Distinction des marchés publics et conventions d'occupation du domaine public

Distinction of Public Procurement and Occupancy Agreements in the Public Domain

by gmorales on 27 December 2014 | Category: Pre-contractual & Contractual referral
Distinction des marchés publics et conventions d'occupation du domaine public Distinction des marchés publics et conventions d'occupation du domaine public

Distinction des marchés publics et conventions d'occupation du domaine public Rule n ° 1:

The Council of State reminds that the qualification of street furniture contracts is not general but depends on the precise purpose of the agreement and the remuneration of the contracting party of the administration (CE Ass., November 4, 2005, Sté Jean -Claude Decaux, Req.no. 247298, EC, 15.05.2013, City of Paris, req.no. 364593).

Thus, a contract which authorizes, in an exclusive capacity and in exchange for a fee, an advertising network activity on the public domain, of which the other party itself defines the content and extent, does not respond to a need of the public person. Even when accompanied by an obligation to make certain display media available for the benefit of the latter during certain periods of the year, the contract entrusted with the management of the marketing of advertising space does not constitute a public contract, provided that these conditions for making available are limited to regulating the methods for using the domain.

Rule n ° 2:

The judge of the pre-contractual recourse is not competent to rule on a request relating to the procedure of conclusion of a contract which is not among the contracts mentioned in Article L. 551-1 of the code of administrative justice ( CJA), including whether the public body has chosen to comply, without being bound, with the procedure applicable to public contracts awarded by contracting entities.

Board of state

N ° 384170
ECLI: FR: CESSR: 2014: 384170.20141203
Mentioned in the tables of Lebon collection
7th / 2nd SSR
Mr Frédéric Dieu, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP WAQUET, FARGE, HAZAN; SCP LYON-CAEN, THIRIEZ; SCP NICOLAY, DE
LANOUVELLE, HANNOTIN, lawyer (s)

Reading of the Wednesday, December 3rd, 2014
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considered 1 °, under the n ° 384170, the summary appeal and the complementary memory, registered on September 3 and 18, 2014 to the secretariat of the litigation of the Council of State, presented for the public establishment Tisséo whose seat is 4 impasse Paul Mesplé in Toulouse (31100); the public establishment asks the Council of State:

1 °) to cancel the ordinance n ° 1403656 of August 19, 2014 by which the judge of the summary of the administrative court of Toulouse, ruling in application of the article L. 551-1 of the code of administrative justice, has, on the request from the company Extérion Média, canceled the procedure initiated on March 6, 2014 by the public body Tisséo for the purpose of awarding lot n ° 1 of the advertising services services contract in the stations of the lines A and B of the metro From toulouse ;

2 °) ruling in summary, to reject the request of the company Extérion Média;

3 °) to charge the company Extérion Media a sum of 4 000 euros under article L. 761-1 code administrative justice;

Considered 2 °, under no. 384183, the summary appeal and the complementary memorandum, registered on September 3 and 18, 2014 to the litigation secretariat of the Conseil d'Etat, presented for the Métrobus company, whose registered office is 1 Rond-Point Victor Hugo in Issy-les-Moulineaux (92130); the company asks the Council of State:

1 °) cancel the same order;

2 °) ruling in summary, to reject the request of the company Extérion Média;

3 °) to charge the company Extérion Media a sum of 8 000 euros under Article L. 761-1 code administrative justice;

Considering the other parts of the file;

Given the note under deliberation, recorded on November 14, 2014, presented for the company Extérion Média

Considering the note under deliberation, recorded on November 21st, 2014, presented for Métrobus;

Given the general code of ownership of public persons;
Given the code of public contracts;
Considering the code of administrative justice;

After hearing in open session:

- the report of Mr. Frédéric Dieu, master of petitions,
- the conclusions of Mr Gilles Pellissier, public rapporteur;

The word having been given, before and after the conclusions, to the SCP Waquet, Farge, Hazan, lawyer of the public institution Tisséo, to the SCP Lyon-Caen, Thiriez, lawyer of the Métrobus company, and to the SCP Nicolaÿ , of Lanouvelle, Hannotin, lawyer of the company Extérion Média;

1. Whereas the appeals of the public institution Tisséo and the Métrobus company are directed against the same order; whereas it is necessary to join them in order to give a decision;

2. Considering that under the terms of Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, can be seized in case of breach of the obligations of advertising and competitive bidding to which the contracting authorities are subject to administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, or the delegation of a public service (...) ";

