Public service delegation lawyer
The law firm Palmier - Brault - Associés is a law firm expert in public procurement law.
Under the direction of Sébastien Palmier and Valérie Brault, the firm has developed a recognized expertise in project engineering and has a perfect mastery of public concession contracts that can be concluded both for the needs of the organization. public services of local authorities for the enhancement of their public domain (concessions to operate seaports, school transport, sanitation, district heating, casinos).
1 - Elaboration
When the political decision is made on the project and the choice of delegated management is decided by the delegating authorities, a report presenting the document containing the characteristics of the services to be provided by the delegate "(Article L. 1411-4 of the General Code of Territorial Collectivities - CGCT) must be drawn up by the services of the organizing community.
The preparation of such a report is a substantial formality which must be renewed at each new consultation: consequently, after the cancellation of a previous public service delegation procedure, it is still necessary to draw up a report of this a type that will not fail to mention, even quickly, the existence of a previous procedure.
No legal or regulatory provisions specify the exact content of this report.
However, this report must include at least a detailed analysis of the context in which the choice of management method is made, as well as the main characteristics of the project and the economic and legal data that must appear in the envisaged contract.
This report should include the following paragraphs:
Presentation of the service:
- object of the service,
- nature of the missions to be performed,
- works used ...
Presentation of the different possible solutions:
- direct management or delegated management?
- the different types of public service delegation (concession, leasing, interested management).
Reasons for using a public service delegation agreement:
- development of a comparative balance between the various possible solutions,
- explanation of the choice to reject the unsuccessful solutions,
- explanation of the choice to use a specific type of public service delegation,
- savings that can be removed from the choice of delegated management,
- correlation between local constraints and the choice of delegated management ...
Presentation of the main elements of the envisaged contract:
- nature of the tasks entrusted to the delegate (proposed works, service to users, etc.),
- counterparty remuneration and tariff level,
- duration of the contracts,
- out of the goods,
- extent of controls,
- definition of public service obligations ...
2 - Opinion of the Advisory Committee
local public services
The Consultative Commission for local public services must systematically be consulted for an opinion by the deliberative assembly (article L. 1413-1 of the CGCT) before the deliberative deliberations of the deliberating assembly on the choice of the delegation. The referral can not come from the executive authority alone.
This consultation is considered to be a substantial formality the absence of which renders the whole delegation procedure irregular.
It is consulted on the basis of the presentation report.
Although consultation is mandatory, the opinion it renders has no binding legal force.
In order to be able to render this opinion, the members of the Commission must be aware of sufficient elements relating to the draft delegation.
The composition of the Consultative Commission of local public services is summarily set by article L. 1413-1 of the CGCT, which provides that it is chaired by the mayor, the president of the general council, etc ... and that it includes members of the deliberative assembly appointed in accordance with the principle of proportional representation, and representatives of local associations, appointed by the deliberative assembly or the deliberative body. Depending on the agenda, the committee may, on the proposal of its chairman, invite to participate in its work, in an advisory capacity, any person whose hearing seems useful to him ".
The members of the deliberative assembly must be appointed within the Commission according to the principle of proportional representation according to the strongest remainder, while ensuring the validity of the representation of the various components of the assembly, in particular by the presence of a elected of the opposition.
To ensure a satisfactory balance of the Commission, a ministerial circular of 7 March 2003 considers it desirable that the number of representatives of local associations, among which taxpayer associations can be found, be equal to that of elected representatives. However, it is not an obligation. The appointment of these representatives involves contacting the local associations concerned to propose some of their members.
The circular of 7 March 2003 merely states the following: " Rules of procedure adopted at the first meeting of the committee could usefully determine, in particular, the periodicity of the meetings, the methods of determining the agenda, the conditions for convening and, where appropriate, sending the documents, the possible conditions of quorum, the methods of deliberation of the members and the conditions under which an advertisement will be given to the debates, the report of these works before the assembly of the local executive concerned appearing a suitable track ".
