The duration of a public service delegation contract may exceed 20 years if the new investment charges justify it
TA Bordeaux, May 9, 2016, Mr. A ... F ... and others, No. 1302295
The urban community of Bordeaux, which became Bordeaux Métropole, has conceded the drinking water and sanitation service through a 30-year agreement from 1st January 1992. Several amendments have been concluded, in particular an amendment n ° 7 increasing the level of investment at the expense of the delegatee, an amendment n ° 8 providing for the replacement of the connections and defining a return indemnity for renewed connections, an amendment n. ° 9 now the initial term of the duration of the delegation beyond 20 years. One association and several individuals filed a graceful application for withdrawal, and a contentious appeal against the deliberations approving amendments 7 to 9.
Rule No. 1: An amendment without a regulatory clause does not fall within the scope of the obligation to repeal unlawful regulations
The deliberation approving Amendments 7 and 8 dated December 22, 2006 and July 10, 2009, respectively, was posted regularly. The withdrawal request dated April 18, 2013, the court holds that this request was late. However, it recalls that under the terms of Article 16-1 of the Act of 12 April 2000, then in force, the administration is required to repeal any regulation that is unlawful or irrelevant and that the petitioners' request may be considered as a request for repeal. Nevertheless, the two riders approved by the contested deliberations aiming at an increase of the level of investment charged to the delegate, for one, and the replacement of the connections as well as the fixing of a return indemnity of the renewed connections, for the other, the judge considers that these modifications concern only the relations between the delegatee and the collectivity, of a purely contractual nature and do not concern the organization and the functioning of the public service and, in particular, have no impact on user fees. Consequently, the judge holds that these deliberations do not have the character of a regulatory act and can not thus fall within the scope of the aforementioned provisions.
Rule 2: the decision to maintain the term of a 30-year CSP is not illegal when the amortization of new expenses justifies it
Article L.1411-2 of the CGCT, applicable at the material time, provided that the PSD agreements must be limited in their duration and that those in the field of drinking water and sanitation may not exceed 20 years. Applying case law Municipality of Olivet (EC, 8 April 2009, Nos. 271737 and 271782), the court recalls that the terms of a PSD in the field of drinking water and sanitation concluded prior to the entry into force of these provisions and which would have the effect of allowing its execution beyond the maximum term of 20 years became, from 2 February 2015, obsolete. However, the same article provides that the duration of the CSP may be longer than 20 years in the event of prior examination by the departmental director of public finances of proof of exceeding this duration. In the present case, the Director had been consulted to allow the DSP agreement to run over the initially planned period of 30 years, so that the amortization of the delegate's new expenses arising from addendums 7 and 8 could be smoothed over a period of one year. period to continue lowering water rates for users. In this respect, the court considers that the interruption of the CSP after 20 years would have required the community to compensate the delegatee for the investments relating to the unamortized return assets. It also notes that the Regional Director of Public Finance found that the delegate's investment and commitment burden on the quality of the service, resulting in particular from the endorsements mentioned above, justified a 30-year period of execution of the agreement. Accordingly, the Judge dismisses the applicants' plea that the decision to maintain the original term of the agreement beyond 20 years is unlawful.
ADMINISTRATIVE TRIBUNAL OF BORDEAUX
MY F…. and others
François Béroujon, Rapporteur
Axel Basset (, Public Rapporteur
Hearing of April 11, 2016
Reading of May 9, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
By an application registered at the registry of the administrative court of Bordeaux on June 19, 2013, the association Trans'Cub, ME..B ..., MG..D ... and MA .. F ..., ask the court :
- to cancel the deliberations n ° 2011-0560 of July 8, 2011 and n ° 2012-036 of December 21, 2012 of the council of the urban community of Bordeaux, together the decision of the president of the urban community of Bordeaux of April 18, 2013 refusing to withdraw these deliberations as well as those n ° 2006-0947 of December 22, 2006 and n ° 2009-0501 of July 10, 2009;
- to "find the tariff clauses provided for in the deliberations n ° 2006-0947 and n ° 2009-0501 illegal and fix the price of the m³ to be applied";
By a statement in defense, registered on August 26, 2014, supplemented by a memorandum filed on March 23, 2015, Bordeaux Métropole, replacing the Bordeaux urban community, represented by Selarl AdDen Bordeaux, concluded that the motion should be dismissed and that that it is charged to the applicants a sum of 5,000 euros under Article L. 761-1 code administrative justice.