3. Considering that it appears from the documents in the file submitted to the judge hearing the application for interim relief that, by a notice of public invitation published on 6 March 2014, the public establishment Tisséo, a local public institution of an industrial and commercial nature which ensures pursuant to an agreement with the Syndicat mixte des transports de l'agglomération de Toulouse, the operation of the urban public transport service of the Toulouse urban area, has initiated a negotiated procedure for the allocation of a "market" for the purpose of marketing advertising space for Toulouse buses and metros, and lot 1 of which concerned the use of advertising media for the A and B subway stations of Toulouse subway and the carrying out of operations advertising in the enclosure thereof; that the Métrobus and Extérion Média companies each submitted an offer, the contract was awarded to Métrobus; that, by the order contested, the judge of the interim administrative court of Toulouse, ruling in application of Article L. 551-1 code administrative justice, has, at the request of the company Extérion Media, canceled the procedure disputed award;

4. Considering that under I of Article 1 of the Code des Marches Publics: "The provisions of this Code apply to public contracts and framework agreements as defined: public contracts are contracts concluded for valuable consideration between the contracting authorities defined in Article 2 and public or private economic operators, to meet their needs for works, supplies or services (...) ";

5. Considering that it appears from the documents in the file submitted to the judge of interim relief that the contract in question, as stated above, for the purpose of authorizing the exclusive contracting party of the public institution Tisséo to In return for a fee paid to the latter, carry out an advertising network activity in the public domain, the co-contractor of which defines the content and scope itself, by choosing the advertisers and setting up new advertising media. and from which he alone receives the corresponding revenues; that if it also emerges from the documents of the file submitted to the judge of the interim reliefs that the public establishment Tisséo is charged, according to article 2.7.2. of the agreement concluded between that establishment and the Syndicat mixte des transports d'agglomération of Toulouse, "of the management of the marketing of advertising space", that task entrusted by the union to the public establishment can not, by itself, even make the contract in dispute appear to have the purpose of satisfying the needs of the latter, within the meaning of Article 1 of the Code des Marches Publics; the same applies to the fact that, pursuant to the provisions of Article 2.5 of the special technical clauses, the contracting party of the public establishment Tisséo must undertake to keep at the disposal of the latter several weeks per year, part of the advertising space covered by the contract, since such stipulations are intended to determine the extent to which the advertising media in question are made available to the other party for its exploitation and not to define a specific need for the public service organization, Tisséo, to which this contracting party would respond;

6. Considering that it follows from the foregoing that the disputed contract, for which the company Extérion Media has asked the pre-contractual judge to cancel the award procedure, is in the nature of a convention of occupation of the estate public; such a contract, which does not concern the delegation of a public service or the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right to exploitation, is not among the contracts mentioned in Article L. 551-1 of the Code of Administrative Justice, in respect of which the pre-contractual judge may take the measures defined in Article L. 551-2 of this code; that, consequently, and even though the public establishment Tisséo has chosen to submit, without being held, the procedure applicable to public contracts awarded by contracting entities, which would moreover fall under Article L. 551- 5, the pre-contractual judge did not have jurisdiction to rule on the application submitted by Exterion Media;

7. Whereas it follows from all the foregoing that, without it being necessary to examine the other grounds of the appeals, the order under appeal must be set aside;

8. Considering that it is necessary, in application of the provisions of Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interlocutory proceedings initiated by the company Extérion Média;

9. Considering that it follows from what has been said above that the request made by the company Extérion Média on the basis of Article L. 551-1 code administrative justice can only be rejected;

10. Considering that the provisions of Article L. 761-1 of the Administrative Justice Code prevent the public establishment Tisséo and Métrobus, who are not, in the present losing parties, the payment of an amount for the expenses incurred by the company Extérion Média; On the other hand, in the circumstances of this case, it is appropriate to uphold the submissions made by the public establishment Tisséo and the Métrobus company pursuant to those provisions and to charge Exterion Media the payment of a sum of 2,000 euros to each;

DECIDE:
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Article 1: The ordinance of August 19, 2014 of the judge of the summary of the administrative court of Toulouse is canceled.
Article 2: The request made by the company Extérion Média before the Administrative Court of Toulouse and its conclusions tending to the application of the provisions of Article L. 761-1 code administrative justice are rejected.
Article 3: The company Extérion Média will pay a sum of 2 000 euros, respectively, to the public establishment Tisséo and Métrobus company in application of the provisions of Article L. 761-1 code administrative justice.

Article 4: This decision will be notified to the public body Tisséo, Métrobus company and the company Extérion Média.

Summary: 39-08-015-01 The judge of pre-contractual recourse does not have jurisdiction to rule on an application relating to the procedure of conclusion of a contract which is not among the contracts mentioned in article L. 551-1 of the Administrative Justice Code (CJA), including whether the public body has chosen to comply, without being bound, with the procedure applicable to public contracts awarded by contracting entities.

54-03-05 The judge of the pre-contractual recourse does not have jurisdiction to rule on a request relating to the procedure of conclusion of a contract which is not among the contracts mentioned in article L. 551-1 of the Code of Administrative Justice (CJA), including whether the public body has chosen to comply, without being bound, with the procedure applicable to public contracts awarded by contracting entities.