If the Administrative Court of Marseilles was able to judge that the opinion of the Commission could be put back for consultation in session (that is to say without being part of the convocation of the members of the municipal council: TA Marseille, June 12, 2005 « Ass FARE SUD ", recommendation No. 0404639), it is prudent to attach this notice to the regular convocation of the deliberative assembly in view of the tendency of the administrative judge to scrupulously respect the right of information of elected representatives.
3 - Opinion of the Joint Technical Committee
The consultation of the Joint Technical Committee as part of a public service delegation procedure is explicitly not provided for in any text.
However, the case law imposes it by reference to the provisions of Article 33 of Law No. 84-53 of 26 January 1984 according to which:
" Joint technical committees are consulted for advice on issues relating to:
- To the organization of the administrations concerned;
- The general conditions of operation of these administrations;
- Programs for the modernization of methods and techniques of work and their impact on the situation of the personnel and the training plan provided for in Article 7 of the aforementioned Law No. 84-594 of 12 July 1984;
- When examining the main orientations to be defined for the accomplishment of the tasks of the administration concerned (...) "
In the end, the referral to the CTP is required even when the use of public service delegation does not entail any change in the organization and operation of an existing administrative service.
The composition and functioning of the Joint Technical Committees of local authorities are determined by Decree No. 85-565 of May 30, 1985.
4 - Deliberation on the principle
of the public service delegation
After having collected these different opinions, the deliberating assembly pronounces on the principle of the delegation in application of the article L. 1411-4 of the CGCT which provides that:
" The deliberative assemblies of the local authorities, their groupings and their public establishments decide on the principle of any delegation of local public service ", the article also specifying:" they rule in the light of a report presenting the document containing the characteristics of the services to be provided by the delegate ".
This is the report of the executive authority to which must be attached the opinions rendered by the Consultative Commission of Local Public Services and the Joint Technical Committee. In this report, the executive presents the characteristics of the services that are expected from a future delegate (Article L. 1411-4 of the CGCT) but also the advantages of delegated management over direct management.
A comparative reminder of both types of management should be included even summarily in the presentation report.
All these documents must be sent at least 5 clear days before the meeting, but the rules of procedure may sometimes provide for a longer period.
No implementation measure of this deliberation can be initiated before the decision on the choice of the management method has been transmitted to the prefecture, has been returned and has been regularly published (CGCT, article L. 2131-1 et seq.) .
5 - Advertising
The procedure for publicizing a public service delegation is provided for by Articles L. 1411-1 and L. 1411-5 of the CGCT with the precision provided by Article R. 1411-1 which requires insertion in an authorized publication. to receive legal notices and in a specialized publication corresponding to the economic sector concerned.
When the public service delegation does not include a public works concession, the deadline for submitting applications must be at least one month after the date of the last publication according to article R. 1411-1 of the CGCT.
However, when there is a work concession, the deadline for receipt of applications can not be less than 52 days from the date of dispatch of the notice to the Office for Official Publications of the European Union.
Article R. 1411-1 of the CGCT states that:
" VSthis insertion shall specify the closing date for the submission of candidatures which must be fixed at least one month after the date of the last publication. It also specifies the methods of presentation of these offers and mentions the essential characteristics of the envisaged convention, in particular its object and its nature. ".
It is desirable to include in the advertisement the main features of the proposed project. The notice must also indicate to the interested candidates the methods of submission of applications and therefore the documents to be attached to their application file.
There is no provision in the General Code of Territorial Collectivities on the nature or level of the professional and financial guarantees required of candidates. The community therefore has great freedom to determine the professional and financial guarantees it expects from candidates. These guarantees must, however, be related to the subject of the contract without being too restrictive in order not to limit competition.
Nor should the attribution criteria, which may be limited at the nomination stage, be confused with the selection criteria used to retain the best candidate's bid.
The duration of the delegation is an essential characteristic of any public service delegation. The Council of State has decided that this duration must be specified at the latest when sending the consultation file necessary for the drafting of tenders (CE 25 July 2001 "Iffernet Water Union", no. 231,319, Tables, pp. 1041).
