When the count has become final, the subcontractor can no longer act against the client
When the count has become final, the subcontractor can no longer act against the client
Ruling on the compensation claim of a subcontractor against the client, the Administrative Court of Appeal of Nancy recalls the conditions of the direct payment and retains that the intangible and definitive counting is opposable to the subcontractor, whose the action with regard to the contracting authority becomes inadmissible.
Rule n ° 1: The lack of precision on the payment terms of the subcontractor hinders the direct payment
The Court first recalls that the direct payment of the subcontractor by the developer is subject to two conditions: the subcontractor must have been accepted by the contracting authority and that he has approved the terms of payment of the subcontract, in the form of an amendment to the original contract or a special act signed by both parties. In this case, one commune had an alloti works contract, of which lot n ° 1 "demolition" included an asbestos removal part. The holder of this lot used a subcontractor for the asbestos removal part. Although this subcontractor was indeed approved by the municipality, however, the annex to the commitment document relating to subcontracting did not include any details on the payment terms of the subcontracting contract. The Court concludes that the developer was not able to agree to the terms of payment submitted to him and that, consequently, the second condition relating to direct payment was not fulfilled. This solution is in line with the jurisprudence of the Conseil d'Etat (EC, 13 June 1986, No. 56350, OPDHLM of Pas-de-Calais c / St Francki, EC, 3 April 1991, No. 90552, Syndicat intercommunal sanitation of the Autrans-Meaudre plateau).
Rule n ° 2: The intangible and definitive nature of the count is opposable to the subcontractor
The subcontractor also alleged the fault of the municipality for not having asked the general contractor to regularize the situation. It should be remembered that the client who is aware of irregular subcontracting is liable if he does not take the appropriate measures (CE, 28 May 2001, n ° 205449, SA Bernard Travaux Polynesie). In the present case, the Court dismisses that claim by opposing the principle of the intangible and definitive character of the general count. It holds that the definitive nature of the general statement is opposable not only to the holder of the contract, but also to his subcontractor, irrespective of the existence of a claim in favor of the latter. It follows that the subcontractor's claim for damages on the basis of quasi-tortious liability is inadmissible. Thus, when the count has become final, the subcontractor no longer has any means of action against the developer. The only possibility left open to him is therefore to take action against the holder of the contract, on the basis of contractual liability.
Advice to subcontractors:
Before your intervention, be sure to check that the main company has told you to the client by specifying the terms of payment of your company. Thereafter, if your counterparty does not pay you, do not wait until the settlement has become final to ask the client direct payment of your debt.
CAA from NANCY
read on Thursday, June 30, 2016
IN THE NAME OF THE FRENCH PEOPLE
1. The municipality of Fegersheim has decided to award a public contract for the extension and restructuring of its sports and cultural center. By an act of commitment signed on March 19, 2007, the commune entrusted lot n ° 1 "demolition" (including a demolition chapter and an asbestos removal chapter) to Haar et fils. For the performance of the asbestos removal service, Haar et fils used a subcontractor, approved by the contracting authority, the Alsatian company for insulation and sustainable development (AC2D).
2. In May 2007, it was found that the upper part of the metal footings of the roof structure was covered with intumescent paint and that asbestos dust was embedded on the false ceilings. Room A of the sports and cultural center was then completely confined in order to proceed to a total asbestos removal of the structure. However, the parties did not agree on the financial terms of this intervention and the amount of additional work. On 2 November 2007, the municipality of Fegersheim decided to terminate the contract with Haar et fils.
3. By a preliminary complaint dated April 15, 2011, the Alsatian LLC of Heat Insulation and Sustainable Development (AC2D) asked the municipality to pay him a sum of 100 603,70 euros TTC based on his right to payment direct. She then asked the Administrative Court of Strasbourg to annul the decision of May 19, 2011 by which the mayor of the municipality of Fegersheim rejected his request and condemn the commune to pay him the sum of 100 603,70 euros TTC.
4. The company AC2D raises the appeal of the judgment of March 26, 2015 which rejected its request while the municipality of Fegersheim asks that the architecture firm Baussan Palanche to guarantee any conviction.
On the compensatory conclusions of AC2D:
The insufficient reasoning of the decision of 19 May 2011:
5. As the court has pointed out, the plea alleging formal irregularity of the prior decision has no bearing on the validity of its claim for compensation. Consequently, the plea alleging that the decision of 19 May 2011 was insufficiently reasoned can only be rejected.
On the right to direct payment:
6. The company AC2D argues that pursuant to the provisions of Article 6 of the law of 31 December 1975 on subcontracting, it is entitled to the direct payment of the sums in dispute.