By order of March 2nd, 2015, the closing of instruction was fixed on March 23rd, 2015.
A brief presented by the association Trans'Cub, ME..B ..., MG..D ... and MA .. F ... was registered on April 7, 2015, after the closing of the investigation.
Considering the other parts of the file.
- the general code of local authorities;
- Law No. 2000-321 of April 12, 2000;
- the code of administrative justice.
The parties were regularly notified of the day of the hearing.
The following were heard during the public hearing:
- the report of Mr. Béroujon, first counselor,
- the conclusions of Mr Basset, public rapporteur,
- and the observations of MF..and Me C ... for Bordeaux Métropole.
A note under advisement presented by the association Trans'Cub, MB .., MD..and MF .. was registered on April 13, 2016.
- Considering that by deliberation of December 20, 1991, the urban community of Bordeaux, become Bordeaux Métropole, decided to concede the service of distribution of drinking water and purification to the society Lyonnaise of waters by convention of a duration of 30 years , running from 1 January 1992 to 31 December 2021; that by a deliberation of December 22, 2006, the council of Bordeaux Métropole decided to adopt a rider n ° 7 to this convention whose object, in its provisions contested by the applicants, to increase the level of investments to the load the delegatee over the duration of the delegation, from 146 to 302 million euros; that by deliberation of July 10th, 2009, the council of Bordeaux Métropole decided to adopt an amendment n ° 8 to the delegation whose object, in its provisions contested by the applicants, to envisage the replacement, on the network of distribution, of the lead connections for an estimated amount of 78 million euros and to define the total amount of the "return charge for renewed lead connections" payable by Bordeaux Métropole at the end of the delegation; that by deliberation of July 8, 2011, the council of Bordeaux Métropole decided, in its provisions disputed by the applicants, to create 3 posts of category A and 4 posts of category B in anticipation of the operation in control of the service of distribution of drinking water and sanitation at the end of the delegation; that by deliberation of December 21, 2012, the council of Bordeaux Métropole decided to adopt an amendment n ° 9 to the delegation whose object, in its provisions contested by the applicants, to maintain the end of the duration of the delegation to the 31 December 2021; that by recourse graceful of February 21, 2013, the applicants asked the president of Bordeaux Métropole to report the four aforementioned deliberations on the grounds that they would be illegal; that by decision of April 18, 2013, the president of Bordeaux Métropole rejected the gracious request of the applicants; that by the present appeal, they ask the court to cancel the deliberations of July 8, 2011 and December 21, 2012, together the decision of the president of the urban community of Bordeaux of April 18, 2013 refusing to withdraw these deliberations as well as those of December 22, 2006 and July 10, 2009, and "to note the illegality of the tariff clauses provided for in the deliberations n ° 2006-0947 and n ° 2009-0501 and to fix the price of the m³ to be applied";
As to the admissibility of the claims that the tariff clauses provided for in Commission Decisions Nos 2006-0947 and 2009-0501 should be unlawful and that the price for the m³ of water should be fixed as follows:
- Considering that it does not belong to the administrative judge to accept conclusions in declaration of rights; that, consequently, the conclusions tending so that the court notes the illegality of the tariff clauses envisaged by the deliberations n ° 2006-0947 and n ° 2009-0501 and that it establish, consequently, new prices of the m³ of l water, are inadmissible and must be rejected;
On the conclusions directed against the decision of 18 April 2013 in so far as she refuses to report the deliberations of 22 December 2006 and 10 July 2009:
- Considering that it appears from the documents in the file that the deliberations were querellées regularly posted at the headquarters of Bordeaux Métropole, December 22, 2006 for the first for a period of two months, July 16, 2009 for the second for a period of two months also; that if the applicants had challenged the deliberation of December 22, 2006 by a petition registered February 23, 2007 the administrative court of Bordeaux, it has noted the discontinuation of the proceeding committed by order of March 12, 2009 become final; that as a result, their request for withdrawal of deliberations litigation formulated on February 21, 2013, after the expiry of the period of appeal litigation, was late; that consequently, the applicants are not founded to request the cancellation of the decision of April 18, 2013 rejecting their request to withdraw the deliberations of December 22, 2006 and July 10, 2009;