6 - Examination of candidatures by
the Public Service Delegation Commission
The composition of the Public Service Delegation Commission is set by article L. 1411-5 of the CGCT: for example, for a municipality of more than 3,500 inhabitants, the Commission comprises the president of the delegating authority, who assures right the presidency, and 5 members of the municipal council elected within it to the proportional representation (to see on this subject articles D. 1411-3 and following of the CGCT).
In addition to members with voting rights, the accounting officer of the delegating authority and the representative of the Departmental Directorate for Competition, Consumer Affairs and Fraud Control (DDCCRF) also sit on the Commission but only with a consultative voice. However, the meeting of the Commission is irregular if they have not been convened (TA Lyon, 5 April 2000, "Mr Alain Coquard", application no 991768, BJCP 2000, p. 377).
Concerning the addition of additional members because of their competences, article L. 1411-5 of the CGCT allows community agents recognized for their competences to be able to participate in its work.
The Public Service Delegation Commission opens the bids and draws up the list of candidates eligible to submit an offer after examining their professional and financial guarantees and their ability to ensure the continuity of the public service and the equality of the users before the public service "(Article L. 1411-1 paragraph 3).
It is therefore up to the Public Service Delegation Commission alone to examine, for each candidate, his application including all the elements required by the public notice of invitation to tender and to record on the list of candidates allowed to submit an offer all those presenting the guarantees required by this notice.
The Commission will have to pay particular attention to the examination of the candidates' financial capacities as long as the investments are substantial and spread over several years. This requires certain solvency and guarantees provided by a banking institution or a holding company so that the delegating authority can ensure the applicant's ability to ensure the continuity of the public service.
As soon as the conditions of capacity are satisfied, the Delegation Commission is obliged to list all the candidates who have fulfilled the conditions previously required. The delegating authority does not have the right to fix in advance the maximum number of candidates that may be selected and neither can the Commission, after having examined the guarantees, be included in the list. only part of the candidates who have passed these examinations (EC 30 June 1999, "SMITOM", No. 198147).
The mandatory documents that candidates must provide are listed in Title IV of Decree No. 97-638 of 31 May 1997.
7 - Sending the necessary documents
at the submission of bids and submission of bids
The community sends each of the selected candidates a file containing all the documents that will be necessary for the preparation and submission of tenders (L 1411-1 paragraph 4 of the CGCT). The selected candidates must find all the technical and financial information needed to draw up their tender.
In application of the "Corsica Ferries" case law (EC 15 December 2006), candidates may be invited to submit their application and tender at the same time. The documents comprising the application and the documents making up the tender must then be submitted in two different envelopes and examined at two separate meetings of the public service delegation commission.
The question arises as to whether the community should address the draft contracts with the technical specifications. Article L. 1411-1 paragraph 4 of the CGCT states simply that " the community sends each candidate a document defining the quantitative and qualitative characteristics of the services, as well as, if applicable, the pricing conditions for the service rendered to the user ".
These legislative requirements are unclear, and some also advocate adding to the consultation file the draft contracts that the community wishes to see signed. Admittedly, the candidates are then in a position of inferiority to the community since they are imposed a contractual conception that has not been previously negotiated. But, this approach is useful to avoid precisely that discussions drag on when drafting the contract and, if necessary, the specifications.
In drafting these documents, the community must ensure the coherence of their respective provisions: when the various documents (public notice, consultation rules, terms of reference ...) are contradictory, the judge considers that the candidates did not have complete and relevant information and therefore consider that the community has failed to comply with its advertising obligations (EC 22 Mar. 2000, "Lasaulce", No. 207804).
No legal or regulatory deadline exists, either for sending the documents of the consultation, or for the submission of offers.
The public person must, however, allow sufficient time for candidates to submit their offer after receipt of the consultation file: the ministerial reply published in OJ Ass. Nat., November 18, 1996 refers to "a reasonable time given the complexity of the case".
As regards the period of validity of the candidates' tenders, it has been considered, in the case where the consultation rules issued by the delegating authority provide for a deadline for the validity of the tenders, that the latter can be extended only if 'with the formal agreement of all the candidates admitted to submit an offer (EC 13 December 1996' Syndicat intercommunal pour la valorization des déchets du secteur du Cannes-Grasse ', application n ° 169.706).
