Le cocontractant de l'administration peut-il résilier son marché ?

Can the contracting party of the administration terminate its contract?

by gmorales on September 19th, 2016 | Category: Public markets
Le cocontractant de l'administration peut-il résilier son marché ? Le cocontractant de l'administration peut-il résilier son marché ?

Le cocontractant de l'administration peut-il résilier son marché ? CE, July 19, 2016, Sté Schaerer Mayfiel France No. 399178

In this case, the Council of State recalls the rare conditions under which the contracting party of the administration may be authorized to terminate his contract

Rule # 1: Principle: the holder of an administrative contract can not terminate it unilaterally

The Council of State recalls the principle according to which the holder of an administrative contract is obliged to ensure its execution and can not in particular avail himself of the deficiencies or failings of the administration to avoid his own contractual obligations or take the initiative to unilaterally terminate the contract. In this case, a company had unilaterally terminated its contract on the basis of the defection of a subcontractor caused by the late payment of the public corporation.

Rule 2: First exception: the contract may provide for the conditions of termination by the contracting party of the administration

The judge admits a first exception by allowing the parties to provide in the contract the conditions under which the co-contractor of the public company may terminate the contract in the event of the breach by the latter of its contractual obligations. However, this possibility is not open for contracts whose object is the actual execution of the public service.

Rule 3: Second exception: force majeure

The judge admits a second exception: even in the absence of a clause organizing the unilateral termination by the contracting party of the administration, the latter can still terminate the contract in case of force majeure, that is to say of an external event, unpredictable and irresistible. In this case, the defection of a subcontractor caused by the late payment of the public company was found not to be a case of force majeure.

Rule 4: Conditions Precedent to Termination by the Contracting Party of the Administration

Before any unilateral termination, the contracting party of the administration must put the latter in a position to oppose the termination of contractual relations for reasons of general interest, drawn in particular from the requirements of the public service.

Rule n ° 5: The impossibility to cancel unilaterally in case of general interest reason

If the administration objects to the termination for a reason of general interest, the other party must continue the performance of the contract. A breach of this obligation is likely to result in the termination of the contract to its exclusive wrongs. The only possibility open to the contracting party is then to challenge before the court the general interest motive against him.

Rule n ° 6: The judge can oblige the contracting partner of the administration to resume the execution of the contract

Where the administration does not have the means to compel the contracting party who has unilaterally terminated the contract in breach of those rules, the judge may order him to continue the performance of the contract, under penalty payment, provided that the measure is useful, justified by the urgency, does not hinder the execution of any administrative decision and does not face any serious challenge. In this case, despite the application of penalties, the hospital center was unable to obtain from its contractor the resumption of the performance of the contract for the maintenance of medical equipment. The judge ordered the contract holder to resume the performance of the services necessary for the continuity and safe operation of the public hospital service, under penalty of € 2,000 per day of delay.

Board of state

N ° 399178
ECLI: FR: CECHS: 2016: 399178.20160719
Unpublished at Lebon collection
7th chamber judging alone
Mrs Marie-Anne Lévêque, rapporteur
Mr Olivier Henrard, public rapporteur
SCP BARADUC, DUHAMEL, RAMEIX; SCP NICOLAY, LANOUVELLE, HANNOTIN, lawyers
Reading of Tuesday, July 19th, 2016
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The hospital Andrée Rosemon asked the judge of the courts of the administrative court of Guyana, on the basis of Article L. 521-3 code administrative justice, to require the company Schaerer Mayfield France to perform its obligations preventive maintenance contracts on all the equipment subject to the contract and its curative maintenance obligations, notably by restoring the functioning of the autoclave that has failed since 6 January 2016, under penalty of € 10,000 per day of delay from notification of the order.

By an order No. 1600173 of April 11, 2016, the judge of the summary of the administrative court of Guyana enjoined the company to fully resume the performance of services to which it is obliged by the contract of 6 February 2015 preventive and curative maintenance of three autoclaves, a scrubber and supervision units of the mark, passed with Andrée Rosemon hospital and sentenced her to pay a penalty of 2,000 euros per day late as from the day after the notification of her order.

