Vignette dossier délégations de service public

The Council of State decides on the new provisions relating to the modifications of concessions in progress

by gmorales on 27 January 2017 | Category: Public service delegations
Le Conseil d’Etat se prononce sur les nouvelles dispositions relatives aux modifications des concessions en cours Le Conseil d’Etat se prononce sur les nouvelles dispositions relatives aux modifications des concessions en cours

EC 23 December 2016, M. EG and M. FD and others, No. 397096

Le Conseil d’Etat se prononce sur les nouvelles dispositions relatives aux modifications des concessions en cours Some applicants have asked the State Council to annul several decrees approving amendments to concessions made between the State and companies for the concession of the construction, maintenance and operation of motorways. Some also requested the cancellation of the regulatory clauses of the concessions and specifications so approved.

The ruling in this case is interesting for two reasons: on the one hand, it is one of the first times that the Council of State applies the new provisions on endorsements to concessions; on the other hand, it affirms the survival of the third-party EPR against an act of approval of the contract.

 

Rule n ° 1: An addendum relating to additional work necessary, which can not be entrusted to another holder and not exceeding 50% of the initial contract is legal

Decree No. 2014-1341 of 6 November 2014 amended Decree No. 2010-406 of 26 April 2010 on public works concession contracts. The purpose of this amending decree was to transpose Article 43 (b) of Directive 2014/23 / EU of 26 February 2014 on amendments to current contracts.

The new article of the Decree of 26 April 2010 thus provides that concessions may be modified without new allocation procedure for the additional works or services required, subject to the dual condition that a change of concessionaire is impossible for economic or technical reasons and it would present a major drawback for the contracting authority or would entail a substantial increase in costs for it; moreover, the amount of the additional works or services can not be greater than 50 % of the amount of the initial concession contract.

In particular, the applicants argued that the clauses of the contested contracts providing for new work constituted regulatory clauses which disregarded these new provisions.

The Conseil d'Etat rejects this plea by first noting that the amount of the works in question is not more than 50% of the amount of the initial contracts. It also considers that the purpose of this work is either to respond to the risks associated with increased car traffic or to improve road safety and thus meet needs of general interest and have become necessary to ensure the safety of passengers. exploitation of concessions.

Lastly, it notes that a change of concessionaire would be impossible because of the close links between the equipment concerned and the goods and services conceded and likely to entail, for the State, a substantial increase in costs because of the compensation that would be due .

Rule n ° 2: The decree of approval of a contract can be the object of a recourse for excess of power on the part of the thirds if it is assigned a vice proper

In addition, the applicants sought the annulment of the decrees approving amendments to motorway concessions. However, in its judgment of 4 April 2014, Department of Tarn and Garonne, the Council of State had opened a direct appeal to all third parties in full legal proceedings against administrative contracts and closed the EPR against detachable acts.

In this case, as well as in another judgment of the same day also commented on our website (EC, 23 December 2016, ASSECO - CFDT and ATTAC Montpellier, No. 392815), the Council of State holds that regardless of the appeal of full jurisdiction against the administrative contract opened by the judgment Department of Tarn and Garonne, third parties are entitled to challenge before the judge of the excess of power the legality of the administrative act approving the contract. It does, however, restrict this remedy to two conditions: third parties must avail themselves of interests to which the performance of the contract is such as to bring about a direct and certain harm; they can only raise pleas alleging defects in the act of approval and not the means relating to the contract itself.

In the present case, the only way in which the applicants complain of the inherent defects in the contested decrees is that they would disregard the accessibility and intelligibility objectives of the standard, since they do not contain certain technical annexes.

The Conseil d'Etat rejects this argument by pointing out that the decrees do not present any particular difficulties of interpretation or ambiguity and that the content of the annexes can be consulted at the Ministry of Ecology, Sustainable Development and Energy. As a result, the Conseil d'Etat considers that the second condition mentioned above is not met and rejects appeals against the decrees.


