Cocontractants de l’administration : n’attendez pas pour contester une décision de résiliation !

Co-contractors of the administration: do not wait to dispute a termination decision!

by gmorales on 17 October 2016 | Category: Public markets
Cocontractants de l’administration : n’attendez pas pour contester une décision de résiliation ! Cocontractants de l’administration : n’attendez pas pour contester une décision de résiliation !

Administrative Court of Appeal of Marseille, October 17, 2016, FFSNW, n ° 15MA01505

The municipality of Roquebrune-sur-Argens had concluded with the French Federation of Water Ski and Wakeboard (FFSNW) an agreement occupying the public domain, which it terminated by a letter with no indication of the routes and deadlines of recourse. The FFSNW challenged this decision before the contract judge. The opportunity for the Administrative Court of Appeal of Marseilles to recall the principles of the jurisprudence "Municipality of Béziers II".

Rule n ° 1: The judge of the contract can pronounce on the decision of termination of a convention of occupation of the public domain

The Marseille Administrative Court of Appeal makes here a new application of the case-law known as "Commune of Béziers II" (CE, March 21, 2011, Municipality of Béziers, n ° 304806), within the framework of a convention of occupation of the public domain. The Court recalls indeed the recital in principle that the judge of the contract, seized by a party of a dispute relating to a measure of execution of a contract, can only, in principle, inquire whether this measure has taken place under conditions of a nature to give right to compensation; that, however, a party to an administrative contract may, having regard to the scope of such an execution measure, form before the judge of the contract a remedy of full contentious dispute contesting the validity of the termination of this contract and tending to the resumption of contractual relations ". In the present case, the municipality had notified its co-contractor, by a letter, that the agreement of occupation which bound them was null and void. The FFSNW asked the administrative court to overturn this decision. The Court recalibrates the request on the basis that this request must be regarded as challenging the validity of the termination of the contract and tending to the resumption of the contractual relations.

Rule 2: The appeal challenging the termination of the agreement must be exercised within the two-month period even if the decision does not mention the means and time limits for appeal

Here again, the Court applies the case-law "Commune de Béziers II", according to which the contracting party of the administration must exercise its appeal contesting the termination within a period of two months from the date on which it was informed of the termination measure. In the present case, the termination decision was dated 2 April 2012 and had been brought to the attention of the FFSNW on 6 April 2012, but the latter filed its appeal on 1st October 2012, almost 6 months later. In that regard, the applicant argued that the termination decision should have included an indication of the means and time-limits for appeal under the provisions of Article R.421-5 of the Code of Administrative Justice, which provides that " the time limits for appealing against an administrative decision are only opposable if they have been mentioned, as well as the legal remedies, in the notification of the decision ". As a result, the FFSNW considered that the appeal period had not started to run and that his appeal was therefore not late. The Court rejects this reasoning, holding that, since the FFSNW's appeal is a full-fledged appeal criticizing the validity of that decision and seeking the resumption of contractual relations, the decision to terminate constitutes a measure implementing the contract and not an administrative decision within the meaning of Article R. 421-1 of the Administrative Justice Code. Accordingly, the Court dismisses the FFSNW's claim as out of time.

 

CAA of MARSEILLE
No. 15MA01505
Unpublished at Lebon collection
6th room - training 3
MOUSSARON, president
Mrs Ghislaine MARKARIAN, rapporteur
THIELE, public rapporteur
CABINET FOURMEAUX ET ASSOCIES, lawyer

Reading of Monday, October 17th, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE


Full Text

Considering the following procedure:

Previous litigation procedure:

The French Federation of Water Skiing and Wakeboarding (FFSNW) has asked the Toulon administrative court to annul the decision of 2 April 2012 of the mayor of Roquebrune-sur-Argens meaning the lapse of the agreement of June 20, 1989 linking it to the commune.

By a judgment n ° 1202585 of March 13th, 2015, the administrative court of Toulon, after having reclassified the conclusions for cancellation in conclusions contesting the validity of the termination of the agreement of June 20th, 1989 and tending to the resumption of the contractual relations , rejected the request of the FFSNW.

