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An application for expert review does not trigger the limitation period

by gmorales on 1 March 2017 | Category: Public markets
Une demande de référé expertise ne déclenche pas le délai de prescription Une demande de référé expertise ne déclenche pas le délai de prescription

Une demande de référé expertise ne déclenche pas le délai de prescription CE 10 February 2017, Campenon Bernard Côte d'Azur and other companies, req.no. 391722

In view of the construction of a judicial city in Grasse, the Public Agency for Real Estate Justice (APIJ) has concluded with two different solidarity groups a contract for project management and a works contract. As a result of ground movements, disorders were noted, requiring work of comfort, which resulted in additional costs. The APIJ applied to the judge of an application for joint and several condemnation of the members of the project management group.

The administrative court granted this request and, ruling on the appeals as security, divided the burden of the conviction between different members of the project management group and the group of works.

The Administrative Court of Appeal has reformed the judgment by changing the distribution of the burden of the sentence. Two of the condemned companies lodged an appeal in cassation against that judgment.

The opportunity for the State Council to decide on the impact of an application for an expert review on the limitation period, as well as on the liability of construction companies and project management when a risk has been reported.

Rule n ° 1: An application for an expert summary does not trigger the limitation period for extracontractual civil liability actions

The Conseil d'Etat first decides on the prescription of actions in extracontractual civil liability. In the case in point, the applicable provisions were those of the former Article 2270-1 of the Civil Code, which provided for a limitation period of 10 years from the occurrence of the damage or its aggravation. This period is now 5 years, following the reform implemented by Law No. 208-561 of 17 June 2008.

The Conseil d'Etat states first of all that this provision applies to the actions in guarantee exercised by one manufacturer against another. He then states that the limitation period can not run before the responsibility of the interested party has been sought by the contracting authority, the manifestation of the damage within the meaning of these provisions corresponds to the date on which the manufacturer received communication of the request presented by the client in the administrative court ".

In the present case, was the APIJ application for expert review likely to make the limitation period run? Not answer the Council of State, since such a request does not have a compensatory character. On the other hand, it is likely to interrupt the limitation period, if it was triggered before.

What you must remember :

An application for expert review initiated by the owner on the basis of Article R 532-1 of the Administrative Justice Code can not be regarded as constituting, on its own, a search for liability of the builders by the master of the property. the work.

 

Rule No. 2: Undertakings that do not carry out additional studies when a risk has been reported to them are liable

The State Council then decides on the responsibility of the group awarded the works contract.

In this respect, it notes that the group had proposed a variant concerning the support techniques but that it did not carry out, as part of this alternative solution, complementary soil surveys. He pointed out that even though he had information on the possible presence of water in the soil, he ignored the indications pointing out the risks resulting therefrom. Therefore, the judge holds that by refraining from making the necessary additional recognitions, the companies awarded works contract have committed a fault likely to engage their partial responsibility.

Rule n ° 3: When the preliminary studies identify a risk, the mastery of work commits a fault by not prescribing complementary studies

Similarly, while previous studies had revealed significant water levels in the subsoil, the member of the project management group responsible for the coordination of studies, studies relating to civil engineering, research and development. elaboration of the company consultation document and an assistance mission for the award of works contracts is a fault by not asking for additional surveys at the time of the consultation of the companies or the implementation studies entrusted to the group of companies. companies.

 


Board of state
N ° 391722
7th - 2nd rooms together
Mrs Charline Nicolas, rapporteur
Olivier Henrard, public rapporteur

Reading of Friday, February 10, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The project management agency of the Ministry of Justice, now Public Agency for Real Estate Justice, asked the Administrative Court of Nice to jointly condemn the members of the project management group, the companies Atelier Christian de Portzamparc, Ingerop, Iosis Mediterranean and Atec, to pay him a sum of 1 554 441,66 euros in compensation for the additional costs of the construction operation of the courthouse of Grasse linked in particular to ground movements.

