Public contracts for legal services: Article 15 of Decree No 2016-360 of 25 March 2016 can not derogate from the law
Article 15 of Decree No. 2016-360 of 25 March 2016 on public procurement authorizes a derogation from the written form of public contracts which may be considered contrary to the provisions of Article 10 of Law No. 71-130 of December 31, 1971 governing the legal profession. The purpose of this note is to examine the legality of this regulatory value provision which can not propose an alternative formally prohibited by law.
1- As a preliminary, a brief reminder of the regulatory provisions relating to public procurement of legal services is necessary
(i) Public contracts for legal representation services of article 29 of the decree of March 25, 2016
The legal services of legal representation of a client by a lawyer as well as the legal advice services provided by a lawyer in connection with a litigation procedure are not subject to the rules of the decree with the exception of those contained in articles 2, 4 , 5, 12, 20 to 23, 30, 48 to 55, 60, 107, 108 and Title IV of Part I. It is therefore a matter of public contracts but exempted from a number of rules. These two types of legal services must nevertheless be advertised and advertised, the terms of which are freely defined by the public purchaser according to the amount and characteristics of the public contract.
(ii) The other public contracts of legal services of article 28 of the decree of March 25, 2016
The other legal services can be passed according to a procedure adapted whatever their amounts in the conditions envisaged by article 27 of the decree. These are also public contracts which must also be advertised at the European level if the estimated value of the needs is equal to or greater than € 750,000 excluding VAT under the conditions set out in article 35 of the decree. .
(iii) The absence of mandatory writing for legal services contracts below € 25,000 excluding taxes
Article 15 of the Decree of 25 March 2016 states that public contracts responding to a need whose estimated value is equal to or greater than € 25,000 excluding taxes are concluded in writing. The regulatory principle is therefore that all public contracts with an amount equal to or greater than this amount must be in a written form. On the other hand, when the € 25,000 threshold is not reached, Article 15 of the decree authorizes a derogation from the written form of public contracts.
The legal services contracts of sections 28 and 29 are subject to the provisions of 30.8 of the Order, which refers to the threshold of section 15 of the Order. Article 15 of the Decree applies to all legal services markets, regardless of their specificities.
A public purchaser and an economic operator, including a legal professional, may therefore find themselves bound by unwritten agreements which may arise in various ways: bills of evidence or invoices sent after completion of the service, factual circumstances revealing a mutual agreement not formally expressed, such as the continuation of a contract after its expiry, etc. ... .or purely verbal agreements as the Conseil d'Etat has been able to admit on several occasions (see for example CE 28 February 1958 , Minister of Industry and Commerce v. City of Paris, rec.p.945 concerning the construction of a stadium or EC 14 June 1967, Chapuis, rec.p.850 concerning the execution of 'a work operation).
That being the case, it is interesting in the context of this analysis to recall that the Conseil d'Etat has always laid down the principle that these verbal agreements can bind the parties only insofar as they have not intervened in fields where the written form is imposed (see, for example, 1 October 1969, the law of private institutions, rec.p.411, also the conclusions of the Public Rapporteur Emmanuel Glaser under CE 28 December 2009, Commune de Béziers, application No. 304802).
That is why it would have been useful if, for the sake of clarity and legal certainty, the wording of section 15 of the Decree should be accompanied by the words "unless otherwise provided by law" or "subject to legislative provision". particular "or" without prejudice to any particular legislative provision ".
There is nothing like this, which makes it possible to question the regularity of this provision of a regulatory nature that can not provide for a derogation or an alternative prohibited by law, except to create a situation of "vertical" conflict between norms of value. different that would impact not only the regulatory provision in question but also the validity of the convention concluded in breach of the law ...... However, this seems to be the case for legal services.
2- The obligation to conclude a "written" agreement for all legal services regardless of their amount
(i) Article 10 of Law No. 71-1130 of 31 December 1971 imposes a written form for all legal services regardless of the amount
The law n ° 2015-990 of August 6, 2015 for the growth, the activity and the equality of the economic opportunities known as "Macron", examined and validated by the Constitutional Council (Decision n ° 2015-715 DC of August 5, 2015) , which came into force on August 8, 2015, contains provisions that directly concern the legal profession.
