Public service delegations
Order No. 2016-65 of 29 January 2016 on concession contracts and Decree No. 2016-86 of 1 February 2016 define the rules for the award and execution of public service delegations. The Cabinet Palmier - Brault - Associés decrypts for you the jurisprudential news of the delegations of public service.
In that case, the Conseil d'État recalls that the fairness of the contractual relations precludes a co-contracting party from availing itself of the irregularities that it may have committed to claim the nullity of its own contract and to release itself from its contractual obligations.
Teaching n ° 1: No one can invoke his own turpitude to question his contract
In its judgment of 28 December 2009, Beziers I ", The Council of State has already had the opportunity to recall in his famous decision" Beziers I " than " the irregularities on which the parties rely are those which, having regard to the requirement of fair contractual relations, may be invoked before it (CE Ass 28 December 2009, application No. 304802)
The Council of State reminds that when a contract provides for a conciliation procedure prior to a dispute or litigation the public person can not legally issue an enforceable title for the settlement of sums corresponding to a dispute relating to the performance of the contract without putting previously implemented the mandatory conciliation clause. On the other hand, it can not contractually renounce its power to issue an enforceable title against its co-contracting party after the implementation of the conciliation procedure.
The Council of State recalls that the candidates for the award of a concession contract must comply with the requirements imposed by the regulation of the consultation and may be exempted from this obligation only in the event that one of these requirements is obviously devoid of any utility for the examination of candidatures or offers.
Teaching # 1: Reminder binding nature of the consultation rules
The texts and the case law recall the mandatory nature of the consultation rules
Order No. 2015-65 of 29 January 2016 now allows certain contracts for street furniture to be attached to the category of service concessions and to abandon the systematic categorization of a public contract which essentially stemmed from a desire to submit to the rules of advertising and placing in competition those contracts which could not, if they do not relate to a public service, be subject to the rules applicable to public service delegations.
This judgment is doubly interesting: on the one hand, it considers that a contract for the exploitation of street furniture, including for advertising purposes, can be qualified as a service concession within the meaning of Order No. 2016-65 of 29 January 2016 on concession contracts; on the other hand, it clarifies the conditions under which an interim concession of services can be concluded by mutual agreement without complying with the rules on advertising and call for competition.
Referred suspension and delegation of public service: some indications on the elements allowing to prove the urgency!
In this case, the Conseil d'Etat gives interesting indications on the elements that can be taken into consideration by the judge of the interim suspension to assess the condition of urgency to suspend a decision made by a public purchaser within the framework of the execution of a public service delegation.
As a reminder, Article L. 521-1 of the Code of Administrative Justice states that the judge hearing the application for interim measures may order the suspension of the execution of a decision, or of certain of its effects, when the urgency justifies it and when a means of creating, in the state of the investigation, a serious doubt as to the legality of the decision. The condition of urgency to which the imposition of a suspension order is subject must be regarded as satisfied when the contested administrative decision prejudices in a sufficiently serious and immediate manner a public interest, the situation of the applicant or the interests he intends to defend. It must be demonstrated, supporting evidence, which was not the case here.
This judgment provides an opportunity to recall the terms of compensation for return goods at the end of a concession contract including in case of early termination
As a reminder, so-called "return" goods are all goods, movable or immovable, made or acquired under a concession contract and which are, in principle, indispensable to the operation of the service.
In the silence of the agreement, these goods are deemed to belong to the public person as soon as they are made or acquired. In addition, the parties have the option to qualify as goods of return, by contractual stipulation, goods that do not appear necessary but only useful for the operation of the service (EC 21 December 2012, Municipality of Douai, n 342788) .
Illegality of the request for delivery of a conditional offer taking into account the simultaneous award of another contract by another public purchaser
A commune had launched a procedure for the award of a delegation of public water distribution service, under the authority of the ordinance n ° 2016-65 of January 29, 2016 and the decree n ° 2016-86 of the 1st February 2016 relating to concession contracts. As this contract was awarded to Suez Eau France, the Urban and Rural Development Corporation (SAUR), an unfortunate candidate, appealed to the judge hearing the application for interim relief asking her to set aside all the decisions relating to the and if the municipality intended to conclude the contract, to order the resumption of the award procedure at the notice stage. Since the judge hearing the application for interim relief annulled the award procedure as of the analysis of the tenders, the municipality lodged an appeal in cassation before the Council of State, which pronounces in this case on the legality of the request by the buyer. public of a conditional offer taking into account the simultaneous award of another contract by another public purchaser.
Concession of street furniture: pay attention to the respect of the local regulation of advertising!
The City of Paris has launched a procedure for the award of a service concession relating to the operation of public information publicity furniture. After becoming a candidate, the applicant company declined to submit an offer and asked the city to declare the procedure unsuccessful. After the designation of the successful tenderer, that company applied to the administrative court for a pre-contractual injunction for the annulment of the award procedure. In that judgment, the judge hearing the application for interim measures rules on the impact of the breach of the local advertising rules on the regularity of the award procedure.
The Council of State decides on the new provisions relating to the modifications of concessions in progress
Some applicants have asked the State Council to annul several decrees approving amendments to concessions made between the State and companies for the concession of the construction, maintenance and operation of motorways. Some also requested the cancellation of the regulatory clauses of the concessions and specifications so approved.
The ruling in this case is interesting for two reasons: on the one hand, it is one of the first times that the Council of State applies the new provisions on endorsements to concessions; on the other hand, it affirms the survival of the third-party EPR against an act of approval of the contract.