The community is bound by the rules and criteria set out in the consultation documents. The same is true of the candidates who received these documents: it was judged that the offers of companies that did not meet this requirement were to be rejected (TA Grenoble, November 8, 2002 "Prefect of Haute-Savoie" , No. 014243).
8 - Analysis of the offers
by the Public Service Delegation Commission
Under Article L. 1411-5 of the CGCT, the opening of bids containing offers and their analysis is carried out by the Public Service Delegation Commission.
The composition of the Commission must not be modified between the candidatures phase and the offers phase, under penalty of censorship by the administrative judge.
In theory, the Commission exercises a merely consultative power by submitting a detailed opinion, which, as will be seen, does not bind the executive authority, which then freely engages in any useful discussions with one or more undertakings that have submitted an offer.
The purpose of the notice is to inform the executive authority of the strengths and weaknesses of each of the tenders.
The report must contain the list of the tenders examined which must be presented in a preferential order and the motivation of that order in consideration of the technical, financial and legal solutions proposed (TA Grenoble, 26 October 2001, "Cie des Eaux et de l'Eau"). Ozone v. Syndicat intercommunal un vocation de Rieu ", 003124). In that judgment, the Administrative Court of Grenoble declared an award procedure irregular in which the Commission merely analyzed the tenders without expressing its opinion.
However, the opinion of the Commission occupies a significant place in the procedure for selecting the delegate:
- Where the Commission distinguishes an offer judged preferential by the Commission, the executive authority may depart from it only by giving a strict justification for its refusal to follow the Commission's opinion,
- The report is the result of the technical analysis of the offers by all members of the Commission, which is a work rarely taken up by the executive. That is to say the importance of the position taken by the Commission and the risk of misuse of procedure or a manifest error of assessment when the Executive departs from the Commission's prevailing view.
- When the executive wishes to hide behind the Commission's opinion, it is not to be feared that the Commission will ask the applicants for additional clarifications in order to make clear the interest of the offer that emerges. of the other candidates.
In its report, the Public Service Delegation Commission must finally indicate the follow-up to be given to the procedure.
9 - Negotiation with the candidates
The last paragraph of Article L. 1411-5 of the CGCT states:
"In view of the opinion of the Committee (...) the authority empowered to sign the Convention freely engages in any useful discussions with one or more companies which have submitted an offer ".
The authority empowered to sign the agreement is not legally bound by the position taken by the Public Service Delegation Commission.
Thus, according to the letter of Article L. 1411-5, the authority empowered to sign the agreement may only apply to one company (EC 14 March 2003, "Sté Air Lib", 251610). However, the Administrative Court of Strasbourg (TA Strasbourg, 22 November 2005 "Sté Amnéville Loisirs", application number 0502778) decided to carry out a control of the motive which led to not inviting a candidate to participate in the negotiations then to sanctioned the error committed by the community in the analysis of the offers.
The authority may be assisted during the negotiation phase by qualified persons, who may provide technical and legal assistance, and may, during negotiations, make limited adaptations to the purpose of the contract, justified by the interest of the service, devoid of discriminatory character, and on condition of respecting the principle of the equality of treatment between the candidates (CE 21 June 2000, "Syndicat Intercommunal de la Côte d'Amour").
It was decided that another member of the deliberative assembly (for example a deputy mayor) could be given the task of monitoring this negotiation, provided that he did not take or sign any decision (CAA Bordeaux, 18 March 2003 , "SA Groupe Partouche", application number 99BX02772).
The fact that the decree designating an elected official to assist the authorized authority is illegal has no bearing on the legality of the deliberation approving the choice of delegate (CAA Bordeaux, 31 January 2006, "SA Groupe Partouche", no. 02BX02398).
The negotiation phase is likely to significantly change the offers. There is therefore no reason why the authority empowered to negotiate should consult the Delegation Commission during this phase so that the Commission can update its initial opinion in the light of the new elements emerging during the negotiations (TA Nice, 13 April 1995). "Syndicat intercommunal for the revaluation of the waste of the sector Cannes-Grasse", n ° 95.922).
