Concession of operation of airlines: the obligation to respect the main principles of the public order
Reminder No. 1: an airline operating contract can be qualified as a DSP
In that case, the Conseil d'Etat recalls that a contract for the purpose of operating an airline between a public person and an economic operator must be assimilated to a public service concession contract within the meaning of the order of 29 January 2016.
In accordance with Regulation (EC) No 1008/2008 of 24 September 2008 establishing common rules for the operation of air services in the Community, Member States may, by tender, contract the operation of air routes unprofitable to a selected provider after competitive tendering and public service obligations.
These contracts, as long as they meet the criteria laid down in Article 5 of Order No. 2016-65 of 29 January 2016 on concession contracts, must be qualified as concession contracts within the meaning of this order, then even under Article 13 they are not subject to the rules it lays down. Such contracts, if they are concluded by legal entities governed by public law and governed by the general code of local authorities (CGCT), are qualified, by the provisions of Article L. 1411-1 of the Code, of contracts public service delegation and are subject to the rules laid down in this respect by this code.
Reminder 2: Such a contract must respect the general principles of public procurement
Since they are regarded as public service concessions, these contracts must therefore respect the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures, general principles of the law of public order.
The Council of State draws the logical consequence that to ensure compliance with these principles, the public person must provide candidates for the award of such a contract, before the filing of their offers, as provided for elsewhere Article 17 (5) of Regulation (EC) of 24 September 2008, all relevant information and / or documents, which must necessarily include information on the selection criteria for the tenders.
Reading of Friday, December 15th, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Twin Jet has asked the judge of the administrative court of Rennes, on the basis of Article L. 551-1 of the code of administrative justice, to cancel the procedure of handing over, by the joint union of the airport from Lannion - Côte de Granit, the contract to operate the air link between Lannion and Paris-Orly airports.
By order no. 1702973 of 24 July 2017, the judge hearing the application for interim relief granted this request.
By a summary appeal and a complementary memorandum, registered on August 8th and 22nd, 2017 at the litigation secretariat of the Conseil d'Etat, the mixed union of Lannion - Côte de Granit airport asks the Conseil d'Etat:
1 °) to cancel this order;
2 °) settling the case under the interlocutory proceedings, to reject the application of the company Twin Jet;
3 °) to charge the company Twin Jet the sum of 4 500 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- Considering that it emerges from the statements in the order under appeal that the Lannion - Côte de Granit airport joint syndicate initiated on the basis of Regulation (EC) of 24 September 2008 establishing common rules for the operation of air services in the Community and the decree of 16 May 2005 on the rules for the award by the State of financial compensation to air carriers and airport operators for their missions relating to the rescue and fight against aircraft fires , safety, the fight against the bird hazard and measures carried out in the context of environmental controls, an award procedure with a view to concluding an agreement between the State, the mixed trade union and the selected airline having exclusively for the purpose of operating the air link between Lannion and Paris (Orly) and providing compensation paid by the State in return for compliance with s public service obligations on this line; that, by the order contested, the judge of the pre-contractual recourse of the administrative tribunal of Rennes, seized by the company Twin Jet and ruling in application of the article L. 551-1 of the code of administrative justice, canceled this procedure;
On the jurisdiction of the pre-contractual judge of interim relief:
- 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, on the one hand, that according to the article L. 1411-1 of the general code of the territorial collectivities: "A delegation of public service is a concession contract within the meaning of the order n ° 2016-65 of the 29 January 2016 on concession contracts (...) "; that under the terms of article 5 of the order of January 29th, 2016 relative to the concession contracts: "The contracts of concession are the contracts concluded in writing, by which one or more authorities concedests subjected to the present order entrust the performance of works or management of a service to one or more economic operators, to whom is transferred a risk related to the operation of the work or the service, in return for the right to exploit the work or the service which is the object of the contract, that is to say of this right with a price ";
- Whereas, on the other hand, pursuant to Article 16 of Regulation (EC) of 24 September 2008 establishing common rules for the operation of air services in the Community: "1. A Member State may (.. .) after informing the Commission (...) of imposing a public service obligation for scheduled air services (...) on a low-speed connection to an airport on its territory, if that link is considered vital for the economic and social development of the region served by the airport (...) / 9. (...) if no Community air carrier has begun or can demonstrate that it is on the long-term scheduled air services on a route, in accordance with the public service obligation imposed on that route, the Member State concerned may limit the access of scheduled air services on that route to a single air carrier Community for a period of up to four years, at the end of which the situation shall be reviewed (...) / 10. The right to operate the services referred to in paragraph 9 shall be granted following a call for tenders in accordance with Article 17, either for a single route, or, in cases where reasons of operational efficiency so justify, for a group of routes, to any Community air carrier authorized to operate such air services (...) ";
