Street furniture contract: public contract or service concession?
Order No. 2015-65 of 29 January 2016 now allows certain contracts for street furniture to be attached to the category of service concessions and to abandon the systematic categorization of a public contract which essentially stemmed from a desire to submit to the rules of advertising and placing in competition those contracts which could not, if they do not relate to a public service, be subject to the rules applicable to public service delegations.
In its judgment of 25 May 2018, Sté Philippe Védiaud Publicité, n ° 416825, the Council of State provides useful information on the criterion of the real risk of exploitation which, under the new rules, allows to determine whether a street furniture contract should be classified as a public contract or a service concession. The economic balance of the contract thus determines the qualification of the street furniture contract.
To qualify as a concession, the right to use devolved by the street furniture contract must involve an economic exploitation risk.
The main feature of a service concession which consists of the exploitation right involves the transfer to the concessionaire of an economic exploitation risk. This operating risk exists only if the economic operator can not find it impossible to amortize the investments made and the costs incurred under operating conditions of the contract.
Recitals 18 and 19 of Directive 2014/23 / EU of 26 February 2014 on the awarding of concession contracts recall that the risk may sometimes be limited but must remain real and specify that the application of specific rules governing the award of concessions would not be justified if the public purchaser avoided to the economic operator any risk of loss, by guaranteeing him a minimum income greater than or equal to the investments made and the costs he must bear in the performance of the contract. In a judgment of 10 March 2011, the Court of Justice of the European Union had already stated that the risk of economic exposure of the service must be understood as the risk of exposure to the vagaries of the market "(CJEU March 10, 2011, Aff. C-274-09)
Article 5 of Ordinance No. 2016-65 of 29 January 2016 transposing Directive 2014/23 / EU insists on this concept of exploitation risk since it makes it a determining factor for the qualification of a service concession: " Concession contracts are contracts concluded in writing, whereby one or more licensing authorities subject to this order entrust the execution of works or the management of a service to one or more economic operators, to whom a risk is transferred. the operation of the work or service, in return for either the right to operate the work or service which is the subject of the contract, or the right with a price ". The transfer of risk becomes a characteristic feature of the concession contract.
The qualification of concession therefore implies the existence of a real risk related to the operation of the service and that this risk is well transferred to the economic operator and not supported by the public purchaser. On the other hand, it does not contain any precision as to the importance of this risk.
The determination of the operating risk that qualifies a street furniture contract as a public contract or a service concession.
Article 5 of Ordinance No. 2016-65 of 29 January 2016 simply states that the risk portion transferred to the concessionaire real exposure to the vagaries of the market ", So any potential loss borne by the dealer should not be purely nominal or negligible.
The concessionaire assumes the operating risk when, under normal operating conditions, there is no assurance of amortizing the investments or costs that it has incurred related to the operation of the structure or service .
Under the old regulations, administrative case law has already had the opportunity to clarify that risk can be considered as real if the remuneration is substantially linked to the results of operations (CE 7 November 2008, Vendée Department, application no. 291794) and to consider in the opposite direction that, in the absence of a "real" risk of exploitation, in other words, in the absence of remuneration substantially ensured by the operating results, the contract must be considered as a public contract (EC 5 June 2009, Avenance Education and Health, n ° 298641).
As underlined by the public rapporteur Bertrand DACOSTA in this case Where an operating deficit may occur, but in the worst case scenario can only assume very modest proportions, given the review mechanism devised by the parties, the remuneration should not be regarded as substantially assured by the results. exploitation (or as being substantially related to these results since the intervention of the law of 11 December 2001). The link between the results of the operation and the remuneration can not be regarded as substantial if it plays only below a ceiling quickly reached. When the company runs the risk of incurring 30 % of an uncapped deficit, the link is substantial; it is not so in the present case, where the deficit is borne by the operator only within narrow limits. There can be no question, through the Praetorian way, to set a threshold, especially since many mechanisms can be used to neutralize or mitigate a risk. But an indication must, in our opinion, be clearly given to the communities and their partners: the contractual arrangements in which, beyond the link posted between the remuneration and the results of the operation, the operator assumes a real risk of a very limited extent ".
A concession is now a contract in which the holder takes a real financial risk. In concrete terms, the public purchaser must not exclude any risk of losses for the concessionaire through guarantee mechanisms, under penalty of requalification of the contract. The risk must remain real, which implies that the concessionaire must assume a significant part of it even if partial compensation mechanisms may possibly be provided for by the contract.
The qualification of service concession involves a requirement of "reality of risk".
A street furniture contract that does not include any operating risk compensation mechanism is a service concession
A contract for the installation, operation, maintenance and upkeep of urban furniture which provides that the policyholder provides these services free of charge in return for the collection of advertising revenue from the sale of advertisers is a service concession if it does not contain any stipulation providing for the payment of a price to its holder covering the investments or eliminating any real risk of exploitation.
For the Council of State, the remuneration of the contract by the only advertising revenue from the exploitation of street furniture makes it possible to consider that the economic operator bears a significant risk when it is exposed to hazards of any kind which may affect the volume and value of demand for street furniture by advertisers in the territory of the municipality, without any stipulation of the contract provides for the assumption, total or partial, by the municipality losses that could result.
