Administration behavior allowing tacit termination of the contract to be revealed
In this judgment, the Council of State specifies the cases in which a contract must be regarded as tacitly terminated when, by his behavior, the public person must be regarded as having decided to terminate, unequivocally, the contractual relations.
What you must remember :
Point n ° 1: The termination of a contract results in principle from an express decision of the contracting public entity
The termination of a public contract results in principle from an express decision of the contracting public entity.
In its judgment of 11 December 2020, the Council of State confirms this rule by first recalling in its recital no.6 the principle according to which under the general rules applicable to administrative contracts, the public contracting party can always, in order to a reason of general interest, unilaterally terminate a contract, subject to the rights to compensation of its co-contracting party (CE 2 May 1985, Distillerie de Magnac-Laval, Lebon, p.246).
As the Council of State indicates in its judgment, this rule is now codified by the Code of Public Procurement under article L 6.5 ° which indicates that “ the contracting authority may unilaterally terminate the contract under the conditions provided for in this code ". Articles L 2195-1 to L 2195-6 of the CCP for public contracts and L 3136-3 to L 3136-10 for concession contracts determine the cases in which a public buyer can terminate a public contract as well as the terms of 'compensation of the co-contracting party.
It is only as an exception to this rule of express termination that the Council of State confirms the possibility of deducing from certain behaviors of the public purchaser a decision of tacit termination to allow the co-contractor to initiate an action for recovery of the goods. contractual relations or to move definitively to something else by obtaining, if necessary, compensation (CE February 27, 2019, Department of Seine-Saint-Denis, n ° 414114).
Point n ° 2: The identification of the elements allowing to detect the decision to end the contractual relations
Two types of behavior on the part of the contracting public entity can identify a tacit termination :
- On the one hand, steps taken to meet their needs via another service provider or by other means (CE February 27, 2019, Department of Seine-Saint-Denis, n ° 414114);
- On the other hand, certain forms of non-performance of the contract such as the failure to respond to requests from the contract holder to be able to perform the contract, or the absence of measures to enable him to perform the contract (CE December 11, 2020, Sté Copra Méditerranée, req. N ° 427616).
The elements making it possible to detect the decision to terminate the contractual relations can thus result from positive behavior: steps taken by the public body to meet the needs concerned by other means or the adoption of decisions having the effect of making it impossible the continuation of the execution of the contract or to obstruct its execution or abstention behaviors: the silence kept in the face of the requests of the holder of the contract.
Considering the following:
- It emerges from the documents in the file submitted to the trial judge that the realization of the concerted development zone (ZAC) known as “Sainte-Euphémie” was entrusted to the company Euphémie, to whose rights the company Copra Méditerranée came, by an agreement concluded on February 13, 1995 with the municipality of Plan-de-Cuques. The agreement provided for the construction of 94 housing units in four successive stages. The first of the four tranches, corresponding to zone D of the program, was completed in 2000. The other three tranches, corresponding to zones A, B and C, were not completed.
- The Copra Méditerranée company has asked the Marseille administrative court to order the town of Plan-de-Cuques to compensate it for the damage it considers to have suffered as a result of the work stoppage. By a judgment of July 12, 2017, the Marseille administrative court rejected his request. In a judgment of November 26, 2018, the administrative court of appeal of Marseille rejected the appeal brought by the company Copra Méditerranée against this judgment. The applicant company appeals against this judgment insofar as it rejected its conclusions tending to engage the responsibility of the municipality, because of the termination of the development agreement.
Apart from the case where it is pronounced by the judge, the termination of an administrative contract results, in principle, from an express decision of the contracting public person. However, in the absence of a formal decision to terminate the contract taken by the contracting public body, a contract must be regarded as tacitly terminated when, by its behavior, the public body must be regarded as having unequivocally terminated, to contractual relations. The trial judges sovereignly assess, under the sole control of an error of law and a distortion of the documents in the file by the judge of cassation, the existence of a tacit termination of the contract in view of all the circumstances. of the case, in particular of the steps taken by the public body to meet the needs concerned by other means, of the period during which the public body ceased to perform the contract, taking into account its duration and its term , or the adoption of a decision of the public body which has the effect of making it impossible to continue the execution of the contract or of preventing the execution, by the co-contracting party, of its contractual obligations.