- Whereas, in accordance with the provisions of Regulation (EC) of 24 September 2008, Member States may, by tender, contract the operation of unprofitable air links to a selected service provider after competitive bidding and public service obligations; these contracts, as long as they meet the criteria laid down in Article 5 of the Ordinance of 29 January 2016, are concession contracts within the meaning of this Ordinance, even though by virtue of Article 13, the air transport service concession contracts are not subject to the rules it lays down; that such contracts, when they are concluded by legal entities of public law falling under the general code of the local authorities, are qualified, by the provisions of Article L. 1411-1 of this code, of contracts of delegation of service public and are subject to the rules laid down in this respect by this code;
- Considering that the documents in the file submitted to the judge hearing the application for interim relief show that the agreement at issue entrusts to his co-contractor the exploitation, at his risk, of an airline in compliance with public service obligations; that, consequently, the joint union of the airport of Lannion - Coast granite is not founded to support that the judge of the pre-contractual recourse of the administrative court of Rennes would have made an error of law by qualifying the agreement in question, which fills the aforementioned criteria of Article 5 of the order of 29 January 2016, of public service delegation and deducing that the challenge of its award fell within its competence;
- Considering that the circumstance, relied on by the Lannion-Côte de Granit airport joint syndicate, that the air transport service concession contracts subject to Regulation (EC) of 24 September 2008 are likely, where appropriate, to give State aid and that they are concluded on a temporary basis, does not affect the qualification and competence of the judge hearing the application for interim relief; that, contrary to what is supported by the mixed union and in any event, Article 8 of the decree of May 16, 2005 on the rules of attribution by the State financial compensation to air carriers, which explicitly qualifies such public service delegation contracts when the State is a party thereto, remained applicable after the entry into force of Regulation (EC) of 24 September 2008;
On the cancellation of the award procedure:
Considering, as stated above, that the contract entered into by the Lannion - Côte de Granit airport joint syndicate for the exclusive exploitation of the air link between Lannion and Paris (Orly) , is an air transport service concession contract concluded on the basis of Regulation (EC) of 24 September 2008, qualifying as a public service delegation pursuant to the combined provisions of Article 5 of the Ordinance of 29 January 2016 and Article L. 1411-1 of the General Code of Local Authorities; that this contract is consequently subject to the principles of freedom of access to the public order, of equality of treatment of the candidates and transparency of the procedures, general principles of the law of the public order; whereas, in order to ensure compliance with these principles, the public body must provide the candidates for the award of the contract, before the submission of their tenders, as provided for in Article 17 (5) of Regulation (EC) ) of 24 September 2008, all relevant information and / or documents, which must necessarily include information on the selection criteria for the tenders; that under this information, the delegator can not confine himself to recalling the provisions of paragraph 7 of Article 17 of this Regulation which provide that "the selection of the tenders submitted shall be made as soon as possible taking into account the the adequacy of the service and in particular the prices and conditions that may be offered to users and the cost of the compensation required, if any, of the Member State (s) concerned ";
Considering that by noting that neither the notice of publicity nor the file of the consultation addressed to the candidates admitted to submit an offer included, beyond the reminder of the provisions of paragraph 7 of Article 17, sufficient information specify the criteria for choosing the delegate and that these criteria were not mentioned during the negotiation phase and could not be clearly deduced from the questions raised by the mixed union, the judge of the pre-contractual a sovereign appreciation of the facts without denaturing;
- Considering that it follows from the foregoing that the joint syndicate at Lannion - Côte de Granit airport is not entitled to seek the annulment of the order under appeal;
- Considering that the provisions of Article L. 761-1 of the Administrative Justice Code preclude the fact that the company Twin Jet, which is not the losing party, is liable for the payment of the sums demanded, as such, the joint union at Lannion Airport - Côte de Granit; whereas, on the other hand, in the circumstances of this case, the joint syndicate of the Lannion - Côte de Granit airport should pay the sum of EUR 3 000 to Twin Jet under the same provisions;
Article 1: The appeal of the mixed union of the Lannion airport - Côte de Granit is rejected.
Article 2: The joint syndicate of the Lannion - Côte de Granit airport will pay the company Twin Jet a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 3: This decision shall be notified to the Lannion - Côte de Granite Airport Joint Union and Twin Jet Company.