The contractor can not be ordered to repair the workmanship himself
CE 25 January 2016, French Polynesia, req.no 384414
In this case, the Council of State recalls that a prime contractor can not be ordered to repair itself the defects found under the ten-year guarantee.
It follows that in the context of a dispute, if the judge is seized of conclusions tending to enjoin the prime contractor to repair the malfunctions found and that its responsibility is retained, in whole or in part, it belongs to him, even in the absence of express findings aimed at that end, to order the supervisor to pay compensation in the amount of the cost of the work.
Interesting solution in that it imposes not a compensation in kind by a pecuniary compensation which implies that the judge can have an expert report that estimates the cost of repairs. Failing that, the judgment seems to imply that the judge is required to prescribe a forensic report to determine the amount of compensation unless the documents in the file allow him to determine that amount.
Board of state
N ° 384414
7th / 2nd SSR
Mr Grégory Rzepski, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP WAQUET, FARGE, HAZAN; BLONDEL; SCP PIWNICA, MOLINIE, lawyer (s)
Reading of Monday, January 25, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
By a decision of 6 May 2015, the Conseil d'Etat, adjudicating the dispute, pronounced the admission of the conclusions of the appeal of French Polynesia directed against the judgment n ° 12PA02534 of the Administrative Court of Appeal of Paris of 10 June 2014 only in that judgment has ruled on the assessment of the amount of damage it has suffered due to disorders affecting the outfall sewer at sea in the tourist area of Haapiti, Moorea.
In support of these claims, French Polynesia submits that the Paris Administrative Court of Appeal erred in law in dismissing as inadmissible its request for conviction of Speed and Boyer to pay him the sum of 300 000 000 F CFP;
By a defense filed on 22 July 2015, Speed rejected the appeal and, by way of cross-appeal and provoked appeals, asked the Conseil d'Etat:
- to annul the judgment of 10 June 2014 of the Administrative Court of Appeal of Paris in so far as it condemns it to pay to French Polynesia the sum of 5 539 126 CFP francs;
- settling the case on the merits, dismissing the appeal of French Polynesia;
- to charge the French Polynesia and Boyer the sum of 4,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
Considering the code of administrative justice;
After hearing in open session:
- the report of Mr. Grégory Rzepski, Master of Applications in Extraordinary Service,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to Mr. Blondel, lawyer of French Polynesia, to the SCP Waquet, Farge, Hazan, lawyer of the company Bureau of Studies Speed and to SCP Piwnica, Molinié, lawyer of Boyer society;
1. Considering that it appears from the documents in the file submitted to the judges of the merits that French Polynesia entered into a contract of project management on March 11, 1999 with the company Speed relating to the collective sanitation of wastewater from the tourist zone de Haapiti and, on 19 February 2004, a works contract with Boyer for the construction of a treated water discharge emitter; that in 2009, disorders in the maritime part of the emissary were reported; that, by a judgment of February 9, 2012, the Administrative Court of French Polynesia held that the ten-year liability of the two companies was engaged but that the owner had committed errors justifying that only half of the damage suffered be put the joint and several charge of the two companies; that, by the judgment appealed June 10, 2014, the Administrative Court of Appeal has annulled the judgment of February 9, 2012, held that the share of responsibility of the companies Speed and Boyer had to be fixed at a third each and set the total amount compensation at 16,617,378 F CFP inclusive; that, by a decision of May 6, 2015, the Council of State, ruling in litigation, pronounced the admission of the conclusions of the appeal of the French Polynesia directed against the judgment of June 10, 2014 as only he ruled the assessment of the amount of the damage;
On the main appeal:
2. Considering that the responsibility of the contractors because of the defects in the works can not find its sanction, on the basis of the principles governing the decennial liability of manufacturers, in the obligation to carry out repairs themselves; that, consequently, in the case where the judge, seized of conclusions aimed at the condemnation of the supervisors and the contractors with such an obligation, retains the imputability, in totality or in part, to the masters of work of the disorders it is incumbent upon it, even in the absence of express findings to this end, to order the contractors to pay compensation in the limit of the cost of the works;
