Clarification of the procedures for awarding a temporary concession by mutual agreement!
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.
Reminder No. 1: A contract for the exploitation of street furniture for advertising purposes can be qualified as DSP
As a reminder, Article 5 of Ordinance No. 2016-65 of 29 January 2016 on concession contracts defines service concession contracts as contracts whereby a licensing authority entrusts the management of a public service to a public service provider. economic operator, to whom is transferred the risk of operating the service in return for the right to exploit it.
In order for the contract to qualify as a service concession, the portion of the risk transferred to the concessionaire must involve real exposure to the vagaries of the market, so that any potential loss borne by the concessionaire must not be purely nominal or negligible. Operational risk exists when, under normal operating conditions, the concessionaire is not assured of amortizing the investments or costs that it has incurred related to the operation of the service.
In this case, the Council of State recalls that the contract relating to the exploitation on the public domain of the City of Paris of public or general information urban furniture of public or local nature is a service concession within the meaning of Order No. 2016-65 of 29 January 2016 on concession contracts.
This solution may seem surprising in view of the case law JC Decaux (CE Ass., November 4, 2005, n ° 247298) which seemed to have laid down the principle of the qualification of such a contract in public market and considering its characteristics and in particular its terms of remuneration excluding any risk of exploitation. The case was similar in that it referred to the classification of an agreement between JC Decaux and the municipality of Villetaneuse concerning the supply, installation and operation of street furniture in the public domain. intended to house users of the transport network and intended to support plans or municipal information information of a general nature but also advertising.
The solution is all the more surprising since it is impossible to consider that contracts for the exploitation of street furniture for advertising purposes may present any risk of exploitation since none exists. On the contrary, it is certainly the most profitable contracts that can exist ......
The Conseil d'Etat did not seem to want to take advantage of the opportunity presented to him to present the typology of the different contracts of urban furniture which are today qualified sometimes conventions of occupation of the domain public, sometimes of public contracts where, as in this case, concessions of public services .... This work of analysis will be necessary in the long term to avoid the multiplication of the litigations.
Reminder 2: Clarification of the procedures for awarding a provisional concession by mutual agreement without publicity or competitive bidding
This case is also an opportunity to specify the terms and conditions for the awarding of a temporary concession of services by mutual agreement, in other words, without publicity or competitive bidding.
A brief summary of the facts is required. In May 2016, the City of Paris launched a publicity and competitive bidding procedure with a view to awarding a service concession relating to the operation of public or general information urban furniture that supports advertising. At the end of the call for competition, unsuccessful candidates decided to appeal to the judge of the pre-contractual summary of the Administrative Court of Paris who canceled the award procedure by two orders of 21 April 2017, which were confirmed by the Council of State in September 2017.
In November 2017, the city of Paris therefore decided to award a temporary concession, without advertising or put in competition to the economic operator in place for a period running from 13 December 2017 to 13 August 2019. Once again seized by the two competitors ousted, the judge of the pre-contractual recourse decided to cancel again this new procedure of placing by orders of December 5, 2017. An appeal in cassation was then formed before the Council of State against the ordinances of the judge of interim relief. This is the purpose of the judgment of the Conseil d'Etat of February 5, 2018.
- In the first place, the Council of State begins by recalling the general conditions that allow a public purchaser to conclude a concession of OTC services without complying with the rules of publicity and competition.The High Court considers that in case of urgency resulting from the impossibility for the public purchaser, irrespective of his will, to continue to insure a public service by his co-contractor or to insure him himself, he may, where general interest in the continuity of that service, enter into a temporary new contract without first complying with the advertising and tendering rules which are normally mandatory.
In this case, the duration of the contract may not exceed that required to implement a new advertising and tendering procedure, if the public purchaser intends to continue with the performance of the service concession or, in case contrary, when it has the faculty to do it, to organize the conditions of its recovery in control or to redefine the consistency.
- Secondly, this case is an opportunity to clarify the three necessary conditions so that a service concession can be concluded by mutual agreement.
- Condition 1: a general interest linked to the need to ensure the continuity of an essential public service
The objective observation that a general interest reason consisting in the continuity of the service requires the immediate conclusion of the agreement, ie on the one hand that the public purchaser is not able to exercise the public service in question or to obtain the means to do so on its own, and that the interruption of that service for the time necessary to implement the tendering procedures would be seriously harmful. to a general interest.
Public Rapporteur Gilles Pellissier considers that this must be " exceptional situations In which the interruption of a public service is likely to bring about a particularly serious attack on a general interest.
This implies, therefore, that the public service to which the contract contributes must satisfy an essential need of the public purchaser, in the broad sense, which can not therefore suffer from any interruption, and that he has no other means of ensuring it. to conclude an agreement by mutual agreement immediately.
In practice, only public services whose continuity is necessary for the proper functioning of the administrations and the satisfaction of the essential needs of the citizens can therefore justify the award of a concession by mutual agreement. The public purchaser must therefore be able to establish that, because of the object of the service, its interruption would bring to the general interest an infringement of a particular gravity. The general interest is that of continuity of service to which the contract contributes and it must be assessed according to the consequences of its possible interruption.