By an appeal and a reply, registered on April 27th and June 14th, 2016 at the litigation secretariat of the Conseil d'Etat, the company Schaerer Mayfield France asks the Conseil d'Etat:

  1. cancel this order;
  2. acting in summary proceedings, to reject the request of Andrée Rosemon Hospital Center;
  3. to charge the hospital Andrée Rosemon the sum of 4,000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

  • the code of public contracts;
  • the code of administrative justice;

After hearing in open session:

  • the report of Marie-Anne Lévêque, State Councilor,
  • the conclusions of Olivier Henrard, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Baraduc, Duhamel, Rameix, lawyer of the company Schaerer Mayfield France and to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the Andrée Rosemon hospital center;

1. Considering that it appears from the documents in the file submitted to the judge of the summary of the administrative court of Guyana that it has, at the request of the hospital Andrée Rosemon and on the basis of the provisions of Article L. 521- 3 of the Code of Administrative Justice, orders Schaerer Mayfield France, under penalty of 2 000 euros per day of delay, to carry out its obligations of preventive and curative maintenance on all the equipment object of the contract concluded with this establishment the February 6, 2015; that the company Schaerer Mayfield France appeals in cassation against this order;

2. Considering that under Article L. 5 of the Code of Administrative Justice: "The investigation of the cases is contradictory.The requirements of the contradiction are adapted to those of urgency", that according to the Article L. 522-1 of the same code: "The judge of the summary proceedings decides at the end of a contradictory procedure written or oral", that according to the article R. 522-4 of the same code: "Notification of the the defendants are asked to do so. / The briefest time is given to the parties to provide their observations (...) ";

3. Considering that it appears from the documents in the file submitted to the judge of interim relief, including a fax slip by the registry of the administrative court, that it notified the company Schaerer Mayfield April 4, 2016 France the request submitted by the Andrée Rosemon hospital, by giving him ten days to submit his observations in defense; that the judge hearing the application for interim measures delivered the contested order on 11 April 2016, before the expiry of that period; that the company, which had not made observations at that date, is justified to argue that, under these conditions, the procedure followed before the judge of the interim relief is tainted irregularity; that it follows from there, without it being necessary to examine the other grounds of the appeal, that the order under appeal must be annulled;

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

5. Considering that under the provisions of Article L. 521-3 of the Code of Administrative Justice: "In case of urgency and on simple request that will be admissible even in the absence of prior administrative decision, the judge of referred may order any other necessary measures without hindering the execution of any administrative decision ";

6. Considering that, if it does not belong to the administrative judge to intervene in the management of a public service by issuing injunctions to those who have contracted with the administration, when it has with regard to the latter have the necessary powers to ensure the execution of the contract, the situation is different when the administration can only use coercion against its co-contracting party by virtue of a court decision; that in such a case, the judge of the contract is entitled to pronounce, against the contracting party of the administration, a condemnation, possibly under penalty, to an obligation to make; that in case of urgency, the judge hearing the application for interim measures may, in the same way, on the basis of the aforementioned provisions of Article L. 521-3 of the Code of Administrative Justice, order, possibly under penalty, to the contracting party, within the framework the obligations provided for in the contract, to provisionally take any measure necessary to ensure the continuity of the public service or its proper functioning, provided that such measure is useful, justified by the urgency, does not hinder the execution of any administrative decision and does not face any serious dispute;

7. Considering, in the first place, that under the terms of the contract concluded on February 6, 2015 with Schaerer Mayfield France, and tacitly renewed for a period of one year on February 5, 2016, the Andrée Rosemon hospital entrusted to that the preventive and curative maintenance of sterilization equipment consisting of three autoclaves, a scrubber and supervision units; that the unilateral termination of this contract pronounced by the company Schaerer Mayfield France on March 9, 2016, with retroactive effect from January 1, 2016, deprives the hospital establishment of the means indispensable to the exercise of its mission of public service and exposes since several months the users of the service at an immediate risk, one of the sterilizers, subject of the maintenance contract, thus having been repaired since January 6, 2016; that, consequently, the existence of an emergency situation within the meaning of Article L. 521-3 code administrative justice is established;

