Contestation du décompte général : la saisine du juge du référé du référé provision vaut réclamation portée devant le tribunal administratif compétent au sens du CCAG-Travaux

Contestation of the general count: the referral of the judge to the interim relief court is a claim brought before the competent administrative tribunal within the meaning of the CCAG-Travaux

by gmorales on 1 March 2017 | Category: Public markets
Contestation du décompte général : la saisine du juge du référé du référé provision vaut réclamation portée devant le tribunal administratif compétent au sens du CCAG-Travaux Contestation du décompte général : la saisine du juge du référé du référé provision vaut réclamation portée devant le tribunal administratif compétent au sens du CCAG-Travaux

Contestation du décompte général : la saisine du juge du référé du référé provision vaut réclamation portée devant le tribunal administratif compétent au sens du CCAG-Travaux

CE 27 January 2017, STAC, req.no. 396404

Rule n ° 1:
The general statement of the market can be contested within 6 months by a provisional

STAC challenged the late nature of its complaint, which had been retained by the appeal judge to dismiss his complaint. Recall that under the CCAG works, the company has 6 months to challenge before the administrative court the express decision rejection of the owner of claims against the general market count, from the notification of this decision. Beyond this period, the company is deemed to have accepted it, any claim becoming inadmissible. This period of 6 months is suspended in case of referral to the Advisory Committee for Amicable Settlement.

In this case, the complaint of the STAC against the general count was rejected on April 29, 2011; she applied to the judge for interim relief on 7 June 2011, and then lodged an appeal on 16 October 2013. The latter having been filed well after the 6-month period, the request for a could the delay be taken into account?

The trial judge found that she had interrupted the 6-month time limit, whereas the only reason for the CCAG's interruption of work was referral to the Advisory Committee on Settlement.

The Administrative Court of Appeal censured this reasoning by holding that the referral to the judge hearing the application for interim relief had not been able to interrupt the 6-month time limit and that the action on the merits had been introduced well after its expiry, rendering the application inadmissible.

The Council of State censures, in turn, this reasoning. Based on article R.541-1 of the Code of Administrative Justice governing the interim relief, he noted that the request for provision and the action on the merits were independent and that the holder of the contract can obtain such a provision without having seized the judge of the contract at the bottom. The Conseil d'Etat concludes that the competent administrative tribunal referred to by the CCAG can be seized via a simple summary and not necessarily an action on the merits.

What you must remember :
For the Council of State, the referral of the judge of the interim relief provision is a claim brought before the competent administrative tribunal within the meaning of the CCAG-Travaux

Rule n ° 2:
After an interim injunction introduced within 6 months, the action on the merits beyond this deadline is admissible but does not allow to present new conclusions

The solution adopted by the Council of State raises the question of the link between the interim relief and the claim on the merits, in the case where these two types of action are successively committed. If an application for a fee has been lodged within the six-month period, but a substantive action has been taken after the expiry of the six-month period, must the first claim be admissible but not the second ?

If the Council of State does not answer this question, the public protractor clarifies, considering that the only solution seems to be to look at these two remedies, which are certainly independent in the code, as bound for the application of the provisions of the CCLS [...]. The recourse to the fund formed after an interim injunction must thus be regarded as pursuing the claim initially filed in summary proceedings. As a result, the contractor will not be able to broaden the scope of his claim. New findings are inadmissible because they are presented for the first time beyond the 6 months deadline. On the other hand, if they are submitted within the 6-month period, they will always be admissible, since the interim relief has no impact on a claim submitted within the contractual period.


Two hypotheses:

  • Hypothesis 1:
    Following an express rejection decision, the contract holder contests the rejection via an interim injunction before the competent court within 6 months. Within this same period, the holder of the contract introduces an action on the merits to extend the scope of his dispute. All findings will be considered admissible as they will be brought before the appropriate administrative tribunal within the 6-month timeframe provided by CCLS-Works
  • Hypothesis 2:
    Following an express rejection decision, the contract holder contests the rejection via an interim injunction before the competent court within 6 months. After the expiry of this period, the holder of the contract decides to bring an action on the merits. Only the findings related to the application for the provision will be considered admissible, the new findings being considered as late.

Board of state
N ° 396404
7th - 2nd rooms together
Ms Sophie Roussel, rapporteur
Gilles Pellissier, public rapporteur
BALAT; SCP MONOD, COLIN, STOCLET, lawyers

Reading of the Friday, January 27, 2017

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The Tahitian society of construction (STAC) asked the Administrative Court of French Polynesia to condemn the establishment of development and development, whose rights came from the Public Establishment Tahiti Nui Planning and Development, to pay him the sum of 273 099 046 F CFP in settlement of the balance of the works contract relating to the lot n ° 12-2 "soft floor coatings" concluded for the construction of the hospital center of Taaone.

By a judgment n ° 1300557 of July 15, 2014, the administrative court of French Polynesia fixed the balance of this market to 16 072 263 F CFP and sentenced the Public Establishment Tahiti Nui Planning and Development to pay the STAC the interests at the legal rate plus two points on this amount, from April 30, 2011 until the effective payment thereof. The court rejected the surplus of the company's findings.

In a judgment no. 14PA04342 of October 26, 2015, the Paris Administrative Court of Appeal rejected the appeal of the company against the judgment of July 15, 2014 of the Administrative Court of French Polynesia.