By a judgment n ° 0801639 of June 22, 2012, the administrative court of Nice condemned jointly the companies Ingerop, Iosis Mediterranean, Atec and Christian Workshop of Portzamparc to pay to the Public Agency for the real estate of Justice the sum of 1 457 686.78 euros including VAT, then, ruling on the calls in guarantee, has left this condemnation to the final charge of the companies Campenon Bernard Côte d'Azur, coming to the companies Sogea and Sogea Sud-Est, and Cari, to height of 30 %, from Iosis Méditerranée up to 15 %, from Terrasol up to 7 %, from Fondasol up to 3 %, from Atelier Christian de Portzamparc up to 15 %, from Ceten Apave up to 5 % and the company Ingerop up to 25 %, and rejected the surplus conclusions of the Public Agency for Real Estate Justice.

By a judgment n ° s 12MA03086, 12MA03611 of May 12th, 2015, the administrative court of appeal of Marseilles reformed this judgment by raising from 25 to 30 % the part of the joint and several sentence left to the charge of the company Ingerop, brought back from 15% to 1 % and from 15% to 4,5 % the shares of the joint and several sentence left respectively to the expense of the companies Atelier Christian de Portzamparc and Iosis Méditerranée, now Egis Bâtiment, and increased from 7% to 15 %, from 3% to 4, 5 % and 5% to 15 % the shares of the joint and several conviction that the companies Terrasol and Fondasol and the GIE Ceten Apave were respectively condemned to guarantee, then rejected the surplus of the conclusions of the parties.

By a summary appeal and a supplementary memorandum, registered on 13 July and 13 October 2015 at the litigation secretariat of the Conseil d'Etat, the company Campenon Bernard Côte d'Azur, coming to the rights of the company Sogea, and the company Fayat Bâtiment, coming to the rights of the company Cari, ask the Council of State:

1 °) to annul this judgment;

2 °) to charge, jointly and severally, companies Ingerop, Iosis Mediterranean, Atec and Atelier Christian de Portzamparc the sum of 8 000 euros under article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

- the civil code;

- the code of public contracts;

- the code of administrative justice;

  1. Considering that it appears from the documents in the file submitted to the judges of the merits that, on 11 March 1994, the Ministry of Justice concluded, for the construction of a judicial city in Grasse, a contract of project management with a consortium Solidarity composed in particular of the company Atelier Christian de Portzamparc, architect and agent of the consortium, and the company SEEE, whose rights comes from the company Ingerop Consulting and Engineering; that, on August 28, 1995, the works contract was entrusted to a solidarity group consisting in particular of the companies Sogea Sud-Est and Sogea SA, to whose rights comes the company Campenon Bernard Côte d'Azur; that various disorders have been noted, due in particular to movements of soil; that following an application for summary ruling introduced by the contracting authority on 14 April 1998, a report was filed on 5 February 2002 by the expert appointed by the administrative court; that, on March 19, 2008, the agency of project ownership of the work of the ministry of justice, become the Public Agency for the real estate of Justice, acting on behalf of the State, seized the administrative court of a claim for joint and several liability against the member companies of the consortium for the payment of EUR 1,554,441.66 in compensation for the damage which it suffered mainly because of the cost of comfort made necessary by the movements of the ground; that, by a judgment of June 22, 2012, the Administrative Court of Nice condemned jointly companies Ingerop, Iosis Mediterranean, Atec and Atelier Christian de Portzamparc to pay to the Public Agency for Real Estate Justice the sum of 1 457 686.78 euros all taxes included, with interest at the legal rate starting March 3, 2008 and has, ruling on the calls in guarantee, in particular left this condemnation to the final charge of the companies Campenon Bernard Côte d'Azur and Cari for %, from Iosis Méditerranée up to 15 %, from Terrasol up to 7 %, from Fondasol up to 3 %, from Atelier Christian de Portzamparc up to 15 %, from Ceten Apave up to 5 % and the company Ingerop up to 25 %; that the appeal of the companies Campenon Bernard Côte d'Azur and Fayat Bâtiment, coming to the rights of the company Cari, should be regarded as directed against the judgment of May 12, 2015 of the administrative court of appeal of Marseilles as dismissed their appeal against this judgment;

On the main appeal of the companies Campenon Bernard Côte d'Azur and Fayat Bâtiment:

  1. Considering, in the first place, that under the terms of article 2270-1 of the civil code then applicable: "The actions in extracontractual civil liability are prescribed by ten years as from the manifestation of the damage or its aggravation"; that this provision applies to the actions in warranty exercised by one manufacturer against another; the limitation period can not run before the responsibility of the interested party has been sought by the owner, the manifestation of the damage within the meaning of these provisions corresponds to the date on which the manufacturer received communication of the application presented by the client in the administrative court; that an application for an expert report filed by the contracting authority on the basis of Article R. 532-1 of the Code of Administrative Justice can not be regarded as constituting, on its own, a search for liability of the builders by the owner; that, consequently, in judging that the introduction of such a request, if it is likely to interrupt the period of prescription, is not likely to make run the ten years period envisaged by the aforementioned provisions since that it does not present the nature of a claim indemnity, the administrative court of appeal of Marseilles did not tainted its judgment of error of right;

  1. Secondly, it is apparent from the statements in the judgment under appeal that, on the one hand, the group awarded works had proposed a variant on the techniques of support in order to improve safety against the risk of slipping. field and that it did not perform, as part of this alternative solution, complementary soil surveys; on the other hand, that even though he had information from his council about the possible presence of water in the soil, he ignored the indications pointing out the resulting risks; that in view of these assessments devoid of denaturing, the Administrative Court of Appeal of Marseilles did not make error of law nor error of legal qualification of the facts by judging that by abstaining from proceeding, from on their own, with the necessary additional recognition, the companies awarded the works contract have committed a fault of a nature to engage their partial responsibility in the occurrence of the damages suffered by the Public Agency for the Real Estate of the Justice because of the movements of ground ;
  1. Considering, finally, that it appears from the documents submitted to the judges of the merits, and in particular from page 67 of the expert report of 5 February 2002, that, contrary to the contentions of the applicant companies, the court has retained a calculation that achieves the same result as the expert; that it sufficiently motivated its judgment on this point and did not distort the parts of the file; that it did not fail to take into account the compensation paid to the contracting authority by its insurer and thus did not taint its judgment of an error of law on this point;
  1. Considering that it follows from all the foregoing that the appeal of the companies Campenon Bernard Côte d'Azur and Fayat Bâtiment must be dismissed, including their conclusions presented under Article L. 761-1 code administrative justice;

On the cross-appeal by Ingerop Conseil et Ingénierie:

  1. Considering that it appears from the documents in the file submitted to the judges of the merits, in particular the expert report of 5 February 2002, that Ingerop Conseil et Ingénierie was in charge, within the consortium of project management, of the coordination technical studies, studies on civil engineering, development of the consultation document of companies and a mission of assistance to the procurement of works; that the court has supremely noted, without misrepresenting the documents in the file, that it was responsible for establishing the complementary soil recognition program and that it did not consider it necessary, at the time of consulting companies or studies the group of companies, to request additional surveys in the zone of influence of the planned earthworks, even though the preliminary studies carried out by the Fondasol company had revealed significant water levels in the subsoil. ground ; that in these circumstances, the Administrative Court of Appeal of Marseilles did not tainted its judgment of error of legal qualification by judging that it had committed a fault by refraining from carrying out additional surveys; that consequently, the incidental appeal of this company must be rejected, including its conclusions presented under Article L. 761-1 code administrative justice;
  1. Considering that in the circumstances of this case, the companies Campenon Bernard Côte d'Azur and Fayat Bâtiment should be jointly and severally liable for the sum of € 1,500 to each of the Egis Bâtiments Méditerranée and Terrasol companies, Article L. 761-1 of the Code of Administrative Justice;

DECIDE:

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Article 1: The appeal of the company Campenon Bernard Côte d'Azur and the company Fayat Bâtiment is rejected.
Article 2: The cross-appeal of Ingerop Conseil et Ingénierie is rejected.
Article 3: The companies Campenon Bernard Côte-d'Azur and Fayat Bâtiment will jointly pay a sum of 1500 euros to the company Egis buildings Mediterranean and the Terrasol under Article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the company Campenon Bernard Côte d'Azur, Fayat Bâtiment, Ingerop Conseil et Ingénierie, Egis Bâtiments Méditerranée and Terrasol.