Board of state
N ° 397096

7th - 2nd rooms together

  1. Marc Pichon de Vendeuil, rapporteur
  2. Olivier Henrard, public rapporteur

Reading of Friday, December 23, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedures:

1 ° Under no. 397096, by a motion and two reply briefs, registered on 18 February, 9 September and 24 November 2016 at the litigation secretariat of the Conseil d'Etat, ME..G ... and MF..D ... ask the Council of State to cancel for excesses of power the implicit decision by which the Prime Minister rejected their request for the withdrawal of the decree n ° 2015-1044 of August 21, 2015 approving endorsements to the conventions passed between l State and the Company of the Autoroutes Paris-Rhin-Rhône (APRR) and between the State and the company of Autoroutes Rhône-Alpes (AREA) for the concession of the construction, the maintenance and the operation of motorways and the specifications annexed to these conventions, together the said decree.

2 ° Under the n ° 397160, by a request, registered on February 19th, 2016 with the secretariat of the litigation of the Council of State, the commune of Grenoble asks the Council of State:

1 °) to cancel for excess of power the implicit decision by which the Prime Minister rejected his request for the withdrawal of the decree n ° 2015-1044 of August 21st, 2015 approving endorsements to the conventions passed between the State and the society of the Autoroutes Paris-Rhin-Rhône (APRR) and between the State and the company Autoroutes Rhône-Alpes (AREA) for the concession of the construction, maintenance and operation of motorways and the attached specifications to these conventions, together the said decree;

2 °) to enjoin the State to seize the judge of the contract for the purpose of resolving the riders approved by the decree of 21 August 2015;

3 °) to charge the State the sum of 3,000 euros under Article L. 761-1 code administrative justice.

By a defense, registered on July 27, 2016, the company AREA concluded the rejection of the request.

By a memoir, recorded on October 21, 2016, the municipality of Grenoble declares to abandon purely and simply its request.

By a statement of defense, filed on November 4, 2016, the Minister of Environment, Energy and the Sea, in charge of international climate relations, concluded that the request should be dismissed.

The petition was communicated to the Prime Minister and APRR, who did not produce a brief.

....................................................................................

3 ° Under the n ° 397164, by a request summary and a complementary memory, registered on February 20 and May 19, 2016 with the secretariat of the litigation of the Council of State, the Mixed Syndicate of the Public Transport of the Grenoble agglomeration (SMTCAG) asks the Council of State:

1 °) to cancel for excess of power the decree n ° 2015-1044 of August 21st, 2015 approving endorsements to the conventions passed between the State and the company of Autoroutes Paris-Rhin-Rhône (APRR) and between the State and the Autoroutes Rhône-Alpes (AREA) company for the concession of the construction, maintenance and operation of motorways and the specifications annexed to these conventions;

2 °) to charge the State the sum of 4 000 euros under Article L. 761-1 code administrative justice.

By two statements in defense, registered on July 27 and November 8, 2016, the company AREA concluded the rejection of the request.

By a defense, registered on November 7, 2016, the Minister of the Environment, Energy and the Sea, in charge of international relations on climate concluded the rejection of the request.

By a memoir, registered on November 7, 2016, the Syndicat Mixte des Transports en Commun de l'Agglomération Grenobloise declares to simply abandon its request.

The petition was communicated to the Prime Minister and APRR, who did not produce a brief.

....................................................................................

4 ° Under the n ° 397175, by a request, registered on February 22, 2016 with the secretariat of the litigation of the Council of State, MA..B ... asks the Council of State:

1 °) to cancel for excess of power the implicit decision by which the Prime Minister rejected his request for the withdrawal of the decrees n ° 2015-1044, 2015-1045 and 2015-1046 of August 21, 2015 approving amendments to the conventions between the State and the Autoroutes Paris-Rhin-Rhône (APRR) company, between the State and the Autoroutes Rhône-Alpes (AREA) company, between the State and the motorway company in the South of France ( ASF), between the State and the company of the Estérel, Côte d'Azur, Provence, Alpes (ESCOTA) highways, between the State and the financial and industrial company of the highways (COFIROUTE), between the State and the Company of the Motorways of Northern and Eastern France (SANEF) and between the State and the Société des Autoroutes Paris-Normandie (SAPN) for the concession of the construction, maintenance and operation of motorways and to the specifications annexed to these conventions, together the said decrees;

2 °) to cancel the clauses of a regulatory nature of the concessions and specifications so approved called "motorway recovery plan".