- It emerges from the statements of the judgment under appeal, on the one hand, that no development took place within the so-called “Sainte-Euphémie” ZAC after the completion, during the year 2000, of the first phase of the program, corresponding to zone D, a hydraulic study carried out after the signing of the agreement and confirmed in the 2000s by several additional studies that highlighted the existence of a risk of flooding in the municipalities of Plan-de-Cuques, Marseille and Allauch, and, on the other hand, that, on January 12, 2012, the municipality informed the company, following a request from the latter relating to the progress of the project , of "stopping the development" for the reason of general interest represented by the risk of flooding, without mentioning a prospect of resumption of work or of measures envisaged in order to remedy the risk in question. Judging, despite the contents of this letter and the length of time during which the municipality had ceased to perform the contract, that no tacit termination of the development agreement concluded with a view to carrying out the concerted development zone could not be characterized in this case, the court distorted the documents in the file submitted to it. Its judgment must, therefore, be annulled as it rules on the responsibility of the municipality due to the tacit termination of the agreement for a reason of general interest.
- In the circumstances of the case, it is necessary to settle the case on the merits to the extent of the annulment pronounced, in application of the provisions of article L. 821-2 of the code of administrative justice.
- By virtue of the general rules applicable to administrative contracts, reproduced on this point in 5 ° of Article L. 6 of the Public Order Code, the contracting public entity may always, for reasons of general interest, unilaterally terminate such contract, subject to any rights to compensation from its co-contracting party.
- Under the terms of article 3 of the development agreement concluded between the municipality of Plan-de-Cuques and the Sainte-Euphémie development company with a view to the development of the concerted development zone known as “Sainte -Euphemia ":" The development and equipment of the area may be carried out in a maximum of four stages, each of them including the public facilities of all kinds necessary for the constructions (...) ". By virtue of the stipulations of article 9 of this same agreement: »The developer and the municipality must each year, before January 31: / a) jointly decide on the program and the schedule of the works (…) / b) decide , where applicable, the launch of a new section after having stopped the program and the schedule for the work of this section; However, the program and the schedule for the work of the first tranche are annexed to this agreement (…) / The program and the execution period for the work of the other sections are given for information only and annexed to this agreement (…) "; that also under the terms of Article 14, in the wording resulting from addendum n ° 1 to the development agreement, approved by deliberation of May 21, 1996: "(…) The agreement may be resolved at the request of one of the two parties with regard to the installments not yet committed if, one year after the date fixed for the end of a tranche by the last schedule approved in application of article 9 above, it has not been adopted a program and a timetable for the next phase. (…) / However, it is expressly agreed that the delay in development for units A - B - C resulting from the technical measures to be taken to mitigate the risk described above, will not be considered as a delay attributable to the municipality. or to the developer within the meaning of the preceding provisions. In addition, the work resulting from these stages described in appendix II of the initial agreement can only be undertaken once the mentioned risk has been definitively resolved on a technical level, each of the co-contractors not being able to ask the other for anything. as such ".
- It follows from what was said above that the agreement was tacitly terminated by the municipality for a reason of general interest after the completion of the first phase of the works corresponding to zone D. If this termination is likely to open right to compensation for the benefit of the applicant, it follows from the aforementioned stipulations that due to the need for the parties to expressly agree on the continuation of the development program and the realization of the stages corresponding to zones A, B and C , and then, in any event, that the elements produced by the company do not make it possible to establish that expenditure would have been incurred for the realization of these stages, the damages invoked by the company Copra Méditerranée resulting from their non-realization, including the loss of profit, are of a purely contingent nature.
- It follows from the foregoing that the company is not justified in maintaining that it is wrong that by the contested judgment, the administrative court of Marseille rejected its conclusions tending to compensation for the damages it allegedly suffered from tacit termination of the agreement for reasons of general interest.
- The provisions of article L. 761-1 of the administrative justice code prevent a sum from being charged to the municipality of Plan-de-Cuques in this regard.
Article 1: The judgment of the administrative court of appeal of Marseille of November 26, 2018 is annulled as it rules on the responsibility of the municipality due to the tacit termination of the agreement for a reason of general interest.
Article 2: The conclusions of the request of the company Copra Méditerranée before the administrative court of Marseille for compensation for the damage it would have suffered as a result of the tacit termination of the agreement for a reason of general interest as well as those tending that a sum be charged to the municipality of Plan-de-Cuques under the provisions of article L. 761-1 of the code of administrative justice are rejected.
Article 3: This decision will be notified to the company Copra Méditerranée and to the municipality of Plan-de-Cuques.