By a summary appeal, a supplementary memorial and a reply, registered on 26 January, 26 April and 14 November 2016 at the litigation secretariat of the Conseil d'Etat, STAC asks the Conseil d'Etat to:

1 °) to annul this judgment insofar as it considers inadmissible its request of first instance in that it contested the general count which had been notified to him;

2 °) regulating to this extent the case on the merits, to grant his appeal;

3 °) to charge the Public Establishment Tahiti Nui Aménagement et Développement the sum of 6 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

- the organic law n ° 2004-192 of the modified February 27th, 2004, together the law n ° 2004-193 of February 27th, 2004;

- the deliberation n ° 84-20 of March 1st, 1984 bearing the code of the public markets of any nature passed in the name of French Polynesia and its public establishments;

- the code of administrative justice;

After hearing in open session:

- the report of Mrs. Sophie Roussel, master of petitions,

- the conclusions of Mr Gilles Pellissier, public rapporteur.

The word having been given, before and after the conclusions, to the SCP Monod, Colin, Stoclet, lawyer of the company Tahitienne of construction and to Me Balat, lawyer of the Public Establishment Tahiti Nui Planning and Development.

  1. Considering that it emerges from the statements in the judgment under appeal that, by a works contract concluded on 18 April 2006, the Tahitian construction company (STAC) was entrusted by the Planning and Development Institution, acting as the delegated contracting authority of French Polynesia, the execution of Lot No 12-2 relating to resilient floor coverings in connection with the construction of the Taaone Hospital Center; STAC has submitted to the delegated contracting authority a complaint contesting the general account of this contract; that this claim was rejected on April 29, 2011; that the company seized, on June 7 following, the judge of the summary of the administrative tribunal of French Polynesia in order to obtain the payment of a provision; that it then seized, on October 16, 2013, the administrative court of a recourse to the bottom tending to the condemnation of the Establishment of development and development, to whose rights comes the Public Establishment Tahiti Nui Planning and Development, to pay him the sum of 273,099,046 F CFP, with interest as of 22 November 2010; that by a judgment of July 15, 2014, the administrative court of French Polynesia fixed the balance of the market at 16 072 263 F CFP and rejected the surplus conclusions of the company; that by a judgment of October 26, 2015, the Administrative Court of Appeal of Paris rejected the appeal formed by the STAC against this judgment; that the company appeals in cassation against this judgment as it considers inadmissible its contestation of the general count which was notified to him;
  1. Considering, on the one hand, that under Article 7.2.3. of the General Conditions of Contract (CCAG) applicable to the contested contract: "If, within six months of notification to the contractor of the decision taken in accordance with Article 7.2.2. the General Contract Statement has been submitted, the Contractor has not lodged his claims with the competent administrative court, he is considered to have accepted the said decision and any complaint is inadmissible / However, the six-month period is suspended. in case of referral to the advisory committee of amicable settlement under the conditions of 1 of the article 7.2.4 ";
  1. Considering, on the other hand, that under Article R. 541-1 of the Code of Administrative Justice: "The judge hearing the application for interim relief may, even in the absence of a claim on the merits, grant a provision to the creditor who has seized it when the existence of the obligation is not seriously questionable.It may, even automatically, make the payment of the provision conditional on the lodging of a security. "
  2.  Considering that it follows from these latter provisions that the holder of the contract can obtain from the judge of interim relief that he orders to the contracting authority the payment of a provisional indemnity and that he is not obliged to seize, on the other hand, the judge of the contract of a claim on the merits; that, under these conditions, the seisin of the judge of interim relief on the basis of articles R. 541-1 and following of the code of administrative justice must be regarded as the seisin of the administrative tribunal competent within the meaning of article 7.2.3. the CCLS cited in point 2;

  1. Considering that to judge late, and therefore inadmissible, STAC's appeal against the decision taken by the public institution on its claim relating to the general statement, the Paris Administrative Court of Appeal found that the request for a provision presented by this company to the judge of the summary of the administrative tribunal of French Polynesia on June 7, 2011 could not be regarded as the referral to the administrative court competent within the meaning of the provisions of Article 7.2.3. from CCAG quoted above; it follows from the foregoing that in so ruling, the court erred in law;
  1. Considering that the STAC is then entitled to request the annulment of the judgment that it attacks in so far as it considers inadmissible its contestation of the general statement which has been notified to it;
  1. Considering that it is appropriate, in the circumstances of the case, to charge the Public Establishment Tahiti Nui Planning and Development the sum of 3 000 euros to be paid to the STAC on the basis of Article L 761-1 of the Administrative Justice Code; whereas these provisions, on the other hand, prevent an amount from being charged to that company which is not, in the present proceedings, the losing party;

DECIDE:

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Article 1: The judgment of 26 October 2015 of the Administrative Court of Appeal of Paris is canceled in so far as it considers inadmissible the challenge by the company Tahitian construction of the general count that has been notified.
Article 2: The case is referred to this extent to the Paris Administrative Court of Appeal.
Article 3: The Public Establishment Tahiti Nui Planning and Development will pay the STAC a sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 4: The conclusions presented by the Public Establishment Tahiti Nui Planning and Development under Article L. 761-1 code administrative justice are rejected.