This new consultation must give rise to a new opinion. The executive must then complete the negotiation in the light of this new opinion.
The principle of equal treatment between candidates in the public service delegation procedure is strongly reiterated by the Conseil d'Etat (see CE 15 June 2001 "Syndicat intercommunal d'assainissement of Saint-Martin-de-Ré and of the Fleet in Re ", ECR 265).
On the basis of this principle, the Council of State has admitted that during the negotiations a candidate may submit an offer whose amount is much lower than the amount of his initial offer, provided that the principle of equality between candidates is respected, that is to say that the candidate concerned did not benefit from privileged information and is able to justify the decrease of the amount of his proposal (CE 9 August 2006, "Compagnie Générale des Eaux", req No. 286.107).
When the authority empowered to sign the agreement considers that all the explanations have been given, that the draft contracts have been usefully completed during the interviews and that the project can be launched with serious chances over time, it takes the decision to stop the negotiation.
10 - The choice of delegate
and the decision of the deliberative assembly
The final choice of the delegate belongs legally to the deliberative assembly on proposal of the executive. Indeed, as soon as it has been chosen, the authority empowered to sign the agreement submits to the deliberative assembly an adoption proposal in favor of the selected company.
One must be very vigilant about the procedure surrounding the vote of the deliberation.
Article L. 1411-5 indicates that the authority empowered to sign the agreement transmits to the deliberating assembly, in addition to the report of the Public Service Delegation Commission, the reasons for choosing the successful candidate and the general economy of the contract which means that the executive must attach to the convocation the report he has written to justify his choice but also the draft contract to be approved by the members of the deliberative assembly.
Thus, the Administrative Court of Lyon has ruled that the president of a general council commits an illegality by simply transmitting the report of the Commission without transmitting his own choice (TA Lyon, 19 April 2000, "Société des Autocars Stéphanois", MP 2000, n ° 5 p. 32).
The documents on which the deliberative meeting is held must be sent to it at least fifteen days before its deliberation (Article L. 1411-7 paragraph 2). This is an exception to the rule that the convening of a deliberative assembly, accompanied by a summary note and the necessary documents must be sent at least 5 days before the meeting.
The fifteen-day period is a frank delay, the lack of which constitutes a substantial defect in the procurement procedure which is irregular (CAA Marseille, 6 February 2003, "Sté de l'Helguen", application No. 01MA1813).
Jurisprudence requires that the draft delegation contract be submitted to the deliberative assembly (EC 21 June 1999, "Authorized Trade Union Association of the Grand Canal of the City of Briançon", application No. 152.369) in addition to the report of the Public Service Delegation Commission, the report of the executive explaining the choice of successful candidate and finally the general economy of the contract.
The lack of complete information of elected officials is likely to cause the irregularity of the procedure. In addition, the Council of State considers that the executive authority is obliged to grant any request for additional information, since this request is not dilatory (EC 23 April 1997, "City of Caen c / Paysant"). ", No. 151852, AJDA 1997, p. 518 et seq.).
The deliberating assembly decides on the actual text of the delegation contract but also on the choice of delegate: it can either approve the contract, disapprove the contract, or decide to request additional information. It can thus ask the executive authority to renegotiate in order to modify certain clauses of the agreement (Report Y. Durand, JOANOctober 10, 1992, p. 117).
The Council of State recalled that the seizin of the municipal council can be the occasion for this one to exercise its right to abandon, for a motive of general interest, the procedure engaged (CE 10 January 2007 «Company Pumps funeral and funeral advisers of Roussillon ", No. 284.063).
In case of approval, the deliberating assembly authorizes the executive to sign the contract.
The deliberation deciding to accept the offer of a candidate constitutes an individual decision creating rights for the benefit of the delegatee (CAA Lyon, 24 October 2000, "Sté French Air Service and Val-d'Isère Commune", no. 96LY01868). Consequently, the deliberation can not be repealed after the expiry of the litigation period of two months from the date of its publication.
