. 5; Cass. Ass. Pl., 9 October 2006, Nos. 06-11.307, 06-11.056, Bull. Ass. Plen. n ° 11.