Proceedings before the Court:

By an application registered on 13 April 2015, and two pleadings filed on 25 January 2016 and 28 April 2016, the FFSNW, represented by SELARL Cabinet Fourmeaux and Associates, acting by Me B ..., asks the Court:

  1. to annul this judgment of the administrative court of Toulon of March 13, 2015;
  2. to annul the act of 2 April 2012 signifying the lapse of the occupation agreement of 20 June 1989;
  3. to charge the municipality of Roquebrune-sur-Argens the sum of 5,000 euros pursuant to Article L. 761-1 of the Code of Administrative Justice.

She argues that:

  • that the court has not responded to the plea based on the duration of the convention under Article L. 1311-5 of the general code of local authorities;
  • the decision of 2 April 2012 should have included the indication of time limits and remedies in application of the provisions of Article R. 421-5 of the Code of Administrative Justice;
  • his request was therefore not late;
  • the contradictory procedure provided for in Article 24 of Law No 2000-321 of 12 April 2000 has not been respected; the contested measure is non-existent since no principle of administrative law allows a public person to declare an agreement inoperative;
  • the mayor of Roquebrune-sur-Argens was incompetent to pronounce the termination of the agreement of June 20, 1989;
  • the letter of 13 June 2012 does not mention a unilateral termination;
  • the unilateral termination of an emphyteutic administrative lease is impossible; - the agreement of June 20, 1989 is an emphyteutic administrative lease and escapes the rules applicable to the appeals for the termination of an agreement of occupation of the public domain;
  • it financed the equipment up to 10 %;
  • she pays the land tax;
  • the agreement of June 20, 1989 can not be an agreement of occupation of the public domain which would suppose a duration less than seventy years according to the article L. 1311-5 of the general code of the territorial collectivities;
  • the decision of 2 April 2012 is vitiated by misuse of powers.

By a statement of defense, registered on 8 October 2015, and two pleadings registered on 29 February 2016 and 11 April 2016, the municipality of Roquebrune-sur-Argens, represented by Mr A ..., asks the Court:

  1. to reject the FFSNW's motion;
  2. to charge the Federation FFSNW the sum of 3 000 euros under Article L. 761-1 code administrative justice.

She argues that:

  • the agreement in question being an agreement of occupation of the public domain and not an administrative emphyteutic lease, the claim submitted by the FFSNW before the court was late;
  • if the impugned act does not exist the request could only then be rejected;
  • this plea is inadmissible since it is new on appeal;
  • the applicant federation can not invoke the non-respect of the parallelism of the forms as soon as it is not the result of deliberation authorizing the mayor to sign the agreement in dispute;
  • the contradictory procedure provided for in the Convention has been implemented;
  • the alleged misuse of authority is not justified.

Viewed:

  • the other parts of the file.
  • the general code of local authorities;
  • the general code of ownership of public persons;
  • Law No. 88-13 of 5 January 1988;
  • the code of administrative justice.

The parties were regularly notified of the day of the hearing.

The following were heard during the public hearing:

  • Ms. Markarian's report,
  • the conclusions of Mr Thielé, public rapporteur,
  • and the observations of Mr. B ... for the FFSNW.
  1. Considering that by an agreement signed on June 20, 1989, the municipality of Roquebrune-sur-Argens has put at the disposal of the French Water Ski Federation a body of water and buildings located on its territory for a period of 99 years; that by letter of 2 April 2012, the mayor of Roquebrune-sur-Argens told the FFSNW that this convention was obsolete; that the FFSNW raises appeal appeal of the judgment of March 13, 2015 by which the administrative court of Nice rejected his request tending to the cancellation of this decision of April 2, 2012;

The lawfulness of the judgment under appeal:

  1. Considering that the FFSNW argued in a reply filed on 2 December 2013 at the registry of the Administrative Court of Toulon that the agreement in question could not constitute an agreement of occupation of the public domain since the provisions of Article L. 1311-5 of the general code of territorial collectivities imposed, in this case, the exercise of a public service mission within the communal jurisdiction and a duration of less than seventy years; that if the court was not obliged to respond to this plea if it considered it to be inoperative, it did not, however, refer to it; that the absence of mention of this means is likely to affect the regularity of the judgment attacked, which must, consequently, be canceled;
  1. Considering that it is necessary to evoke and to rule immediately on the request presented by the FFSNW before the administrative tribunal of Toulon;

