Un courrier sollicitant une augmentation de rémunération n’est pas un mémoire de réclamation

A letter requesting an increase in remuneration is not a complaint

by Sébastien Palmier on 3 May 2018 | Category: Public markets
Un courrier sollicitant une augmentation de rémunération n’est pas un mémoire de réclamation Un courrier sollicitant une augmentation de rémunération n’est pas un mémoire de réclamation

EC 26 April 2018, Toulon Provence Méditerranée Agglomeration Community, n ° 407898

This judgment gives the opportunity to recall that the non-respect of the formalism of the statement of claim leads to the inadmissibility of the appeal.

As a reminder, an agglomeration community has signed a contract with a consortium for the rehabilitation of a wastewater treatment plant. In the course of execution of the contract, the said group claimed an increase in its remuneration to which the agglomeration community refused to grant. The members of the project management group then decided to appeal to the administrative court to condemn the agglomeration community to pay them the sums claimed.

The Conseil d'Etat will reject the appeal on the ground that the letter by which the members of the consortium asked for an increase in their remuneration can not be assimilated to a statement of claim within the meaning of the applicable GAC-IP. market and the relevant administrative case law. 

Reminder No. 1: The obligation to respect the formalism of the complaint

Article 40.1 of the General Terms and Conditions for Contracts for Intellectual Services (CCAG-PI) as in force on the date of conclusion of the project management contract states that: any dispute between the holder and the person responsible for the contract must be the subject of a statement of claim by the holder, which must be given to the person responsible for the contract ". As a result, any dispute between the owner and the public purchaser must be the subject, prior to any contentious proceeding, of a statement of claim on the part of the holder of the contract.

At the end of the case law, a contract holder's factum can only be regarded as a claim within the meaning of section 40.1 of the CCLS-PI if it contains the statement of a dispute and sets out precise and detailed the heads of the dispute by indicating, on the one hand, the amounts of the sums whose payment is requested and, on the other hand, the reasons for these requests, in particular the bases of calculation of the sums claimed.

In the present case, the Conseil d'Etat considers that a letter that merely proposes an increase in the remuneration provided for in the market by proposing different solutions to legally base the grant of this increase but without involving the statement of a dispute can not be regarded as a claim within the meaning of Section 40.1 CCAG-PI. In this respect, it must be deduced that too much politeness kills the procedure. We must not propose but require and threaten so that a mail can be considered as a true complaint.

Reminder No. 2: the obligation to notify the statement of claim prior to referral to the judge

Failure to comply with the formality of the complaint may have drastic consequences on the admissibility of the application since the absence of notification of a preliminary complaint strikes the contentious appeals of inadmissibility be it actions on the merits or certain summary proceedings, such as the interim injunction (CE 16 December 2009, Group 6 architectural firm, application number 326220).


Board of state
April 26, 2018
No. 407 898

  1. Considering that it emerges from the statements of the judgment under appeal that, on March 3, 2008, the intercommunal syndicate of the Toulon region for the treatment and evacuation at sea of sewage, to whose rights came the community of agglomeration Toulon Provence Méditerranée, has concluded with the companies EMTS and Envéo Engineering a project management contract for the rehabilitation of a wastewater treatment plant; that the 20 September 2010, the grouping asked an increase of the market price; that on November 30, 2010, the president of the agglomeration community Toulon Provence Méditerranée rejected this request; that, by a judgment of February 13th, 2015, the administrative court of Toulon rejected the request of the company EMTS and the company Envéo Engineering tending to the condemnation of the community of agglomeration to pay them the sum of 337 906,50 euros HT in respect of their remuneration as project manager; that by a judgment of September 12, 2016, the Administrative Court of Appeal of Marseilles annulled this judgment and condemned the community of agglomeration to pay the company Envéo Engineering, representing the group EMTS / Envéo Engineering, the sum of 405 487 , 81 euros all taxes included; that the agglomeration community appeals in cassation against this judgment;
  2. Considering that Article 40.1 of the General Terms and Conditions for Contracts for Intellectual Services (CCAG-PI) as in force on the date of conclusion of the contract: "Any dispute between the holder and the person responsible must be the subject of a statement of claim by the holder to be delivered to the person responsible for the contract. (...) "; It follows from these stipulations that the dispute between the holder and the person responsible for the market must be the subject, prior to any litigation, of a statement in claim on the part of the holder of the contract;
  3. Considering that a contract holder's factum can only be regarded as a claim within the meaning of section 40.1 of the GAC-PI if it contains a statement of a dispute and sets out in a precise and detailed manner the heads of the dispute indicating, on the one hand, the amounts of the sums whose payment is requested, and, on the other hand, the reasons for such claims, including the bases for calculating the sums claimed; that consequently, by limiting itself to note, to judge that the mail of the group of prime contractor dated September 20, 2010 was to be regarded as constituting a claim, within the meaning of this article 40.1, applicable to the market in question, and to dismiss the end of refusal of the agglomeration community based on the fact that the dispute between it and its supervisor had not been the subject, prior to the contentious proceedings, of a complaint on the part of the group, that this letter detailed the amount of the benefits which the companies sought compensation and the reasons for this request, without seeking if it included, in addition, the statement of a dispute, the court made a mistake of law ; that as a result and without it being necessary to examine the other ground of the appeal, its judgment must be annulled;

  4. Considering that it is necessary, in the circumstances of the case, to settle the case on the merits in application of the provisions of Article L. 821-2 code administrative justice;
  5. Considering that it follows from the investigation that the aforementioned letter of 20 September 2010 did not contain the statement of a dispute when the grouping proposed different solutions to legally establish the granting of an increase in his remuneration and indicated : "I remain at your disposal to discuss with you the feasibility of this solution ..."; that it can not therefore be regarded as a claim within the meaning of Article 40.1 CCAG-PI; that failure to have respected the procedure provided for in this article 40.1, company Envéo Engineering is unfounded to argue that the application for first instance of the companies members of the grouping was admissible and that it is wrong that the administrative court of Toulon rejected their request for the conviction of the agglomeration community to pay them a sum of 337 906,50 euros in respect of their remuneration as prime contractor;

  6. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that the Toulon Provence Méditerranée agglomeration community, which is not, in the present case, the party loser, the amount requested by Envéo Ingénierie; whereas, on the other hand, Envéo Ingénierie should be ordered to pay the Toulon Provence Méditerranée agglomeration community the sum of EUR 4 000 in respect of the costs incurred and not included in the costs;

 

DECIDE:

Article 1: The judgment of the administrative court of appeal of Marseille of December 12, 2016 is canceled.
Article 2: The request made by Envéo Ingénierie before the Administrative Court of Appeal of Marseille is rejected.
Article 3: Envéo Ingénierie will pay to the Toulon Provence Méditerranée agglomeration community a sum of 4,000 euros pursuant to article L. 761-1 of the administrative justice code.
Article 4: This decision will be notified to the Toulon Provence Méditerranée agglomeration community, Envéo Ingénierie and EMTS.