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.
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.
The commune of Fontvieille had concluded an agreement entrusting the tourist exploitation of two sites to Mrs. B ..., which was remunerated on the entry fees perceived of the public and the sale of souvenirs, postcards and books, in return for a royalty monthly. Mrs. B ... having had to face financial difficulties, she could not meet certain deadlines.
The town of Fontvieille then sent several executory titles, whose cancellation was requested by Ms. B ... It claimed that the contract binding it to the town was a public service delegation and that the fee was illegal because the convention did not justify the amount and calculation, in breach of Article L.1411-2 of the General Code of Territorial Communities. The Administrative Court of Appeal of Marseilles has accepted its request, but the Council of State censures its judgment, while recalling the criteria of qualification of a delegation of public service.
The duration of a public service delegation contract may exceed 20 years if the new investment charges justify it
TA Bordeaux, May 9, 2016, Mr. A ... F ... and others, No. 1302295
The urban community of Bordeaux, which became Bordeaux Métropole, has conceded the drinking water and sanitation service through a 30-year agreement from 1st January 1992. Several amendments have been concluded, in particular an amendment n ° 7 increasing the level of investment at the expense of the delegatee, an amendment n ° 8 providing for the replacement of the connections and defining a return indemnity for renewed connections, an amendment n. ° 9 now the initial term of the duration of the delegation beyond 20 years. One association and several individuals filed a graceful application for withdrawal, and a contentious appeal against the deliberations approving amendments 7 to 9.
Council of State, 21 September 2016, Greater Dijon Urban Community and Keolis Society, n ° 399656
Rule n ° 1: A non-candidate company whose activity is related to the object of the contract may exercise a pre-contractual summary if it has been dissuaded from applying because of breaches of the publicity and competition requirements
The Conseil d'État points out first of all that an undertaking which has not applied for a contract award procedure is nevertheless entitled to act in a pre-contractual are met :
- If, given its field of activity, it is intended to perform the contract
- If it has been dissuaded from submitting an application or an offer because of breaches of the advertising and competition requirements it invokes
In the case in point, the Greater Dijon Urban Community had launched a procedure for the award of a public service delegation for the "operation of mobility services" on its territory. Only the companies Keolis and Effia have applied. Q Park, Indigo Infra and SAGS, whose main activity is the supply of parking, have lodged a pre-contractual appeal, arguing that they were dissuaded from applying because the public service delegation was defined. Too much. The Administrative Court had simply held that these companies were entitled to apply at least for the parking part of the delegated missions, to judge that they had an interest in challenging the conclusion of the contract. The Council of State annuls the order of the General Court: by not inquiring whether the deficiencies claimed by the applicant companies were the cause of their lack of candidacy, the judge hearing the application for interim relief tainted his order with an error of law.
New rules for the award and execution of concession contracts
1- Directive 2014/23 / EU of 26 February 2014 clarified and simplified at Community level the rules applicable to works concession contracts but also to service concession contracts for the management of a public service.
2- Order No. 2016-65 of January 29, 2016 relating to the concession contract has transposed Directive 2014/23 / EU into French law and for the first time introduces a unified legal framework for these different types of contracts.
The termination, even for misconduct, of a public service delegation may result in the payment of an indemnity to the delegatee
Termination, even for lack of a public service delegation, may result in the payment of compensation to the holder.
The delegatee is entitled to obtain compensation for the undepreciated value of the return goods as a result of the termination of a public service delegation before the end of the term, regardless of the reason for the termination as well as the loss of profit. delegated activity
In the wake of its decision of 21 December 2012, Douai, the Council of State recalls that the delegate is entitled to compensation for the undepreciated value of the property of return when the public person terminates the contract before its term
The contract for the provision of televisions and means of communication in hospitals is a public service delegation
The State Council considers that the contract for making televisions and means of communication available in hospitals is a public service delegation contract
Rule n ° 1:
During a procedure for awarding a public service delegation, the contracting authority may make adaptations to the subject of the contract which it intends to conclude at the end of the negotiation when these adaptations are of limited scope. justified by the interest of the service and that they do not present, between the competing
Rule n ° 2:
The amendment which allows the delegatee, in the event that an administrative or contentious appeal against the agreement or its detachable acts has not been definitively settled during the first four years of the performance of the contract, on the one hand, to require the delegating authority to terminate by operation of law the contract, the duration of which could thus be reduced by five-sixths, on the other hand, to substantially limit the amount of new investment to which it committed excessively affects the general economy of the contract.
Termination of a public service delegation of excessive length.
An excessive public service delegation may be terminated for reasons of public interest. The guarantee of a periodic reopening of competition, the freedom of access to public service delegation contracts and the transparency of the procurement procedures is a public interest reason justifying the unilateral termination of a public service delegation. longer than the maximum provided by law.
Rule n ° 1:
A contract by which a contracting authority entrusts a company with the construction and operation of a parking lot for a period of thirty years and whose remuneration is ensured substantially by the collection of user fees is a public service delegation .
Rule n ° 2:
Contracts concluded by the delegatee with third parties for the execution of the public service delegation agreement are private law contracts. The delegate does not act as a mere agent.