Communication of documents versus business secrecy in pre-contractual proceedings: towards better control of the judge
Council of State, October 17, 2016, Hyères-les-Palmiers Commune, n ° 400172
Ruling on a case where the municipality had refused, in the context of a procedure of pre-contractual recourse against a procedure of award of a public service delegation, to communicate certain elements to protect the industrial and commercial secret, the Council of State imposes on the judge hearing the application for interim measures to assess the proper application of business secrecy by the contracting authority and, where appropriate, to use his power of injunction.
Rule no. 1: The judge hearing the application for interim relief may not annul proceedings solely on the grounds of the administration's concealment of financial information, for reasons relating to the secrecy of business
In the present case, the municipality had concealed, in the documents sent to the judge of the pre-contractual summary, the numerical statements of documents relating to the professional and financial guarantees given by the company awarded at the stage of the application. It considered that their transmission in the context of an adversarial procedure would undermine business secrecy. The judge of the pre-contractual injunction annulled the examination procedure at the stage of the examination of the candidatures, on the ground that this single circumstance established, by itself, the insufficiency of the guarantees offered by the selected company. The Council of State sanctions this reasoning as vitiated by error of law, holding that the only circumstance that the municipality felt it incumbent, before the judge, obscure the quantified elements relating to the recipient company, in order to avoid that they are paid to the debates in the context of the adversarial procedure and that it is so carried breach of the secrecy of the case, could not, even assuming that the community's analysis had been incorrect as to the applicability of that secret in this case, be regarded as establishing, by itself, the insufficiency of the guarantees offered by the company. "
Rule 2: The judge hearing the application for interim relief must assess the validity of the administration's refusal, based on the secrecy of the case, to disclose documents and, where appropriate, to use his power of injunction
As a follow-up to the assertion of the previous principle, the Conseil d'Etat invites the judge hearing the application for interim relief to rule on whether or not the refusal of the administration to disclose certain documents or information is justified, for reasons related to industrial secrecy and commercial. If his analysis leads him to consider that the administration has made a bad application of the rules relating to the industrial and commercial secret, the Council of State affirms that it must then make use of its power of injunction to ask the documents or undisclosed information: " it is up to the judge of the pre-contractual injunction, when the industrial and commercial secret is invoked before him, and if he deems it indispensable to forge his conviction on the points in dispute, to invite the party who avails himself to him provide all necessary clarifications as to the nature of the parts being discarded and the reasons for their exclusion; that it is his responsibility, if this secret is wrongly opposed to him, to order the community to produce the exhibits in question and to draw the consequences, if any, of his abstention ".
Board of state
ECLI: FR: CECHR: 2016: 400172.20161017
Mentioned in the tables of Lebon collection
7th - 2nd rooms together
Mrs Charline Nicolas, rapporteur
Gilles Pellissier, public rapporteur
SCP LYON-CAEN, THIRIEZ; SCP ROCHETEAU, UZAN-SARANO, lawyers
Reading of Monday, October 17th, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The MLR Plage company applied to the judge of the Toulon Administrative Court for an application seeking, on the basis of the provisions of Article L. 551-1 of the Code of Administrative Justice, for the annulment, at the stage of the selection of applications, the public service delegation procedure initiated by the municipality of Hyères-les-Palmiers for the purpose of operating baths on the seaside location located 1550 boulevard de la Marine.
By an order n ° 1601234 of May 12, 2016, the judge of the Toulon administrative court has annulled the procedure of delegation of public service undertaken by the municipality of Hyères-les-Palmiers at the stage of the selection of candidatures, the deliberation the municipal council of the municipality of Hyères-les-Palmiers having attributed said public service delegation to the company Le Petit Bain as well as any decision of the commune relating to the awarding of said contract, and rejected the surplus conclusions.
1 ° Under n ° 400172, by a summary appeal, a supplementary memorial and a reply filed on May 27th, June 13th and September 22nd, 2016 at the litigation secretariat of the Council of State, the municipality of Hyères-les- Palmiers asks the Council of State:
- cancel this order;
- ruling in urgent proceedings, to reject the application of MLR Plage;
- to charge the company MLR Plage the sum of 7 000 euros under Article L. 761-1 code administrative justice.