7. According to Article 6 of the aforementioned Act of 31 December 1975: "The direct subcontractor of the holder who has been accepted and whose conditions of payment have been agreed by the owner, shall be paid directly by him for the market share he is performing. (...) ".
8. The direct payment of the subcontractor by the master to the work for the part of the contract which he executes is therefore subject to the twofold condition that, at the request of the principal contractor, the subcontractor the contractor and that the conditions of payment of the subcontract have been "agreed" by the owner in the form of an amendment to the original contract or a special act signed by both parties. (EC 3 April 1991 No. 90552).
9. According to the notice of commitment entered into on 19 March 2007 between the municipality of Fegersheim and Haar, and in particular the annex to the act of engagement in the event of subcontracting, that the company Haar asked the municipality to accept a subcontractor and to approve the conditions of payment of the subcontract for the asbestos removal services amounting to 89,112.70 euros, ie 86,884, 95 euros TTC deduction of 2,5 % deducted, with for subcontractor the company AC2D. However, this annex does not contain any details on the conditions of payment of the subcontracting contract. Therefore, if the client has, at the request of the company Haar, accepted as a subcontractor the company AC2D, he has not been able to agree terms of payment that have not been submitted to him . Failing to fulfill one of the two conditions set by the provisions of Article 6 of the Act of 31 December 1975 referred to above, the company AC2D, is unfounded to maintain that it is wrong that the municipality Fegersheim refused her direct payment for the work she did. In these conditions, there is no need for the court to decide on the end to receive opposed by the municipality.
On the fault committed by the municipality:
10. The company AC2D claims that the municipality, developer, has committed a fault by tolerating the intervention of an irregular subcontractor on the site and refraining from regularizing the situation by the general contractor, whereas the municipality opposes the inadmissibility of such a request as soon as the count has become final.
11. Article 14-1 of the law of 31 December 1975 on subcontracting provides that "the owner shall, if he is aware of the presence on the site of a subcontractor not having been subject to the obligations laid down in Article 3 or Article 6, as well as those set out in Article 5, to put the principal contractor or the subcontractor obligations ".
12. However, the existence of a claim for the benefit of a subcontractor resulting from the performance of a contract does not have the effect of rendering inapplicable the principle that all the transactions to which the execution of a works contract is included in an account of which no element can be isolated and of which only the balance determined in the preparation of the general and definitive account determines the final rights and obligations of the parties.
13. It appears from the investigation that on 12 December 2007, Haar sent its final draft invoice to the architectural firm Baussan Palanche, prime contractor. On January 23, 2008, the municipality sent the company Haar the final general statement. If on March 6, 2008, the company Haar handed to the commune of Fegersheim (to the attention of MA ..) a memory in complaint, this memory was not sent to the mastery of work in disregard of the Article 13-44 of the General Conditions of Contract (CCAG) applicable to public works contracts which provides that the contractor has a period of time to assert to the supervisor any reservations on the general account that has been transmitted by the contracting authority, the settlement of the dispute then taking place in the manner specified in Article 50. As a result, the general account has become final and the plea alleging misconduct by the municipality can not, having regard to to the intangible and definitive character of the count of the market, that to be discarded.
On unjust enrichment:
14. AC2D can not usefully invoke the unjust enrichment of the municipality for having benefited from additional work without having paid for it since the contract was not rejected.
On the guarantee call by the municipality of Fegersheim against Baussan Palanche:
15. As no judgment has been pronounced against the municipality of Fegersheim, the pleas of guarantee presented by it can only be rejected.
16. It follows from all the foregoing that SARL AC2D is unfounded to maintain that it is wrong that, by the judgment under appeal, the Strasbourg Administrative Court rejected its application.
The claims seeking the application of the provisions of Article L. 761-1 of the Code of Administrative Justice:
17. According to Article L. 761-1 of the Code of Administrative Justice: "In all proceedings, the judge shall order the party to pay the costs or, failing that, the losing party, to pay to the other party the amount he determines, in respect of the costs incurred and not included in the costs. The judge takes into account the fairness or the economic situation of the convicted party. It can, even automatically, for reasons derived from the same considerations, say that there is no place for this conviction.
18. The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the charging of the municipality of Fegersheim which is not, in the present case, the losing party, the sum that the company AC2D claims for costs incurred by it and not included in the costs. It is appropriate to charge the company AC2D a sum of 1500 euros to be paid to the municipality of Fegersheim under these provisions.
Article 1: The request of SARL AC2D is rejected.
Article 2: The guarantee appeal of the municipality of Fegersheim is rejected.
Article 3: SARL AC2D will pay a sum of 1,500 euros (one thousand five hundred euros) to the municipality of Fegersheim under Article L. 761-1 code administrative justice.
Article 4: The present judgment will be notified to SARL AC2D and the municipality of Fegersheim.