Décision de non renouvellement d’un contrat administratif : le juge du contrat est compétent

Decision not to renew an administrative contract: the contract judge has jurisdiction

by gmorales on 12 April 2017 | Category: Public markets
Décision de non renouvellement d’un contrat administratif : le juge du contrat est compétent Décision de non renouvellement d’un contrat administratif : le juge du contrat est compétent

EC March 29, 2017, National Forest Office, No. 403257

The Prefect of Reunion and the National Forest Office (NFB) had concluded an agreement with Mrs B. allowing her to occupy a public domain outbuilding in a state forest in order to operate a restaurant establishment.
This convention expressly excluded any possibility of tacit renewal and included an explicit renewal clause. Mrs. B. requested the renewal of the agreement, in accordance with this clause. As the NFB refused to grant her leave, Ms. B applied to the Administrative Court to stay the decision not to renew the agreement and to order the resumption of the contractual relationship on a provisional basis.
The administrative court having granted this request, the NFB appealed to the Council of State. The opportunity for this one to make a reversal of jurisprudence.

Rule n ° 1: The judge of the contract is competent to judge the dispute of a decision of non renewal of a contract

In the present case, the applicant challenged the validity of a decision rejecting the request for the renewal of an administrative contract, pursuant to one of its clauses, and required the resumption of contractual relations. So it was the contract judge who was seized.
However, the Conseil d'Etat considered until now that a decision of non-renewal of an administrative contract constituted an administrative act, detachable from the contract, which could only be the object of an action in excess of power ( EC, 4 March 1981, Cne d'Azereix c / Pescadere, No. 13545: decision of a mayor refusing the renewal of a pigeon hunt concession).
In that judgment, the Conseil d'Etat made a reversal of case-law in holding that the challenge by the holder of an administrative contract of a decision rejecting the request for renewal of the contract presented in application of one of its clauses falls within the scope of judge of the contract.

Rule n ° 2: The action against the refusal of the renewal of the contract is inadmissible after the term of this one

Moreover, the applicant had lodged her application with the judge hearing the application on 1st July 2016. However, the contract expired on June 30, 2016. Consequently, the Council of State considers that this request was devoid of object from its introduction and was not admissible. He therefore quashed the order of the judge hearing the application for interim measures, which had not raised this ground of inadmissibility.

Advice to the holders of administrative contracts:

If your request to renew your contract is rejected, you can now enter the contract judge but do not wait for the end of the contract!


Board of state

N ° 403257   

8th - 3rd bedrooms together

Reading of the Wednesday, March 29, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure

Mrs A ... B ... asked the judge of the administrative court of Reunion, on the one hand, to suspend, on the basis of the article L. 521-1 of the code of administrative justice, the decision the Regional Director of the Office National des Forêts of May 24, 2016 refusing the renewal of the concession under which she was authorized to occupy land on the site of Anse des Cascades at Sainte-Rose and to operate a restaurant there and, secondly, to order the continuation of the contractual relations. By an order no. 1600771 of 24 August 2016, the judge hearing the application for interim relief granted his request by suspending the decision and ordering the resumption of the contractual relations on a provisional basis.

By a summary appeal, a supplementary brief and three new briefs, registered on 6 September, 20 September, 28 November and 21 December 2016 and 18 January 2017 to the litigation secretariat of the State Council, the National Forest Office requests the Board of state :

1 °) to cancel this order;

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

Considering the other parts of the file;

Viewed:

- the general code of ownership of public persons,

- the forest code;

- the code of administrative justice;

After hearing in open session:

- the report of Mr. Laurent Domingo, master of petitions,

- the conclusions of Mr Benoît Bohnert, public rapporteur;

The word having been given, before and after the conclusions, to the SCP of Nervo, Poupet, lawyer of the Office National Des Forets and the SCP Richard, lawyer of Mrs. B ...;

Considering the following:

  1. It appears from the documents before the judge of the Administrative Tribunal of Réunion that the Prefect of La Réunion and the Office National des Forêts, on the one hand, and MmeB ..., on the other, concluded a agreement authorizing the latter to occupy, for the period from July 1, 2007 to June 30, 2016, a land of 675 square meters located at a place called "l'Anse des Cascades" in the forest of Sainte-Rose for the purpose of exploitation a restaurant establishment. Article 4 of that convention expressly excluded any possibility of tacit renewal, while Article 5 stipulated that "any renewal must be requested by the licensee at least six months before the expiry date of the agreement. this request within the time limit is deemed to be waiver of renewal ". By a letter of 12 December 2015, Mrs. B ... requested the renewal of the agreement in execution of its article 5. On 24 May 2016, the National Forestry Office refused to grant it. Ms. B ... appealed to the Administrative Tribunal of the Meeting for annulment of this decision. It has also submitted, on the basis of Article L. 521-1 of the Code of Administrative Justice, an application seeking, on the one hand, for the suspension of that decision and, on the other hand, for the continuation of contractual relations. The National Forest Office appeals in cassation against the order of 24 August 2016 by which the judge of the administrative tribunal of Reunion, after having considered that the convention was an administrative contract considering the clauses it contained, pronounced the suspension of this decision and enjoined him to resume the contractual relations with Mrs. B ... provisionally.
  2. Ms. B's contract term was June 30, 2016. If the judge of the contract was competent to know the challenge by Mrs. B ... the validity of the refusal of the National Forestry Office to renew the conventionthe applicant's request for the suspension of the decision refusing renewal was lodged with the judge on 1 July. That request was therefore in any event devoid of purpose from the time of its submission and was therefore not admissible. In accepting the application for suspension which he had received without objecting to this inadmissibility, which was apparent from the documents submitted to him, the judge hearing the application for interim relief tainted his order of irregularity. This must be annulled without the need to examine the pleas raised by the National Forest Office in support of its appeal.
  3. According to Article L. 821-2 of the Code of Administrative Justice, the Council of State, if it pronounces the annulment of a decision of an administrative court ruling at last instance, may "settle the case basically if the interest of a good administration of justice justifies it ". In the circumstances of the case, the case must be settled under the interlocutory proceedings.
  4. It follows from what has been said above that the claims brought by Mrs B ... on the basis of Article L. 521-1 of the Code of Administrative Justice are, in any event, inadmissible and must be rejected.
  5. It is not necessary, in the circumstances of this case, to charge Mrs. B ... the sum that the National Forestry Office requests under Article L. 761 1 of the Code of administrative justice. The provisions of the same article also preclude that the sum requested in the same way by Mrs. B ... be charged to the National Forest Office, which is not, in the present case, the party loser.

DECIDE:

--------------

Article 1: Order No. 1600771 of 24 August 2016 of the judge of the Administrative Court of Reunion for summary proceedings is set aside.

Article 2: The request made by Mrs B ... before the judge of the Administrative Court of La Réunion is dismissed.

Article 3: The conclusions presented by the National Forest Office and Mrs. B ... under Article L. 761-1 code administrative justice are rejected.

Article 4: This decision will be notified to the National Forest Office and Mrs. A ... B ....