Public service delegation or occupancy agreement? The Council of State recalls the borders ...
The commune de Fontvieille had concluded an agreement entrusting the tourist exploitation of two sites to Mrs. B ..., which was remunerated on the entry fees received from the public and the sale of souvenirs, postcards and books, in return for a monthly fee . Mrs. B ... having had to face financial difficulties, she could not meet certain deadlines.
The town of Fontvieille then sent several executory titles, whose cancellation was requested by Ms. B ... It claimed that the contract binding it to the town was a public service delegation and that the fee was illegal because the convention did not justify the amount and calculation, in breach of Article L.1411-2 of the General Code of Territorial Communities. The Administrative Court of Appeal of Marseilles has accepted its request, but the Council of State censures its judgment, while recalling the criteria of qualification of a delegation of public service.
Rule n ° 1: No public service constraints, no public service delegation
The contract entrusted Mrs. B ... with a mission to operate a site seven days a week and eleven months of the year, the other site to be open only during the school holidays. In addition, Article 1 of the agreement specified that it "is entered into as precarious and revocable" and Article 8 that it "does not constitute a right to commercial lease or a fund of commerce in that it is granted on a public property and in the field of communal cultural public service ".
The Marseilles Administrative Court of Appeal concluded that the essential purpose of the contract was to involve Ms B. ... in the execution of the cultural public service because of the historical and literary dimension of the premises and that he only took with him incidentally occupation of the public domain. For this first reason, the Court characterized the contract as a public service delegation.
The Council of State censures this reasoning. It points out that the municipality has limited itself to set the opening days and to require Ms. B ... to respect the historical and cultural sites, but has not exercised control over the amount of rights of entry, neither on the selling prices of the products sold on the sites, nor on the opening hours of the sites and did not prescribe to the buyer any obligation relating, in particular, to the organization of guided visits or activities cultural activities or the reception of particular audiences. Consequently, the Conseil d'Etat considers that the lack of involvement of the municipality in the organization of tourist exploitation of the premises does not allow to consider that the purpose of the agreement was to directly involve Ms. B ... execution of the cultural public service. It therefore censures, for this first reason, the qualification of public service delegation given by the Court to the Convention.
Rule n ° 2: The possibility for the contracting partner of the administration to revoke the agreement in a very short time is incompatible with a delegation of public service
In addition, the Council of State notes that the agreement at issue conferred on Ms. B ... the possibility of revoking it at any time, the notice period provided being very short. This other point, which had not been raised in the judgment of the Marseille Administrative Court of Appeal, led the Conseil d'Etat to consider that the agreement in question could not be described as a public service delegation. Consequently, it annuls the judgment of the Administrative Court of Marseilles because of an error of legal qualification.
Board of state
N ° 396352
ECLI: FR: CECHR: 2016: 396352.20161209
Unpublished at Lebon collection
7th - 2nd rooms together
François Lelièvre, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP WAQUET, FARGE, HAZAN; SCP LYON-CAEN, THIRIEZ, lawyers
Reading of Friday, December 9, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
Mrs A ... B ... asked the Marseille Administrative Court to annul six enforceable titles issued against her by the municipality of Fontvieille pursuant to an agreement she had entered into with it on 1 February 2010 and to discharge it from the obligation to pay the corresponding sums. By a judgment n ° 1105215 of March 18, 2013, the administrative court of Marseille rejected this request.
By a judgment n ° 13MA02242 of February 13th, 2015, the administrative court of appeal of Marseilles has, on call of MmeB ..., canceled this judgment and the executory titles emitted by the commune of Fontvieille.
In a judgment n ° 15MA01558 of November 23, 2015, the Administrative Court of Appeal of Marseille rejected the opposition filed against the judgment of February 13, 2015 by the municipality of Fontvieille.
By a summary appeal, a supplementary memorial and a reply, registered on 25 January, 25 April and 3 November 2016 at the litigation secretariat of the Conseil d'Etat, the municipality of Fontvieille asks the Conseil d'Etat:
- to annul the judgment n ° 15MA01558 of 23 November 2015 of the Administrative Court of Appeal of Marseille;
- settling the case on the merits, upholding his opposition;
- to charge Ms. B ... the sum of 5,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the general code of local authorities
- the general code of ownership of public persons;
- the code of administrative justice;
After hearing in open session:
- the report of Mr François Lelièvre, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur.
The word having been given, before and after the conclusions, to the SCP Lyon-Caen, Thiriez, lawyer of the commune of Fontvieille, and to the SCP Waquet, Farge, Hazan, lawyer of MsB ....
1. Considering that under the first paragraph of Article L. 1411-1 of the General Code of Local Authorities, in its then applicable version:
"A public service delegation is a contract by which a legal person governed by public law entrusts the management of a public service for which it is responsible to a public or private delegate, the remuneration of which is substantially related to the results of the operation of the service. . The delegatee may be responsible for constructing works or acquiring goods necessary for the service ";
2. Considering that it appears from the documents in the file submitted to the judges of the substance that, by an agreement of 1 February 2010, concluded, by virtue of Article 1, "precarious and revocable", the town of Fontvieille entrusted to Mrs. B ... "tourist exploitation" sites "Moulin de Daudet" and "Château de Montauban" for the period from 1 February to 31 December 2010, the contract may be extended by express decision "for the year 2011" ; that under the terms of article 3, Mrs. B ... ensures the opening to the public of the "Mill of Daudet 7 days on 7 and the Castle of Montauban for at least duration of the school holidays"; that under Article 4, in return for the payment of a fee of 7,500 euros monthly, Ms. B ... is paid by the entrance fees received from the public and the sale of souvenirs, postcards, books , whose prices it freely fixes; that Article 5 stipulates that the products sold on the sites can not be food or of "degrading or anachronistic nature for the image and the quality of the places"; and that under Article 8: "the agreement is terminable at any time by the taker under 3 months notice";
3. Considering that in view of the lack of involvement in the organization of the tourist exploitation of the sites in question of the municipality, which, as it appears from the documents of the file submitted to the court, was limited to fix the opening days and to require the interested party to respect the historical and cultural character of the sites for which it was to operate but did not exercise control over the amount of the entrance fees, or the selling prices of the products sold on the sites, nor on the opening hours of the sites and did not prescribe to the buyer any obligation relating, in particular, to the organization of guided tours or cultural activities or to the reception of particular audiences, that, in addition to the faculty given to the applicant to revoke the agreement at any time and to the brevity of the applicable notice, the Marseilles Administrative Court of Appeal tainted its judgment of one error of legal qualification in judging that the purpose of this contract was to directly involve Mrs. B ... in the execution of the cultural public service because of the historical and literary dimension of the premises and constituted a public service delegation; that it follows from this that the municipality of Fontvieille is founded, without it being necessary to examine the other means of its appeal, to request the cancellation of the judgment it attacks;
4. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the fact that the municipality of Fontvieille, who is not the losing party, is charged with the payment of the sums As such, asks Ms B ...; that on the other hand, it is necessary, in the circumstances of the case, to put at the charge of Mrs. B ... the payment of a sum of 1 500 euros with the commune of Fontvieille under the same provisions;
Article 1: The judgment of 23 November 2015 of the Administrative Court of Appeal of Marseille is annulled.
Article 2: The case is referred to the Administrative Court of Appeal of Marseille.
Article 3: Mrs. B ... will pay the sum of 1 500 euros to the town of Fontvieille under the provisions of Article L. 761-1 code administrative justice. The submissions made by Ms B ... are rejected.
Article 4: This decision will be notified to the municipality of Fontvieille and Mrs. A ... B ....