From what threshold can we consider that an endorsement upsets the general economy of the contract? Should we assess the increase per lot or in relation to the total amount of the transaction?
Article 20 of the Code des Marches Publics recalls that, except in the case of unforeseen technical constraints not arising from the parties, it can not upset the economy of the market or the framework agreement, nor change its purpose. No national or Community text sets a threshold beyond which an endorsement would upset the economy of the contract. The measure of the upheaval is therefore, as it is, a question of a species, left last to the discretion of the judge on appeal by a third party. In his conclusions on the decision of the Council of State, July 30, 2003, Commune de Lens, the Commissioner of the Government Denis PIVETEAU summarizes the state of the case law: "For the case law to allow hesitation, it is necessary in practice that the increase does not exceed 10 to 20 % "
In a decision of the Council of State of 19 January 2011, SARL Enterprise Matéos, the Council of State recalls firstly, that there is no quantitative threshold to assess the upheaval of the general economy of the contract. On the other hand, it is appropriate to assess the impact of the increase not on a batch basis but on the total amount of the contract.
To see the stop: CE 19 January 2011, SARL Entreprise Matéos, req.no. 316783