It follows from this that this contract, whose beneficiary is transferred a risk of exploitation related to the exploitation of the furniture to install, constitutes a concession contract and not a public contract ....
This article was published on Achatpublic.com May 31, 21018: find all the news of the public order at: https://www.achatpublic.com/
Board of state
N ° 416825
Reading of Friday, May 25, 2018
IN THE NAME OF THE FRENCH PEOPLE
- Considering that it emerges from the documents of the files submitted to the judge of the pre-contractual summary of the administrative tribunal of Melun that the commune of Saint-Thibault-des-Vignes launched a procedure of conclusion of a contract of street furniture, at the end of which the contract was awarded to the company Philippe Védiaud Publicité; that following the rejection of its offer, the company Girod Médias has seized the judge pre-contractual recourse of an application tending to the cancellation of this procedure; that, by an order of December 11, 2017, against which the company Philippe Védiaud Publicité and the commune of Saint-Thibault-des-Vignes make a plea in cassation, the judge of the interim dismissed the procedure; that the two appeals should be joined to rule by a single decision;
- Considering that under Article 5 of the Ordinance of 29 January 2016 on concession contracts: "Concession contracts are the contracts concluded in writing, by which one or more licensing authorities subject to this order entrust the performance of works or the 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 subject of the contract, that is to say, the right with a price. / The share of risk transferred to the dealer implies real exposure to the vagaries of the market, so that any potential loss borne by the dealer must not be purely nominal or negligible. The concessionaire assumes the operating risk when, under normal operating conditions, there is no assurance of amortizing the investments or costs that it has incurred related to the operation of the structure or service "
- Considering that the judge of the pre-contractual summary of the administrative court of Melun noted, on the one hand, that the contract litigious had for object the installation, the operation, the maintenance and the maintenance of urban furniture intended in particular for the information municipal, on the other hand, that the contract holder was to provide these services free of charge and was remunerated by the revenue from the sale of space to advertisers; that, to find that this contract was a public contract and not a service concession, he confined himself to finding that he confided exclusively the exploitation of the furniture for advertising purposes to his successor, to deduce that no risk was transferred to the latter; that in so ruling, without seeking whether the company awarded the contract assumed a real risk of exploitation, he made an error of law; that, therefore, and without it being necessary to examine the other means of its appeal, the commune of Saint-Thibault-des-Vignes is justified to ask the cancellation of the order contested; that there is no longer any need to rule on the appeal of the company Philippe Védiaud Publicité;
- 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 brought by Girod Media;
Whereas it follows from the investigation that the contract in dispute, whose object and economic balance were recalled in point 3 above, contains no stipulation providing for the payment of a price to its holder; that it is exposed to hazards of any kind that may affect the volume and value of demand for street furniture by advertisers in the territory of the municipality, without any stipulation of the contract does not provide for the in charge, total or partial, by the commune of the losses which could result; that it follows from this that this contract, of which the successful tenderer is transferred a risk related to the exploitation of the works to be installed, constitutes a concession contract and not a public contract;
- Considering that it follows from what has just been said that the means drawn from the fact that the municipality of Saint-Thibault-des-Vignes failed to meet its obligations of publicity and competition by ignoring the provisions of the II de l Article 99 and II of Article 62 of the decree of 25 March 2016 on public procurement, can not be usefully raised by the company Girod Médias;
- Considering, moreover, that the means drawn from the ignorance of the provisions of the general code of the territorial collectivities relating to the transfer of the delegations of public service can only be dismissed, since the contract in question does not entrust to its recipient the management no public service;
- Considering, finally, that the plea alleging that the contract in dispute, whose duration is ten years, would have been passed in disregard of the provisions of Article 6 of the decree of 1 February 2016 relating to concession contracts, is not without any clarifications as to the impact that such a period might have on the possibility for Girod Médias to make a useful presentation of its offer;
- Considering that it follows from the foregoing that the company Girod Médias is not justified to request the cancellation of the contract award procedure; that its conclusions presented under Article L. 761-1 of the Code of Administrative Justice, both before the judge of summary of the administrative court of Melun and before the Council of State, can, therefore, only be rejected ; on the other hand, in the circumstances of this case, to charge Girod Médias, under the same provisions, the sum of € 4,500 to be paid to the municipality of Saint-Thibault -des-Vignes, for the whole procedure; that there is also no place, in the circumstances of the case, to put at the expense of the company Girod Médias the amount requested by the company Philippe Védiaud Publicité under Article L. 761-1 the administrative justice code;
Article 1: The order of 11 December 2017 of the judge of summary of the Administrative Court of Melun is canceled.
Article 2: The application submitted by the company Girod Médias before the judge of the summary of the administrative court of Melun and its conclusions presented to the Council of State under Article L. 761-1 code administrative justice are rejected.
Article 3: The company Girod Médias will pay to the commune of Saint-Thibault-des-Vignes a sum of 4,500 euros under article L. 761-1 code administrative justice.
Article 4: There is no need to rule on the appeal of the company Philippe Védiaud Publicité.
Article 5: The conclusions presented by the company Philippe Védiaud Publicité under Article L. 761-1 code administrative justice are rejected.
Article 6: This decision will be notified to the company Girod Media, the municipality of Saint-Thibault-des-Vignes and the company Philippe Védiaud Publicité.