Likewise, withdrawal of the deliberation in the event of illegality is possible only within the 4-month period following the taking of this decision and must, in addition, mention the grounds of law justifying the withdrawal (CE Assemb. 2001, "Ternon", RFDA 2002 p. 77 and CE March 17, 2004, "Municipality of Val-d'Isère", req. No. 228428).
Reminder: two months must elapse between the deadline for the submission of bids and the vote on the deliberations of the deliberating assembly concerning the choice of delegate.
Interpreting Article L. 1411-7 paragraph 1 which provides that " at least two months after referral to the commission provided for in Article L. 1411-5, the deliberating assembly shall decide on the choice of delegate and the delegation contract ", The State Council recently clarified that the minimum period of two months runs in reality as of the deadline for submission of offers (CE Notice 15 December 2006, No. 297.846, see for an application: CAA Marseille, 30 April 2007, "Compagnie Générale des Eaux", application No. 05MA02050).
After the deliberation of the deliberating assembly on the choice of the delegate and the contract of delegation, it is no longer possible to resume negotiations, even if the executive authority would submit again for the approval of the assembly the contract changed as a result of the resumption of these negotiations. Only material corrections can be made but absolutely no modification of the legal text (CAA Marseille, March 26, 2007, "Operating company of the casino of Briançon", n ° 04MA00354).
In accordance with the provisions of Article L. 2121-24 of the CGCT, the deliberation approving the choice of the successful tenderer and the proposed contracts must be publicized by inserting the device in a local publication and by posting in city council or at the headquarters of the delegating authority, in addition to the publication of administrative acts.
Articles L. 2131-1 and L. 2131-2 of the CGCT provide that acts taken by local authorities - including agreements for the concession or leasing of local public services - are automatically enforceable as soon as it has been on the one hand, proceeded to their publication or notification andon the other hand, proceeded to their transmission to the representative of the State.
Taking the consequences of these provisions, the Council of State considered that the executive of a local authority can not sign a contract of delegation of public service or public market after that the deliberation of the assembly authorizing it has become enforceable because of its transmission to the Prefect (EC 20 January 1989, "City of Millau", No. 70.686, Public markets No 241 p.12 and CE Opinion Section 10 June 1996, "Prefect of the Côte d'Or", rec. p. 198).
If this is not the case, the decision to sign the contract is illegal and results in the illegality of the contract itself without any regularization being possible (EC 20 October 2000, Société "CITECABLE EST" rec. 457).
The signature of the delegation contract can therefore only take place after the deliberation of the municipal council approving the choice of the delegate and authorizing the executive authority to sign the contract has been sent to the control of legality accompanied by the project (s) of agreement.
In order to avoid any dispute, it is necessary to proceed to the signature of the contract at least the day after the stamped by the prefecture has returned to the headquarters of the community, this to prevent the date of signature of the convention is the same as that which appears on the stamps or punches affixed by the prefecture services on the documents.
11 - Signature of the agreement, transmission of the signed agreement to the Prefect and final publicity measures
Once the agreement has been signed, the executive authority must transmit again to the State representative, in addition to the signed agreement, all the documents of the proceedings within 15 days of this signature.
The executive authority must then notify the signed agreement to the delegate and certify, by a mention affixed to this agreement, that the obligation of transmission to the prefecture has been respected by specifying the date of the transmission (Article L. 1411-9 of the CGCT ).
Then, the executive authority must inform the Prefect, within 15 days, of the date of notification of the agreement: it is this last information which constitutes the starting point of the period of recourse available to the Prefect in the exercising its control of legality (EC 15 April 1996, "Préfet des Bouches-du-Rhône"), to refer the agreement itself to the Administrative Tribunal.
The agreement concluded must be made public in accordance with the provisions of the "Tropic Travaux Signalisation" case law (CE Assembly 16 July 2007, application No. 291.545, AJDA 2007, p. 1577) which requires that administrative contracts awarded after a competitive procedure be subject to appropriate publicity measures "Consisting in particular of a" notice mentioning both the conclusion of the contract and the terms of its consultation ".
This requirement aims to make the two-month period available to the foreclosed competitors to form an appeal in full litigation directly against the contract.