By a defense statement, registered on May 9, 2016, the company ESCOTA concluded the rejection of the request.

By a defense, registered on May 9, 2016, the company ASF concluded the rejection of the request.

By a defense, registered on May 11, 2016, the Company COFIROUTE concludes the rejection of the request.

By a defense, registered on May 13, 2016, the SANEF Company concludes the rejection of the request.

By a defense filed on May 13, 2016, SAPN Company claims that the motion will be dismissed.

By a defense, registered on June 9, 2016, the Company AREA concluded the rejection of the request.

By a statement of defense filed on June 17, 2016, the APRR Company seeks the dismissal of the motion.

By a statement of defense, registered on November 7, 2016, the Minister of Environment, Energy and the Sea, in charge of international relations on the climate concludes the rejection of the request.

By a memoire, registered on December 5, 2016, MB..déclare to abandon purely and simply its request.

The request was communicated to the Prime Minister, who did not produce a brief.

....................................................................................

5 ° Under No. 397211, by a petition and a reply, registered on 22 February and 23 June 2016 to the litigation secretariat of the State Council, the Automobile-club of lawyers, the Organization of European road hauliers , the French Federation of angry Motorcyclists (FFMC), the French Federation of Motorcycling (FFM) and MC..H ... ask the Council of State to cancel for excesses of power the implicit decision by which the Prime Minister has rejected their request for the withdrawal of Decree No. 2015-1044 of 21 August 2015 approving amendments to agreements between the State and the company Autoroutes Paris-Rhin-Rhône (APRR) and between the State and the Highway Company Rhône-Alpes (AREA) for the concession of the construction, maintenance and operation of motorways and the specifications annexed to these conventions, together the said decree.

...................................................................................

6 ° Under No. 397212, by a petition and a reply, registered on 22 February and 27 May 2016 to the litigation secretariat of the Conseil d'Etat, the Automobile-club of lawyers, the organization of European road hauliers , the French Federation of angry Motorcyclists (FFMC), the French Federation of Motorcycling (FFM) and MC..H ... ask the Council of State to cancel for excesses of power the implicit decision by which the Prime Minister has rejected their request for the withdrawal of Decree No. 2015-1045 of 21 August 2015 approving amendments to the agreements between the State and the Society of Motorways of the South of France (ASF), between the State and the Highway Company Estérel, Côte d'Azur, Provence, Alps (ESCOTA) and between the State and the Financial and Industrial Motorway Company (COFIROUTE) for the concession of the construction, maintenance and operation of highways and specifications annexed to these onventions, together the said decree.

....................................................................................

7 ° Under No. 397215, by a motion and a reply, registered on 22 February and 27 June 2016 to the litigation secretariat of the Council of State, the Automobile-club of lawyers, the organization of European road hauliers , the French Federation of angry Motorcyclists (FFMC), the French Federation of Motorcycling (FFM) and MC..H ... ask the Council of State to cancel for excesses of power the implicit decision by which the Prime Minister has rejected their request for the withdrawal of Decree No. 2015-1046 of 21 August 2015 approving amendments to agreements concluded between the State and the Northern and Eastern Motorway Company of France (SANEF) and between the State and the Société des Autoroutes Paris-Normandie (SAPN) for the concession of the construction, maintenance and operation of motorways and the specifications annexed to these conventions, together with the said decree.

....................................................................................

Considering the other parts of the files;

Viewed:

- Directive 2014/23 / EU of the European Parliament and of the Council of 26 February 2014 on the awarding of concession contracts;

- the code of the road network;

- Law No. 2015-990 of August 6, 2015;

- Law n ° 2015-992 of August 17, 2015;

- Decree No. 2009-1102 of 8 September 2009;

- Decree No. 2010-406 of 26 April 2010;

- Decree No 2013-436 of 28 May 2013;

- Decree No. 2014-1341 of 6 November 2014;

- the code of administrative justice;

After hearing in open session:

- the report of Marc Pichon de Vendeuil, master of petitions,

- the conclusions of Olivier Henrard, public rapporteur.