Thus article 51 of the law modifies article 10 of the law n ° 71-1130 of December 31, 1971 relating to the fees imposes the obligation for the lawyers to conclude a convention of honorary "written" with their clients. The new article 10 al.1 of the law of 31 December 1971 states that: "the fees for postulation, consultation, assistance, advice, drafting of private legal documents and pleadings are set in agreement with the customer. [...] Except in case of urgency or force majeure or when it intervenes under the legal aid total or the third part of the law n ° 91-647 of July 10, 1991 relating to the legal aid, the solicitor enters into a written fee agreement with his client, which specifies, among other things, the amount or method of determining the fees covering the foreseeable actions, as well as the various costs and disbursements contemplated ".
(ii) An obligation which has legislative value and which limits the possible derogations
Since 8 August 2015, pursuant to Article 10 of Law No. 71-1130 of 31 December 1971, a fee agreement must be concluded "in writing" between the lawyer and his client. This obligation concerns all areas of the lawyer's intervention and the provision of legal services (postulation, consultation, assistance, advice, drafting of private legal documents and pleadings).
This obligation can only be waived in exceptional circumstances: in the event of an emergency, force majeure or when the advocate intervenes as part of the total legal aid or assistance to the intervention of the lawyer in non-jurisdictional proceedings.
Article 10 of the 1971 Act therefore imposes a general obligation: that of an agreement in written form without distinction according to the public or private nature of the customers and three possible derogations enumerated by the law itself: urgency, force majeure and legal aid.
(iii) An obligation that is subject to the scrutiny of DGCCRF officers
It should be noted that the agents of the Directorate-General for Competition, Consumer Affairs and Fraud Control (DGCCRF) are authorized to investigate and record breaches under Article 10 of the Act of 31 December 1971, that is, breaches of the lawyer's obligation to enter into a fee agreement with his client in writing. This control concerns only the existence of the material existence of the agreement.
Searches and findings are carried out under the conditions set by Articles L. 450-1, L. 450-3, L. 450-3-1, L. 450-3-2, L. 450-7 and L. 450-8 of the Commercial Code. These provisions make it possible, in particular, for DGCCRF officers to access premises used for business purposes by a lawyer or to require the latter to communicate his books, invoices and other professional documents and to obtain or take copies of these documents. .
3- Article 15 of the decree of 25 March 2016 can not derogate from the provisions of article 10 of the law of 31 December 1971
(i) An unlawful departure from a regulatory standard to a legislative standard
At the end of the analysis, it appears that the wording of Article 15 of Decree No 2016-360 of 25 March 2016 on public procurement is absolutely unsatisfactory both from the point of view of legal certainty 'in the light of the principle of legality. In terms of legal certainty, how can one accept that a text of a regulatory nature may place a lawyer in an irregular situation with regard to the rules governing his profession? More generally, with regard to the principle of legality, can we accept that a provision of regulatory value authorizes an alternative that is prohibited by law?
Obviously, Article 15 of Decree No. 2016-360 of 25 March 2016 offers an alternative to the written form of public procurement that appears to be contrary to the provisions of Article 10 of Law No. 71-130 of 31 December 1971 governing the profession of lawyer.
And we can all the more wonder about the legality of this derogation that, in principle, a text of regulatory value can never derogate, explicitly or implicitly, from a text of legislative value. However, this is indeed the case of Article 15 of the Decree of 25 March 2016 concerning the procedures for awarding public contracts for legal services.
(ii) A partial or total repeal of the disputed regulations
It would therefore be entirely possible to request the repeal of this regulatory provision in accordance with the case law of the Conseil d'Etat which considers that the competent authority, seized of such an application for repeal of a regulatory provision, is obligation to refer to it, whether that provision was unlawful as from the date of its signature, or that the unlawfulness arises from circumstances of law or fact subsequent to that date (EC 3 February 1989, Compagnie Alitalia, no. 74052).
Conclusion: In any case, according to the law, the written word is de rigueur for legal services contracts including for those whose estimated value is less than 25.000 € HT.