2 ° Under n ° 400175, by a summary appeal and two complementary memories, registered on May 27th, June 13th and June 23rd, 2016 at the litigation secretariat of the Council of State, Mrs E ... D ... ask the Council State:
- cancel this order;
- ruling in urgent proceedings, to reject the application of MLR Plage;
- to charge the company MLR Plage the sum of 3 800 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the files;
- the general code of local authorities;
- the code of relations between the public and the administration;
- the code of administrative justice;
After hearing in open session:
- the report of Mrs Charline Nicolas, auditor,
- the conclusions of Mr Gilles Pellissier, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Lyon-Caen, Thiriez, lawyer of the municipality of Hyères-les-Palmiers, to the SCP Rocheteau, Uzan-Sarano, lawyer of the company MLR beach and to Céline SCP, Soltner, Texidor, Périer, Ms. D .;
- Considering that the appeals of the town of Hyères-les-Palmiers and Mrs D ..., acting on behalf of the company being formed "Le Petit Bain", are directed against the same order; whereas it is necessary to join them in order to give a decision;
- Considering that according to the article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate which he delegates, can be seized in case of failure to the obligations of publicity and implementation. the award by the contracting authorities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation, or the delegation of a public service (...) ";
- Considering that it appears from the documents in the file submitted to the judge of the Toulon Administrative Court that the municipality of Hyères-les-Palmiers has initiated a procedure for the awarding of a public service delegation for the exploitation of the baths of sea on the location of beach attendant located 1550 boulevard de la Marine; that the offer of the company Le Petit Bain was retained; that, by an order of May 12, 2016, against which the municipality of Hyères-the-Palmiers and Mrs D ... plead in cassation, the judge of the pre-contractual recourse has, at the request of the company MLR Plage, canceled this procedure from the examination phase of applications;
- Considering that according to the article L. 1411-1 of the general code of the territorial collectivities, in its then applicable drafting: "A delegation of public service is a contract by which a legal person of public right entrusts the management of a public service for which it is responsible to a public or private delegate, the remuneration of which is substantially related to the results of the operation of the service.The delegate may be responsible for constructing works or acquiring goods necessary for the service. Public service delegations of legal persons governed by public law covered by this Code are subject by the delegating authority to an advertising procedure allowing the presentation of several competing offers, under conditions laid down by a decree of the Conseil d'Etat. are particularly appreciated in the person of the partners and in view of the professional guarantees gathered in his Companies in the process of incorporation or newly created companies may be admitted to submit an offer under the same conditions as existing companies./ The committee mentioned in Article L. 1411-5 draws up the list of candidates eligible to submit an offer. after examination of their professional and financial guarantees, of their respect for the obligation of employment of disabled workers provided for in Articles L. 5212-1 to L. 5212-4 of the Labor Code and their ability to ensure continuity of service public and the equality of users before the public service ";
- Considering, in the first place, that it is for the judge of the pre-contractual summary, when is invoked before him the commercial and industrial secret, and if it considers it essential to forge his conviction on the points in dispute, to invite the party who avails himself of it to furnish him with all the necessary clarifications as to the nature of the parts which have been set aside and the reasons for their exclusion; it is incumbent on him, if this secret is wrongfully opposed to him, to order the community to produce the exhibits in question and to draw the consequences, if any, of his abstention; that, to partially annul the procedure litigious, the judge pre-contractual interim allowed the plea that the commission public service delegation should have dismissed the application of the company Le Petit Bain, on the grounds that it did not justify professional and financial guarantees required, merely stating that the figures relating to these guarantees, contained in the documents relating to the analysis of the company's application which had been transmitted to it by the municipality, had been concealed, whereas according to him, that they did not fall under the commercial or industrial secret; that, however, the only circumstance that the municipality had had duty, before the judge, obscure the quantified elements relating to the company beneficiary, to avoid that they are poured with the debates within the framework of the contradictory procedure and that thus breaching the secrecy of the case could not, even supposing that the analysis of the community had been incorrect as to the applicability of that secret in this case, be regarded as establishing, by itself, the Insufficient guarantees offered by the company; The applicants are therefore justified in maintaining that the first ground of the order under appeal is vitiated by an error of law.
