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Public Law Lawyer

The law firm Palmier - Brault - Associés is a law firm expert in public procurement law.

The lawyers of the firm Palmier-Brault Associés intervene regularly, as well in council as in litigation, on all the questions concerning the problems of public law that it is in law of the town planning, right of the public domain or law of the public service. This ability to manage cross-cutting issues of public law strengthens the advice provided to public or private clients in the area of public contracts.

The references in this area are numerous and varied and accompanied by quality certificates signed by the main clients proving their satisfaction both in terms of advice and litigation. The firm thus has a rich and varied experience both with the State (ministries, national public institutions), local authorities (Regions, Departments, Municipalities), specialized public institutions (cultural, hospital ...). The firm also advises private law companies, national and international, regularly involved in the public sphere.

Avocat droit public

In addition, the firm regularly intervenes to deal with all matters relating to civil service law, the law of administrative responsibility, planning law and the public domain.

The references in this area are numerous and varied and accompanied by quality certificates signed by the main clients proving their satisfaction both in terms of advice and litigation. The firm thus has a rich and varied experience both with the State (ministries, national public institutions), local authorities (Regions, Departments, Municipalities), specialized public institutions (cultural, hospital ...). The firm also advises private law companies, national and international, regularly involved in the public sphere.

FAQ

Can we conclude an agreement between two communities on a sanitation network delegated to a private operator?

Question:
Mrs Marie-Jo Zimmermann draws the attention of the Minister of the Interior on the consequences of the judgment (CE 3 February 2012, commune of Veyrier-du-Lac and the agglomeration community of Annecy, req no 353737) which provided useful details on the conditions of implementation of an agreement between local authorities and the pooling of the management of public services. To this end, it wishes to know whether an agreement on sewerage networks, within the meaning of Article L. 5221-1 of the General Code of Territorial Communities, may be concluded between a non-member municipality and an agglomeration community, while the latter has delegated the management of its network to a private operator.

Reply :
Ministerial Reply No. 8382 of October 29, 2013

Agreements between municipalities have been one of the first forms of inter-municipal cooperation. Article L. 5221-1 of the General Code of Local Government (CGCT) provides that "two or more municipal councils, deliberative bodies of public institutions of inter-municipal cooperation (EPCI) or mixed unions can cause between them (... ) an agreement on the objects of communal or intercommunal utility included in their attributions which are of interest to both their communes, their public inter-municipal co-operation establishments or their respective mixed unions. They may enter into agreements between themselves for the purpose of undertaking or keeping at common cost works or institutions of common utility. " The purpose of the agreement must fall within the remit of the legal persons involved in an agreement. Subject to this reservation alone, the purpose of the agreement may be broad. These agreements may relate to investment operations (creation of works) or maintenance of works (conservation), especially in the field of sanitation. However, the delegation of a public service to a private operator excludes the use of any mode of intermunicipal cooperation, such as the inter-municipal agreement, on these same missions. A municipality or an EPCI which has decided to delegate the management of its network to an operator can not concomitantly pool this management with that of another municipality or another EPCI on the basis of Article L. 5221- 1 of the CGCT. The decision of the Council of State of 3 February 2012 of VEYRIER-DU-LAC and agglomeration community of ANNECY expanded the possibilities of inter-municipal cooperation without competition and outside the public institutions of inter-municipal cooperation by holding that the intermunicipal agreement agreement by which a municipality entrusts the operation of its drinking water service to an agglomeration community was not subject to the rules of the public order. The Conseil d'Etat has attached this possibility to two conditions: - the cartel must not provoke "indirect financial transfers between authorities other than those resulting strictly from the compensation of investment costs and the operation of the pooled service, ( ...) the agglomeration community can not be regarded as acting as an operator in a competitive market "; - the agreement must tend "to the exploitation of the same public service, in geographic continuity, over the whole territory covered by these two public entities, under the operational responsibility of the agglomeration community". The solution reached by the Council of State could not be transposed to the present case, on the one hand for the aforementioned reasons relating to the delegation of the service by the agglomeration community, on the other hand because this solution has been released in the context of the operation of a public service. The case concerns a service the management of which has been delegated to a private delegate, which in essence constitutes an 'operator in a competitive market'. As such, the condition of the non-profit nature of the agreement reached by the judge would not be fulfilled.

How to make an EPCI available to municipal police officers of a member commune?

