Vignette dossier droit public

Public Law

Cabinet Palmier - Brault - Associés is a firm specialized in Public Law. The lawyers of the cabinet decipher for you the important jurisprudential news of the public right (town planning, right of the territorial collectivities, etc ....).

image_pdfimage_print
Modalités de transfert contractuel d'un contrat portant autorisation d'occuper le domaine public

Contractual transfer terms of a contract authorizing occupation of the public domain

CE 7 December 2015, Sté National Real Estate req.no.

In this case, the Council of State considers that a contract by which the owner of a dependency of the public domain entrusts the management of this dependence to a third party is not opposable to the public person to whom this property was rented to perform a public service mission without the latter having consented.

The rule is now clear: a contract by which the owner of a public domain dependence entrusts the management of this dependence to a third party is not opposable to the public person to whom this property was rented to carry out a mission of public service without the latter having consented.

Read more

Convention d'occupation du domaine public : le recours en contestation de la validité du contrat est obligatoire !

Convention of occupation of the public domain: the appeal in dispute of the validity of the contract is obligatory!

CE 2 December 2015, Ecole Centrale de Lyon, req.no. 386979
In this case, the Council of State lays down the rule according to which any third party to an agreement of occupation of the public domain and which is likely to be aggrieved in his interests in a sufficiently direct and certain way by his handover or its clauses, can to bring an action challenging the validity of the agreement before the contract judge.

Rule n ° 1: The Council of State applies the appeal in dispute of the validity of the contract to the conventions of occupation of the public domain

An unsuccessful candidate or any third party to an agreement of occupation of the public domain that is likely to be prejudiced in his interests in a sufficiently direct and certain manner by the conditions of his award or his clauses may bring an appeal in contestation of the validity of the contract shall, where appropriate, suspend suspension.
The solution made by the Council of State is logical insofar as if the "Tropic" appeal was reserved, by the notion of "competitors ousted" only administrative contracts subject to obligations of advertising and competition, the recourse "Tarn et Garonne" does not know the same limits since it targets all third parties. It is therefore logical that its scope encompasses occupancy agreements in the public domain which are administrative contracts.

Read more

La mission globale d'un contrat de partenariat ne peut pas faire l'objet d'une tranche conditionnelle

The global mission of a partnership contract can not be subject to a conditional phase

CE 29 April 2015, Union for waste recovery of Guadeloupe, n ° 386748
The overall mission of a partnership contract can not be conditional. In a judgment delivered on April 29, 2015, the Council of State recalls that a contract can not meet the legal definition of the partnership contract if it does not aim to entrust the holder with a global mission. A partnership contract may provide for conditional tranches, but these can not relate to the overall mission that characterizes this type of contract since it is not certain that they will be strengthened.

Read more

Assistant à maîtrise d'ouvrage: la prestation d'avocat ne se sous-traite pas !

Assistant to project management: the provision of lawyers does not subcontract!

Assistance to project management: outsourcing the provision of lawyers is prohibited!

Some project management assistance tasks include not only financial and technical services, but also legal services to secure decision-making by the contracting authority, whether at the project selection, launch or follow-up stage. of its implementation. However, these legal services can only be carried out by certain categories of professionals authorized by the law n ° 71-1130 of 31 December 1971 reforming certain judicial and legal professions and mainly lawyers. In a judgment dated June 20, 2014, the Administrative Court of Grenoble pronounces for the first time on the delicate question of the compatibility of the outsourcing regime with the rules of professional ethics governing the profession of lawyer.

Read more

Appréciation de la condition de complexité d'un projet justifiant le recours au contrat de partenariat

Assessment of the complexity requirement of a project justifying the use of the partnership contract

As a reminder, a partnership contract is an administrative contract by which the State, a public institution of the State (Article 1 of the amended ordinance of 17 June 2004), a local authority or a local public institution (Article L 1414-1 of the CGCT) entrusts to a third party, for a period determined by reference to the amortization period of the investments or financing terms adopted, a global mission for the purpose of constructing or transforming, maintaining, maintaining, operating or the management of works, equipment or immaterial goods necessary for the public service, as well as all or part of their financing with the exception of any participation in the capital. It may also cover all or part of the design of such works, equipment or immaterial goods as well as services that contribute to the exercise by the public person of the public service mission for which he is responsible.

Read more

La négligence d'un propriétaire à l'égard de l'abandon de déchets sur son terrain emporte la qualification de « détenteur » des déchets !

The negligence of an owner with regard to the abandonment of waste on his land carries the qualification of "holder" of waste!

CE 25 September 2013, Wattelez Company, Req. n ° 358923

The negligence of an owner with regard to the abandonment of waste on his land carries the qualification of "holder" of waste!

Rule n ° 1:

The Council of State carries out a control of legal qualification on the appreciation of the judges of the bottom as for the possible negligence or not which an owner has shown concerning the abandonment of waste on his ground

Rule n ° 2:

The "owners" of waste are the owners of land on which an operating enterprise - which was then put into liquidation - abandoned tons of used tires.

Read more

L'évaluation environnementale d'un document d'urbanisme n'a pas à contenir d'informations relatives aux projets qu'il entend autoriser

The environmental assessment of a planning document does not have to contain information about the projects it intends to authorize

CE 17 July 2013, Municipality of Ollières, Req. No. 362 022

The environmental assessment of a planning document does not have to contain information about the projects it intends to authorize

Rule to remember:

Pursuant to Article L. 121-11 of the Urban Planning Code, the environmental assessment to be completed as part of the simplified revision of a land use plan must contain the information relating to the planning document. to be modified and not those specific to future wind turbine projects in the sector created at the POS. Specifically, the simplified revision of a land-use plan - with a view to creating a wind turbine area - does not imply that the presentation report includes documents such as photo-montages allowing to appreciate the visual impact on the surrounding landscape of wind turbines whose construction is planned.

Read more

Modification du régime du contentieux des décisions de la Commission nationale d'aménagement commercial

Modification of the litigation system of the decisions of the National Commission for Commercial Development

Decree n ° 2013-730 of 13 August 2013 : the litigation of the decisions of the National Commission of commercial development will report administrative courts of appeal as from January 1, 2014

As of 1 January 2014, the administrative courts of appeal will have jurisdiction to hear disputes over the decisions of the National Commission for Commercial Development.

As of 1 January 2014, the administrative courts of appeal will have jurisdiction to hear first and last resort disputes relating to decisions made by the National Commission for Commercial Development pursuant to Article L 752-17 of the Code of Commerce , as provided by the new article R 311-3 of the Code of Administrative Justice created by Decree No. 2013-730 of 13 August 2013 amending the Code of Administrative Justice.

Read more

Urbanisme: de nouvelles règles pour le contentieux !

Urban planning: new rules for litigation!

A Order of 18 July 2013 has amended the code of town planning and the code of administrative justice to regulate the interest to act of the applicants, to prevent the malicious recourses and to modify the regime of the transactions in the cases of disclaimers.

For changes see the file of the month

Read more

Urbanisme: de nouvelles règles pour le contentieux !

Urban planning: new rules for litigation!

A working group submitted a report to the Minister of Territorial Equality and Housing on April 25, 2013 proposing reforms in urban planning litigation aimed at framing the applicants' interest in acting, preventing malicious appeals and modify the transaction regime in the event of withdrawal of recourse.

Read more