- Considering, secondly, that the contested order is based on a second ground, alleging that the application of the company Le Petit Bain was irregular, in the absence of production of the power of the signatories of the bank statements; that based on such a finding, while it appeared from the documents in the file submitted to him, in particular the minutes of the meeting of February 5, 2016 of the commission of delegation of public service, and that it Moreover, it was not disputed before him, that this document had been sent by the company Le Petit Bain after the municipality had asked the candidates to provide the missing documents, the judge of the pre-contractual summary tainted his denaturing order;
- Considering that it follows from the foregoing, and without it being necessary to examine the other grounds of appeal, that the municipality of Hyères-les-Palmiers and Mrs D ... are justified in requesting the annulment of the contested order of 12 May 2016;
- Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated;
- Considering, in the first place, that it follows from the investigation that MB .., a member of the public service delegation commission and MmeC ..., municipal treasurer, were regularly summoned to the meetings of January 5th, February 5th and February 22, 2016 of the commission and that Mrs.A ..., representative of the Minister in charge of the competition, was regularly summoned to the meetings of January 5 and February 22, 2016 of this same commission; The plea alleging irregular composition of the Public Service Commission at these meetings, therefore, on the ground that certain members who did not sit on it had not been convened, can not, in any event, that be dismissed;
- Considering, secondly, that it does not result from the investigation, and in particular the extract from the minutes of the meeting of the public service delegation commission of 25 January 2016 concerning the application of the company Le Petit Bain and produced by the municipality of Hyères-les-Palmiers without occultation after authorization from the company Le Petit Bain, that the contracting authority has, in this case, made a manifest error of assessment in considering that the professional and this company were sufficient; that, consequently, the company MRL Plage is not justified to support that the candidature of the company The Petit Bain should for this reason, be rejected;
- Considering, thirdly, that the modified operating operating account submitted on March 9, 2016 by the company Le Petit Bain to the municipality of Hyères-les-Palmiers, is a constituent element of its offer, not its application; Consequently, the plea alleging that the documents relating to the financial guarantees of the successful tenderer were late because they were later than the date on which the applications were lodged must be rejected.
- Considering, fourthly, that under the provisions of Article L. 1411-5 of the General Code of Local Authorities, in its version then applicable, the commission of delegation of public service, after having opened the folds containing the offers , give an opinion on these and the authority empowered to sign the agreement then freely engage in any useful discussions with one or more companies which have submitted an offer; whereas it follows from the investigation that in this case the Commission gave a detailed opinion and indicated which, in its view, were the three most satisfactory tenders; In this way, the plea alleging the irregularity of his opinion must be rejected.
- Fifthly, it can not be usefully argued before the pre-contractual judge that the information given to the members of the deliberative assembly is insufficient before they decide on the choice of the delegatee;
- Considering, finally, that it does not result from the instruction nor that the municipality would have disregarded the criteria of selection of the offers, nor that the offer of the company Le Petit Bain would not have been in conformity with the requirements of the collectivity, in particular regarding the accessibility of the premises;
- Considering that it follows from the above that MLR Plage is not justified in requesting the cancellation of the procedure initiated by the municipality of Hyères-les-Palmiers with a view to the awarding of the contract in dispute; that its conclusions presented under Article L. 761-1 of the Code of Administrative Justice, both before the Judge of the Administrative Court of Toulon and before the Council of State, can, therefore, only be rejected ; whereas, on the other hand, in the circumstances of this case, the sum of EUR 4 500 to be paid to the municipality of MLR Plage should be charged to MLR Plage on the basis of those provisions; Hyères-les-Palmiers and to Mrs. D ... each, under the whole procedure;
Article 1: The order of May 12, 2016 of the judge of the summary of the administrative court of Toulon is canceled.
Article 2: The application of the MLR Plage company presented before the judge of the Toulon Administrative Court and its conclusions presented to the Council of State tending to the application of the provisions of Article L. 761-1 of the Code of Administrative Justice are rejected.
Article 3: The company MLR Plage will pay to the municipality of Hyères-les-Palmiers and Mrs D ... a sum of 4 500 euros each, under the provisions of Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the municipality of Hyères-les-Palmiers, the company MLR Plage and Mrs. E ... D ....