Question:
What are the conditions for making available to a public institution of inter-municipal co-operation of municipal police officers of a member commune of the EPCI for the exercise of special police powers transferred to the president of the community of communes or of agglomeration and in particular is there automaticity of the making available to the extent that the transfer of competence and powers implies the transfer of means intended for the exercise thereof?

Reply :
Ministerial Response No. 117187 of May 8, 2012

Paragraph 5 of Article L.2212-5 of the General Code of Territorial Collectivities (CGCT) provides for the possibility of hiring municipal police officers by a public institution of intercommunal cooperation (EPCI) with own taxation in order to to make them available to the interested member municipalities. In accordance with Article L.5211-9-2 of the CGCT, municipal police officers recruited pursuant to the fifth paragraph of Article L.2212-5 of the same Code may, under the authority of the President of the the EPCI, the execution of decisions taken in accordance with the special police powers transferred by the mayors of the member communes. Article L.5211-4-1-II of the CGCT, which provides that in case of partial transfer of a jurisdiction, the services retained by the municipality are wholly or partly made available to the EPCI to which the municipality adheres to the exercise of the skills of it, is not applicable in this case. Indeed, Article L.5211-9-2 of the CGCT does not provide for a transfer of powers from the municipalities to an EPCI but a transfer of special police powers from the mayors of the member municipalities to the president of a tax-exempt EPCI ( or the president of a group of communities in the area of household waste). In addition, municipal police officers are made available by the communes to the EPCI under the conditions set out in articles 61 et seq. Of the amended law n ° 84-53 of 26 January 1984, containing statutory provisions relating to the function. territorial public, is not possible. In accordance with article L.2212-5 paragraph 1 of the CGCT, the municipal police officers exercise their powers under the authority of the mayor. By way of derogation from these provisions, Article L.5211-9-2 V of the CGCT stipulates that the President of an EPCI may exercise functional authority only over the municipal police officers recruited by the EPCI with their own taxation. on the basis of the fifth paragraph of Article L.2212-5 of the CGCT. With regard to the aforementioned provisions, the provision of municipal police officers to an EPCI is not possible because of the impossibility for the President of the EPCI to exercise functional authority over the municipal police officers recruited. common words.

How to make available to an association exercising a mission of general interest agents of public law?

Question:
Mr. Emile Blessig draws the attention of the Minister of Budget, Public Accounts, Public Service and State Reform to the possibility of making agents available to an association. The resumption of the management in management of the reception of free activities without accommodation (ALSH) by an EPCI was accompanied by a transfer of the employees of an association, former delegate of public service, in the staff of the EPCI in as non-permanent agents under public law. The EPCI wishes to be able to make some of these contractual agents available, for a limited period (1 month), of an association that operates in the extension of the EPCI action on ALSH and is frequented by the same children in summer. There is therefore a close link between the activity of the association and the competence of the EPCI in matters of childhood. Article 136 of the law n ° 84-53 of January 26, 1984 laying down the statutory provisions relating to the territorial civil service provides that these agents can be made available only in limited cases listed. As far as the EPCIs are concerned, its non-incumbent agents in public-law contracts can only be made available to a member commune or to one of the public institutions attached to it. It therefore asks it to indicate to it the conditions under which the provision to an association exercising a mission of general interest, of agents under a public-law contract, may be considered.

Reply :
Ministerial Response No. 112231 of October 18, 2011

The rules for making available to territorial civil servants are laid down in Articles 61 et seq. Of Law No 84-53 of 26 January 1984 laying down statutory provisions relating to the territorial public service. The availability being, by nature, a statutory situation, the legislator has strictly declined this device to non-permanent agents. For the territorial civil service, it is the law n ° 2007-209 of February 19, 2007 relative to the territorial civil service which modified the article 136 of the law of January 26th, 1984 mentioned, to authorize, in limited cases enumerated , making available to non-permanent agents beneficiaries of a contract of public law of indefinite duration. This modified article, while opening up a mobility route to a certain category of non-titular agents, has thus intended to circumscribe these deliveries between a collectivity and a public institution attached or with a public institution of intercommunal cooperation of which it is Member State, or a public body attached to the public inter-municipal cooperation establishment of which it is a member. The aim here was to find a balance between the openness to mobility of non-permanent staff and the impossibility of creating genuine careers for them, while ensuring, in accordance with the principles set out in the Staff Regulations, that non-titular staff would continue to be recruited solely to meet the direct needs of a community and not to meet any external needs. If it is not possible to make non-permanent agents available to an association exercising a mission of general interest, there is nothing to prevent that association from being made available to officials under the conditions laid down in Article 61-1 of the Law of 26 January 1984.