The word having been given, before and after the conclusions, to the SCP Spinosi, Sureau, lawyer of the Society of the Highways of the South of France and the company of the Estérel Autoroutes, Côte d'Azur, Provence, Alps.

  1. Considering that it emerges from the terms of the requests referred to above, which are directed against the three decrees of 21 August 2015 approving seven riders to the agreements concluded between the State and the motorway companies for the concession of the construction, the the maintenance and operation of motorways and the specifications annexed to these conventions, that the applicants must be regarded as asking, on the one hand, for the annulment for excess of power of these three decrees and, on the other hand, part, the annulment for excess of power of certain clauses of these agreements; whereas these applications must be joined to rule by a single decision;

On the discontinuances of the municipality of Grenoble, the Syndicat Mixte des Transports en Commun de l'Agglomeration Grenobloise, and MM. B ... and D ...:

  1. Considering that the withdrawals of the municipality of Grenoble, the Syndicat Mixte des Transports en Commun de l'Agglomération Grenobloise, MB..and MD .. are pure and simple; that nothing prevents the act from being given;

On the legal framework of disputes:

  1. Considering that under the terms of Article L. 122-4 of the Highway Code, in its wording in force at the date of adoption of the contested decisions: "The use of motorways is in principle free. it may be instituted by decree in Council of State a toll for the use of a highway to ensure the total or partial coverage of expenditures of any kind related to the construction, operation, maintenance , in the development or extension of the infrastructure / In the case of delegation of public highway services, the toll also covers the remuneration and the amortization of the capital invested by the delegatee / Works or arrangements not provided for in the specifications of the delegation may be included in the base of the delegation, subject strictly to their necessity or usefulness, as well as to their accessory character in relation to the main work. an extension of the duration of the delegation when their financing can not be covered by the reasonable increase of the toll rates, the extension of this duration as well as the increase of the tariffs being strictly limited to what is necessary. (...) / The delegation agreement and the attached specifications set out the conditions under which the delegate carries out the tasks entrusted to him by the State and in return for which he is authorized to collect tolls. These acts are approved by decree in Council of State ";
  1. Considering that, in its drafting resulting from the decree of November 6th, 2014, article 13-1 of the decree, then in force, of April 26th, 2010 relative to the contracts of concession of public works and bearing various provisions as regards public order had: "I.- Concessions may be modified without new allocation procedure for additional works or services which have become necessary and were not included in the initial concession contract, subject to the condition that a change of dealer: / 1 ° This is impossible for economic or technical reasons, in particular because of the requirements of interchangeability or interoperability with existing equipment, services or installations acquired in the context of the initial concession, or (2) to present a major drawback for the contracting authority or a substantial increase in costs / The amount of additional work or services may be greater than 50% of the original concession contract amount. Where several successive amendments are made in accordance with the provisions of this Title, this limit shall apply to the amount of each amendment ";

On the conclusions directed against certain clauses of the agreements:

  1. Considering that the provisions referred to in point 4 above, which allow, in limited cases and under the conditions they lay down, the amendment of public works concession contracts in the course of execution without a new award procedure for additional works or services which became necessary and did not appear in the initial concession contract, do not disregard the constitutional principle of free access to public procurement, equal treatment of candidates and transparency of procedures; whereas, contrary to what is contended, the purpose of transposing point b of Article 43 of Directive 2014/23 / EU of the European Parliament and of the Council of 26 February 2014 on the awarding of concession contracts , of which they reproduce almost entirely the writing; what is irrelevant in this respect the fact that the decree of 6 November 2014 entered into force before the expiry of the transposition deadline set by the directive on 18 April 2016; that, therefore, the plea, by way of exception, that certain clauses of the conventions, of a regulatory nature, would be illegal because of the illegality that would vitiate the decree of 6 November 2014 must, in any case to be discarded;
  1. Considering that if the applicants argue that clauses providing for new work, in particular for the construction of new sections of motorway, would constitute regulatory clauses, which would be in breach of the provisions cited in point 4 above, such means must, in any circumstances of cause, to be dismissed, as it appears from the documents in the files, firstly, that the work in question, the amount of which does not exceed 50% of the amount of the initial contracts, is intended either to meet to the risks associated with increased traffic, to improve road safety, to meet needs in the general interest and to become necessary for the operation of the concessions, and that a change of concessionaire would be impossible because of the close links between the equipment concerned and the goods and services conceded and likely to lead, for the State, to an increase costs because of the compensation that would be due;
  1. Whereas, moreover, if the applicants maintain that the clauses which define financial compensation, by providing for an increase in tolls for a longer period of collection, would also constitute unlawful regulatory clauses, such a means must also, in any event, therefore, on the one hand, that, contrary to what is contended, Article L. 122-4 of the Highway Code cited in point 3 above does not preclude by tolls, an increase in the state fee and, secondly, that it can not be usefully argued that new investments would be part of the normal exploitation of the concession and could not therefore make the object of compensation;
  1. Considering, finally, that the applicants can not, in any case, usefully support or that certain clauses, of a regulatory nature, would breach the scope of the law of 17 August 2015 on the energy transition for green growth, of which no provision has no direct impact on the operating conditions of motorway concessions, or that they are incompatible with the requirements of the Guidance Document and the objectives of a Territorial Coherence Scheme (SCoT) or other documents planning, urban planning or environmental conditions applicable to the geographical area where the conceded motorway extends, or that the State has failed to comply with the commitments made to the European Commission for the validation of the Plan highway revival;

On the conclusions directed against the decrees of approval:

  1. Considering that apart from the full jurisdictional remedy available to third parties to an administrative contract to contest the validity thereof, under the conditions defined by the decision of the State Council No. 358994 of 4 April 2014 ruling in the litigation, third parties who take advantage of interests to which the performance of the contract is such as to bring a direct and certain harm are admissible to challenge before the judge of the excess of power the legality of the administrative act approving the contract; However, in the context of such an appeal, they may only raise pleas alleging defects in the act of approval, and not the pleas relating to the contract itself.
  1. Considering that the only way in which the disputed decrees raised by the applicants are tainted by the inherent defects is that these decrees disregard the objectives of accessibility and intelligibility of the standard because they do not include certain technical annexes; However, it is clear from the decrees as published in the Official Journal, which do not present any particular difficulties of interpretation or ambiguity, that the content of the annexes can be consulted at the Ministry of Ecology, Sustainable Development and Sustainable Development. energy; that in this way, without having to rule on their admissibility, the conclusions directed against the decrees of approval must, in any case, be rejected;
  1. Whereas it follows from all the foregoing that the applications must be dismissed, including their conclusions for the purposes of an injunction and the submissions made under Article L. 761-1 of the Code of Administrative Justice;

DECIDE:

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  • Article 1: It is given act of discontinuance of the municipality of Grenoble, the Syndicat Mixte of Public Transport of the Grenoble agglomeration, MB..et MD ...
  • Article 2: Applications No. 397096 in so far as it emanates from MG .., 397211, 397212 and 397215 are rejected.
  • Article 3: This decision will be notified to Messrs. Vincent G ... and BenjaminD ..., to the municipality of Grenoble, to the Mixed Transport Association of the Greater Grenoble Area, to Mr. A ... B ... , the Automobile Club of Lawyers, the organization of European road transport companies, the French Federation of Angry Motorcyclists, the French Federation of Motorcycling, Mr. C ... H ..., the Highway Company Paris-Rhin-Rhône (APRR), the Autoroutes Rhône-Alpes company (AREA), the Autoroutes de la Haute-de-France (ASF), the Autoroutes Estérel, Côte d'Azur, Provence, Alpes (ESCOTA), the Financial and Industrial Motorway Company (COFIROUTE), the Northern and Eastern Motorway Company of France (SANEF), the Société des Autoroutes Paris-Normandie (SAPN) and the French Minister environment, energy and the sea, responsible for international climate relations.

Copy will be sent to the Prime Minister.