3. Considering that it appears from the documents in the file submitted to the judges of the merits that the French Polynesia asked, in the first instance and in its first writings on appeal, the conviction of the company Speed and the company Boyer to a repair in kind by replacement of the structure; that the court, which had an expert report from the Insular Research Center and observatory of the environment (Créocéan) estimating the cost of replacing the structure at 300 000 000 CFP francs, could not, however, without error of right to hold that the claims of French Polynesia that the builders should be ordered jointly and severally to pay him a sum of 300,000,000 CFP francs were inadmissible on the ground that they had thus been quantified only in an appeal ; whereas, consequently, his judgment must be annulled in so far as he rules on the amount of the loss suffered by French Polynesia;
On the cross-appeals:
4. Considering that the findings, registered after the expiry of the period of appeal in cassation, by which the company Speed and the company Boyer request that the judgment be annulled insofar as it fixed the share of responsibility of the French Polynesia only to a third must be regarded as incidental conclusions; that they are admissible if they do not raise a dispute separate from the litigation relating to the amount of the damage related to the same disorders, to which was limited the admission of the appeal of the French Polynesia by the decision of May 6, 2015 of the Council State, ruling on litigation;
5. Considering, in the first place, that the Paris Administrative Court of Appeal, which was not obliged to answer each argument of the request of the company Speed, pronounced on all the means raised and sufficiently motivated his judgment;
6. Considering, secondly, that, in order to find that there was reason to withhold part of the responsibility of the owner of the work corresponding to a third party, the Paris Administrative Court of Appeal has fully appreciated the facts which it were submitted without altering them;
7. Considering, finally, that in considering that French Polynesia could not be regarded as having imposed on the Boyer society the method of fixing the emissary in its maritime part, the court turned on the facts of the case a sovereign appreciation free of denaturation; Nor did it tarnish his denaturing judgment by holding that the same company had merely placed support crutches not anchored in the ground;
8. Considering that it follows from the foregoing that the incidental appeals of the company Speed and the company Boyer must be rejected;
On the appeals brought:
9. Considering that the pleadings, registered after the expiry of the period of the appeal in cassation, by which the company Speed and the company Boyer request that the judgment under appeal be annulled as it allocates them a part of responsibility which should have to be, according to each of them, to the other society must be regarded as provoked appeals directed by each of the two societies against the other; On the one hand, they do not raise a dispute distinct from that to which was limited the admission of the appeal of the French Polynesia by the decision of May 6, 2015 of the Council of State, ruling litigation; On the other hand, the present decision, which upholds the conclusions of French Polynesia, is liable to aggravate the situation of the two companies. whereas, as a result, the findings of these companies are admissible;
10. Considering that, to judge that it was appropriate to set the share of responsibility of the company Boyer to a third party and that of the company Speed to a third also, the Administrative Court of Appeal of Paris has supremely appreciated the facts which were submitted to him without distorting them;
11. Considering that it follows from the above that the appeals brought by Speed and Boyer must be dismissed;
The conclusions submitted under the provisions of Article L. 761-1 of the Administrative Justice Code:
12. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude an amount to be put in this respect at the expense of French Polynesia which is not, in the present case the losing party; that in the circumstances of the case it is not necessary to accede to the conclusions of French Polynesia presented on the basis of the same article;
Article 1: The judgment of the Paris Administrative Court of Appeal of 10 June 2014 is set aside in so far as it rules on the assessment of the amount of the damage.
Article 2: The case is referred, within the limits of the cassation thus pronounced, to the Paris Administrative Court of Appeal.
Article 3: The incidental and provoked appeals of the company Speed and the company Boyer are rejected.
Article 4: the conclusions submitted by French Polynesia under the provisions of Article L. 761-1 of the Administrative Justice Code are rejected.
Article 5: This decision will be notified to French Polynesia, Speed and Boyer.