- Condition 2: an emergency situation beyond the control of the public purchaser
As the Public Rapporteur points out in his conclusions, the public purchaser must not be able to rely on this possibility to repair the consequences of his own negligence in the management of his contracts. This condition represents a means of preventing any attempt by the public purchaser to prepare the emergency or even to profit from it. Example: the judicial liquidation of the contract holder could justify the use of an interim agreement the time strictly necessary for the appointment of a new holder to ensure the continuity of an essential public service to users.
- Condition n ° 3: a limited duration that can not exceed what is necessary to respect
The duration of the provisional agreement may in no case exceed that required to implement a new advertising and tendering procedure, if the public purchaser intends to continue with the performance of the service concession or, in the case of contrary, when it has the faculty to do it, to organize the conditions of its recovery in control or to redefine the consistency. Here again, the judge's control will have to be vigilant to avoid certain abuses.
CE 5 February 2018 No. 416581
IN THE NAME OF THE FRENCH PEOPLE
- Considering that the applications for stay of execution and the appeals referred to above require the same questions to be tried; whereas it is necessary to join them in order to give a decision;
- Considering that it appears from the documents of the files submitted to the judge of the interim reliefs that the city of Paris launched in May 2016 a procedure of signing of a service agreement relative to the exploitation of urban furniture of information of general character or local bearing publicity, given the deadline of 25 February 2017, extended until 31 December 2017, of the market concluded on 25 February 2007 with the company of street furniture for advertising and information (Somupi) relating to the operation of urban furniture for information and the establishment of a fleet of bicycles for the public, known as the "Vélib" market; that, by two orders of April 21, 2017, the Judge of the Court of Paris, seized by the companies Clear Channel France and Exterion Media France, canceled this first procedure of handover; that by a decision of September 18, 2017, the Council of State ruling litigation rejected the appeals against these two orders by the city of Paris and by Somupi, winner of this contract; that, by a deliberation n ° 2017 DFA 86, the council of Paris, at its meetings of 20, 21 and 22 November 2017, approved the attribution without publicity nor put in competition of a project of contract of concession of service Provisional Agreement for the operation of public or general information urban furniture bearing advertising at Somupi for a period running from 13 December 2017 to 13 August 2019; that, by two orders of 5 December 2017 identical, the judge pre-contractual summary of the administrative court of Paris, seized by the companies Clear Channel France and Exterion Media France, however canceled the same procedure of issue of this provisional concession on the grounds that none of the conditions which could lead to the provisional conclusion of a service concession contract without first complying with the prescribed advertising rules was fulfilled; that the city of Paris and Somupi appeal in cassation against these two ordinances; that the city of Paris furthermore requests that the Council of State order that it be suspended;
On the appeals:
As regards the admissibility of applications for interim measures:
- Considering that under the terms of Article L. 551-10 of the Code of Administrative Justice: "The persons entitled to initiate the remedies provided for in Articles L. 551-1 and L. 551-5 are those who have an interest in concluding the contract (...) and which are likely to be damaged by the breach invoked (...) "; that any person is admissible to act, on the basis of the article L. 551-1 of the code of administrative justice, when it is vocation, taking into account its field of activity, to execute the contract, including when it has not submitted an application or an offer if it has been dissuaded by the breach of the advertising and competition requirements it invokes; that in the present case, after having found that the companies Clear Channel France and Exterion Media France, whose particular activity is the supply and the exploitation of urban furniture of information, took advantage of the failure resulting from the designation by the city of Paris of his concessionaire without publicity nor put in competition, the judge of the recourse made did not commit error of law nor error of legal qualification of the facts by dismissing the end of non-receipt opposed by the city of Paris and the Somupi drawn from what the applicant companies did not justify an interest in bringing proceedings on the ground that they had not been materially able to put in place the urban information furniture within the time limits required by the city of Paris; Nor did he further taint his orders of contradiction of reasons or error of law in holding that the objection of inadmissibility, in view of the ground relied upon, was in fact related to the merits of the applications;
With regard to the awarding of a temporary concession:
- Considering that in case of urgency resulting from the impossibility in which the public person, irrespective of his will, is to continue to insure the service by his co-contractor or to insure him / herself, it may, when 'requires a general interest reason relating to the continuity of the public service to provisionally conclude a new service concession contract without first complying with the prescribed advertising rules; that the duration of this contract can not exceed that required to implement a procedure of advertising and of competition, if the public person intends to continue the execution of the concession of service or, if it is not, when it has the ability to do so, to organize the conditions of its recovery in control or to redefine the consistency;