Mr Jean-Jacques Urvoas draws the attention of the Minister of Economy and Finance on the public service concession contracts in which the concessionaire is entrusted with the design, construction and operation of a complex aquatic. Such an operation relies in particular on the following elements: the provision by the licensor of the base land; the granting of an equipment subsidy by the grantor, intended to participate in the financing of the construction; the payment by the grantor, for the benefit of the concessionaire, of a public services fee for the reception of schoolchildren and associations; the assumption of the concessionaire of obligations related to the public service (opening hours and access tariffs defined in the contract, maintenance of the equipment (GER), royalties of occupation of public domain and control, reports annual operating contribution by the grantor, for the benefit of the concessionaire, and whether, in order for the contract to meet the criteria for the award of public services, the amount of the subsidy equipment is capped at a certain percentage of the total investment In essence, for an investment of EUR 15 million, can a grant of EUR 10 million be awarded by the licensor without because of the nature of the contract?
Under national law, concessions are subject, depending on their main purpose, to the provisions applicable to public service delegations or to the provisions applicable to public works concessions. A public service delegation is a contract by which a legal person governed by public law entrusts the management of a public service for which it is responsible to a public or private delegate, the remuneration of which is substantially related to the results of the operation of the service. (Article 38 of Law No. 93-122, known as the Sapin Law). Public works concessions are administrative contracts whose object is to have all building or civil engineering works carried out by a concessionaire whose remuneration consists of either the right to exploit the work or the right to use it. a price (article 1 of the ordinance n ° 2009-864 of July 15th, 2009 relative to the concession contracts of public works). In both cases, concessions are distinguished from public service or works contracts by a financial criterion. Public contracts are characterized by the payment of a price by the contracting authority in return for the service ordered, while the remuneration of the public service delegate is substantially linked to the results of the operation of the service. In this sense, the qualification of a contract as a public service delegation or public works concession implies that the concessionaire bears, at least in part, the risk of exploitation. Concessions may, where appropriate, provide for mixed remuneration consisting of fees paid by users and sums paid by the public concession holder (grants or other sources of financing). The Conseil d'Etat considered that such contracts remain public service delegations provided that the additional remuneration remains limited (EC, June 30, 1999, SMITOM, n ° 198147), or that it is linked to the results of operation of the service or work (EC, 7 November 2008, Department of Vendée, No. 291794). On the other hand, larger subsidies, constituting a guarantee of financial equilibrium for the benefit of the operator, are likely to lead to requalification in public markets. The payment of a subsidy is therefore incompatible with the qualification of concession when it removes any real risk of exploitation, even though the financial participation would be limited in its amount (EC, June 5, 2009, Société Avenance enseignement et santé , No. 298641). No text sets a numerical limit beyond which the importance of the grantor's financial participation in relation to the amount of investments made by the concessionaire would call into question the qualification of concession. The assessment of the criterion of remuneration must be made on a case-by-case basis, depending on the specific factual circumstances of each case, and in particular on the economics of the agreement.
Mrs Marie-Jo Zimmermann asks the Minister of the Interior whether, when a community or a public institution sets up a public service delegation, it is imperative to set, within the framework of the deliberation imposed by the Article L. 1411-4 of the general code of local authorities and barely illegality of deliberation, all the characteristics of the contract of the delegation to come (duration, amount, reciprocal obligations ...).