The claims for annulment of the decision of 2 April 2012:

  1. Considering that according to the article 1st of the decree of June 17th, 1938 become article 134 of the decree of December 28th, 1957 bearing code of the domain taken again in article L. 2331-1 of the general code of the property of the public persons: " are brought before the administrative court disputes relating to: 1 ° authorizations or contracts involving occupation of the public domain, regardless of their form or name, granted or concluded by public persons or their dealers ";
  1. Considering that the litigation relates to the execution of the agreement of June 20, 1989 concluded between the commune of Roquebrune-sur-Argens and the FFSNW and authorizing this one to occupy the body of water and the adjoining constructions located on the territory of the common; that this dispute is connected with the execution of the contract of occupation of the public domain binding them and falls under the administrative jurisdiction;
  1. Considering that the judge of the contract, seized by a party of a dispute relating to a measure of execution of a contract, can only, in principle, inquire whether this measure has taken place under conditions of a nature to give right to compensation; that, however, a party to an administrative contract may, having regard to the scope of such an execution measure, form before the judge of the contract a remedy of full contentious dispute contesting the validity of the termination of this contract and tending to the resumption of contractual relations; that it must exercise this recourse, including if the contract in question is related to public works, within two months from the date on which it was informed of the measure of termination;
  1. Considering that the municipality of Roquebrune meant, by its decision of 2 April 2012, the object of which concerns expressly the denunciation of the agreement binding the municipality to the federation, inform the FFSNW of the lapse of the agreement of June 20, 1989 and thus put an end to the right of occupation of the dependencies of the public domain granted to the FFSNW; that the request of the FFSNW for the annulment of this decision of April 2, 2012 must be regarded as contesting the validity of the termination of this contract and tending to the resumption of the contractual relations; that since the community has the power to terminate a convention, the decision of April 2, 2012 does not have the character of a legal act non-existent to contestation of which no delay would be opposable; that this measure taken on April 2, 2012 was brought to the attention of the FFSNW on April 6, 2012 as noted by the court; that the recourse exercised against the termination of the agreement of temporary occupation of the public domain linking the municipality of Roquebrune-sur-Argens to the FFSNW being analyzed in a full litigation appeal criticizing the validity of this decision and tending the resumption of contractual relations, this termination is a measure of performance of the contract and not an administrative decision within the meaning of Article R. 421-1 code administrative justice; that consequently the provisions of Article R. 421-5 of the same Code, which make the opposability of the time-limits for appeal against a decision subject to the notification of the channels and time-limits for appeal, likewise other than those of Article 24 of the Law of 12 April 2000 can not be usefully invoked; that the request made by the FFSNW before the administrative court of Nice, on October 1, 2012, was therefore late and, consequently, inadmissible;
  1. Whereas it follows from the foregoing that the request of the FFSNW must be rejected; that consequently, its conclusions presented to the Court under Article L. 761-1 code administrative justice must be rejected; that in the circumstances of this case, the sum of 2,000 euros to be paid to the municipality of Roquebrune-sur-Argens under these provisions;

DECIDE:
Article 1: The judgment n ° 1202585 of the administrative court of Toulon of March 13th, 2015 is canceled.
Article 2: The application submitted by the FFSNW before the Toulon Administrative Court and the remainder of its appeal findings are dismissed.
Article 3: the FFSNW will pay to the municipality of Roquebrune-sur-Argens the sum of 2,000 euros under article L. 761-1 code administrative justice.
Article 4: The present judgment will be notified to the FFSNW and the municipality of Roquebrune-sur-Argens.

Deliberated at the end of the hearing of October 3, 2016, where sat:
Moussaron, president,
Mrs Steinmetz-Schies, President-Assessor,
Ms. Markarian, Senior Advisor,

Read in open court, October 17, 2016.