- Considering, firstly, that the statements in the orders under appeal show that, if, according to the statement of reasons for the Paris Board's decision referred to in point 2 and approving the signing of a provisional service concession, the reason for the general interest justifying the signing of such a provisional agreement was the need to avoid a break in the continuity of the public public information service, the city also raised its concerns about the risk of loss of royalties collected under of the disputed agreement to establish the general interest ordering to ensure the service of exploitation of street furniture after January 1, 2018; that, however, the reason of general interest allowing, by way of derogation, to conclude a provisional contract under the conditions mentioned in the preceding point must be due to the requirements of continuity of the public service; that, therefore, by refusing to take into account the financial interests advanced by the city of Paris and appreciating the effects of an interruption of the information service on street furniture on the only continuity of the public service of the municipal information in order to assess the existence of a public interest ground of such a nature as to enable the city to award the provisional contract in dispute without publicity or competitive bidding, the judge hearing the application for interim relief, whose orders are sufficiently reasoned on that point and are free from contradiction of motives, have not committed an error of law;
- Considering, secondly, that the President of the Court of First Instance pointed out, in his orders which are sufficiently reasoned on this point, the great diversity of the means of communication, by electronic means or in the form of posters or magazines, available to the city of Paris and deemed them sufficient to ensure the continuity of the public service of municipal information in the event of interruption of the service of exploitation of the urban furniture of information; that he deduced that no reason of general interest required to continue to provide this service by the Somupi after December 31, 2017; that in so ruling, in view of his sovereign appreciations devoid of denaturing, the judge of interim relief has committed no mistake of law or error on the legal qualification of the facts thus noted;
- Considering, moreover, that in considering that the urgency of the situation in which the city of Paris was at the end of 2017 was not beyond its control since it had not initiated a new procurement procedure in November 2017, when the cancellation of the initial award procedure was made by two orders of 21 April precedent, without having taken, beforehand, any other measure to ensure the continuity of the street furniture operating service on 1 January 2018, the judge hearing the application for interim measures focused on the facts of the case a sovereign assessment without denaturing, did not err in law and tainted his orders or lack of motivation or contradiction of reasons;
With regard to the application of the decree of 1 February 2016:
- Considering that under the terms of article 11 of the decree of February 1st, 2016 relating to the concession contracts: "The concession contracts can be concluded without publicity nor put in competition beforehand in the following cases: / 1 ° The concession contract can not to be entrusted to a specific economic operator for technical, artistic or protection reasons of exclusive rights (...) "
- Considering that it emerges from the statements of the contested orders that the city of Paris has, in the alternative, availed itself of the possibility of awarding the concession to Somupi without a call for competition in application of the aforementioned provisions of 1 ° of the Article 11 of the Decree of 1 February 2016; that the judge hearing the application for interim relief considered that the conditions laid down by those provisions were not fulfilled in this case;
- Considering, on the one hand, that, contrary to the contentions of the City of Paris and Somupi, the plea that the city had not established that this concession could be attributed only to Somupi was raised in the summary filings of Clear Channel France and Exterion Media France;
- Considering, on the other hand, that in holding that it was for the city of Paris to establish that only Somupi could be entrusted with the provisional concession in dispute for technical reasons and in assessing, by an assessment free of denaturation , that it did not establish it in this case, failing to produce the analysis of the market which it prevailed, the judge of interim relief did not make mistake of law;
- Whereas it follows from all the foregoing, without there being any need to examine the merits of the ground taken by the President of the Court of First Instance and alleging excessive length of the provisional contract, that the city of Paris and Somupi are unfounded to seek the annulment of the orders they attack;
On the requests for suspension of execution of the orders under appeal:
- Considering that under the terms of Article L. 551-4 of the Code of Administrative Justice: "The contract can not be signed from the referral to the administrative court and until notification to the contracting authority of the jurisdictional decision"; that according to the article R. 821-5 of the same code: "The formation of judgment can, at the request of the author of the appeal, order that it is repressed to the execution of a jurisdictional decision rendered as a last resort if this decision is likely to lead to consequences that are difficult to repair and if the grounds relied on appear, in the state of the investigation, serious and likely to justify, in addition to the annulment of the final court decision, the reversal of the solution retained by the judges of the merits. (...) ";
- Considering that, by the present decision, the Council of State pronounced on the appeals formed by the city of Paris and Somupi against the orders of December 5, 2017 of the judge of the pre-contractual summary of the administrative court of Paris; that, consequently, the conclusions of the city for the purpose of suspending these orders have become moot;
The conclusions presented under Articles L. 761-1 of the Administrative Justice Code:
- Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to Clear Channel France and Exterion Media France, which are not, in the this proceeding, the losing parties; whereas, on the other hand, in the circumstances of this case, the sum of EUR 2,500 must be borne by the City of Paris and Somupi each, to be paid, on the Clear Channel France and, on the other hand, to Exterion Media France, under the same provisions;
Article 1: The appeals 416579, 416585, 416640 and 416711 of the city of Paris and the company Somupi are rejected.
Article 2: It is not necessary to rule on the conclusions of the requests n ° 416581 and n ° 416641 of the city of Paris.
Article 3: The City of Paris and the company of street furniture for advertising and information will each pay a sum of 2 500 euros, on the one hand, to the company Clear Channel France and, on the other hand, to society Exterion Media France.
Article 4: This decision will be notified to the City of Paris, the public furniture company for advertising and information, the company Clear Channel France and the company Exterion Media France.