8. Considering, secondly, that the contracting party bound to a public person by an administrative contract is bound to ensure its execution, except in the case of force majeure, and may not, in particular, rely on the deficiencies or deficiencies of the administration to evade its own contractual obligations or take the initiative to unilaterally terminate the contract; that it is, however, permissible for the parties to provide in a contract which is not for the purpose of performing the public service itself the conditions under which the contracting party of the public company may terminate the contract in the event of its failure to fulfill its obligations contractual that, however, the contracting party can not proceed to the termination without having put, beforehand, the public person to oppose the rupture of the contractual relations for a reason of general interest, drawn in particular from the requirements of the public service; that where a reason of general interest is opposed to him, the contracting party must continue the execution of the contract; that a failure on his part to this obligation is likely to result in the termination of the contract to his exclusive wrongs; that it is however open to the contracting party to contest before the judge the reason of public interest which is opposed to him in order to obtain the cancellation of the contract;

9. Considering, on the one hand, that, contrary to what Schaerer Mayfield France argues, no stipulation of the contract of 6 February 2015 allows it to pronounce unilateral termination, regardless of the deficiencies of the center hospital Andrée Rosemon to her own contractual obligations; that this company can not, in any case, not usefully avail itself of the clauses of the unsigned documents which it produced providing for the suspension of the execution of the contract in case of ignorance by the public person of its contractual obligations since that these can not be regarded as part of the contract documents of the contract in dispute;

10. Considering, on the other hand, that the company Schaerer Mayfield France argues that it is no longer able to ensure the financial and material execution of the contract due to the defection of his subcontractor in the Caribbean which would have been caused by the late payment of the hospital center, this circumstance, which, moreover, is not established, does not constitute a situation of force majeure;

11. Considering, lastly, that it is undisputed that the Andrée Rosemon Hospital Center, despite the penalties it inflicted on it, was unable to obtain from Schaerer Mayfield France the resumption of the performance of its contractual obligations and that he has no other means of restraint against him;

12. Considering that it follows from this that the requested measure, which is necessary for the continuity and safe operation of the public hospital service, does not come up against any serious dispute and is of an urgent and useful nature; whereas it is therefore necessary to order Schaerer Mayfield France to resume full performance of the services to which it is obligated by the contract; whereas, in the particular circumstances of the case, this order should be subject to a penalty payment of EUR 2,000 per day of delay, if Schaerer Mayfield France does not justify the execution of this decision within eight days of the notification of this Decision;

13. Considering that it is appropriate, in the circumstances of the case, to charge the company Schaerer Mayfield France the sum of 4,500 euros to be paid to the hospital Andrée Rosemon, for the entire procedure , under the provisions of Article L. 761-1 of the Administrative Justice Code; whereas these provisions prevent an amount from being charged to the hospital center which is not, in the present case, the losing party;

DECIDE:
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Article 1: The order of the judge of summary of the administrative court of Guyana of April 11, 2016 is canceled.
Article 2: Schaerer Mayfield France is ordered to resume full performance of the services to which it is required by the preventive and curative maintenance contract of three autoclaves, a washer and supervision units of the brand, concluded on February 6 2015 with the hospital Andrée Rosemon, within eight days from the notification of this decision.
Article 3: If Schaerer Mayfield France fails to provide evidence that Article 2 has been complied with within the prescribed period, he shall be liable to a fine of EUR 2,000 per day until the date on which this Decision has been executed. .
Article 4: Schaerer Mayfield France will inform the Disputes Secretariat of the Conseil d'Etat of the measures taken to ensure the implementation of Article 2 of this decision.
Article 5: The company Schaerer Mayfield France will pay the hospital Andrée Rosemon the sum of 4 500 euros under the provisions of Article L. 761-1 code administrative justice.
Article 6: The remainder of the appeal appeal of Schaerer Mayfield France is dismissed.
Article 7: This decision will be notified to Schaerer Mayfield France and Andrée Rosemon Hospital.
Copy for information will be forwarded to the regional health agency of Guyana.