Article L.1411-4 of the General Code of Local Authorities states the following requirements: "deliberative assemblies of local authorities, their groupings and their public institutions decide on the principle of any delegation of local public service after collecting the opinion of the local public services advisory committee provided for in Article L. 1413-1. They decide on the basis of a report presenting the document containing the characteristics of the services to be provided by the delegatee ". No legal or regulatory provisions specify the exact content of this report, nor the notion of "report presenting the document containing the characteristics of the services to be provided by the delegatee". However, the Administrative Court of Appeal of Lyon held that this report of presentation should not be confused with the file of consultation, delivered later to the companies admitted to deposit an offer (CAA Lyon, June 16, 2011, n ° 11LY0456, Syndicat studies and disposal of Roannais waste). Thus, the report is not intended to be as detailed as the one presenting specifications. With regard to the precise elements to be included in the introductory report, the judge retains a fairly flexible assessment, since he first examines whether the information provided allows the deliberative assembly to make a sufficiently informed decision. The Administrative Court of Appeal of Marseilles specified in a decision of May 12, 2011 that the report of presentation had to indicate "the quantitative and qualitative characteristics of the services as well as, if necessary, the conditions of pricing of the service rendered" . It is, however, not imperative at this stage for the Assembly to have before it a proposal for the duration of the delegation. Similarly, it can not be required that the project be completed when it is presented to the deliberative assembly at the stage of the principle of the delegation of public service, the financial data may still evolve significantly (CAA Marseille, May 12, 2011, No. 10MA04368, Federal Association for Regional Environmental Action). In those circumstances, it may be considered that the presentation report must contain at least a detailed analysis of the context in which the choice of management method is made and the main features of the contract which it is intended to conclude, in order to allow to the deliberative assembly to make a sufficiently informed decision. Thus, the missions of the service, the current management methods and the evolution envisaged, the presentation of the various possible solutions, the proposal to resort to a delegation of public service, and the presentation of the main elements of the envisaged contract appear to be the elements necessary for a deliberative assembly to decide on the principle of the use of a delegation of public service. This report may also include, in the interests of legal certainty, the procedures for remunerating the delegatee and any sharing of the operating risk with the delegating authority, the terms of billing to the user or the requirement of incorporation. or not of a dedicated company. Although not mandatory, the publication of this information in the presentation report contributes in any case to the respect of the requirements of transparency, to which local and regional authorities are subject, in accordance with the principles of public procurement of European Union law ( ECJ 7 December 2000, Telaustria Verlags GmbH, Case C-324/98).
Mr. François Vannson draws the attention of the Minister of the Economy and Finance on the consequences, for some tourist resorts, of the judicial recovery of the company Transmontagne. Indeed, the financial difficulties encountered by this company could lead to an early termination of public service delegation agreements for ski lifts. These agreements constitute the mode of management of the stations privileged by the local authorities. In this case, it appears that the difficulties of the company concerned do not in themselves find their source in the management of public service activities related to the operation of ski lifts but in the management of purely commercial activities. They therefore do not call into question the principle of public service delegations as the main mode of management of ski lifts and the economic reliability of the resorts concerned, which retain their potential and their tourist attractions. Therefore, he would like to know if he intends to take steps to ensure that in the future a very clear distinction is made between purely commercial activities and activities of general interest managed through public service delegations. in order to avoid the risks of public service breakdown in the event of financial difficulties of the delegated company.
Under Article L. 1411-1 of the General Code of Local Authorities, a public service delegation is defined as a delegated mode of management by which a community entrusts via a contract, the management of a public service to an operator "Whose remuneration is substantially related to the results of the operation of the service". Commercial activities and those of general interest can not be dissociated in a public service delegation, the operator being entrusted with the responsibility of operating a public service involving commercial activities allowing him to generate a profit. The operator therefore bears a risk of exploitation. Otherwise, the contract would be requalified in a public contract. With regard to the issue of the continuity of the public service, the legal regime applicable to public service delegations provides for a number of mechanisms to ensure this continuity in the event that the delegatee encounters difficulties. The parties thus have the possibility of concluding amendments in order to adapt the initial contract to the constraints occurring during the execution, provided that the addendum does not substantially modify an essential element of the agreement (Council opinion n ° 371234). State of 19 April 2005). In addition, the delegating authority may ask the administrative court to pronounce a termination for misconduct in case of persistent non-performance of the service or failure to fulfill the financial obligations on the part of the delegatee. This power of termination is recognized to the delegating authority even in the silence of the convention (CE, May 2, 1958, Distillerie de Magnac-Laval). The delegating authority may also decide to terminate the contract unilaterally on grounds of public interest. It must then compensate the damage suffered by its co-contractor. In the event that an immediate reallocation is not possible following an early termination, the community may also decide to temporarily resume the operation of the pay-as-you-go service (EC, July 10, 1996, Coisne).