- Considering that under Article 16-1 of the law of 12 April 2000 on the rights of citizens in their relations with the administrations then in force: "The competent authority shall be obliged, ex officio or at the request of 'an interested person, to expressly repeal any regulation that is unlawful or irrelevant, whether this situation has existed since the publication of the regulation or that it results from circumstances of law or fact subsequent to that date';
- Considering that the request sent by the applicants on February 21, 2013 to the president of Bordeaux Métropole to "report" the deliberations of December 22, 2006 and July 10, 2009 can also be regarded as a request for repeal of these; that, however, that of December 22, 2006, in its provisions contested by the applicants, was intended to approve the increase in the level of investments at the expense of the delegatee over the duration of the delegation, from 146 to 302 million euros, and not, contrary to what the applicants claim, to extend it; Similarly, that of 10 July 2009, in its provisions challenged by the applicants, was intended to approve the replacement, on the distribution network, of lead connections for an estimated amount of 78 million euros and define the total amount of the "return charge for renewed lead connections" payable by Bordeaux Métropole at the end of the delegation and not, contrary to what the applicants claim, to extend it; that these amendments, which concern only the relations between the delegatee and the delegating authority, are purely contractual and do not relate to the organization and functioning of the public service of distribution of drinking water and sanitation and, in in particular, do not relate to the rates applicable to users who are not revalued upwards, despite the increase in delegate's charges resulting from these amendments; as a result, these deliberations do not have the character of a regulatory act; that, even supposing that the applicants could be regarded as having requested the annulment of the refusal to repeal, and not to report the deliberations in question, they are not justified in invoking the abovementioned provisions of Article 16; 1 of the law of 12 April 2000;
On the conclusions directed against the deliberation of July 8, 2011:
Without it being necessary to examine the admissibility of the conclusions;
- Considering that according to the article L. 1411-2 of the general code of the territorial collectivities: "The conventions of delegation of public service must be limited in their duration. This is determined by the community according to the services requested from the delegatee. Where the facilities are the responsibility of the delegatee, the delegation agreement shall take into account the nature and amount of the investment to be carried out in order to determine its duration and may not in this case exceed the normal amortization period of installations implemented (...) In the field of drinking water, sanitation, garbage and other waste, public service delegations can not have a duration greater than twenty years unless prior examination by the departmental director of public finances, at the initiative of the delegating authority, proof of exceeding this duration. The conclusions of this examination are communicated to the members of the competent deliberative assembly before any deliberation concerning the delegation (...) "; that it follows from these provisions, informed by the decision of the Council of State 271737 and 271782 of 8 April 2009, that the clauses of a public service delegation agreement concluded in the field of drinking water and prior to the entry into force of these provisions on 2 February 1995 and which would have the effect of enabling it to be carried out beyond the maximum period of twenty years provided for by law, that is to say beyond 2 February 2015, become, from this date, obsolete and can no longer be regularly implemented;
- Considering that the disputed deliberation of July 8, 2011 is only intended to create three category A and four category B positions to strengthen the staff of the water department within Bordeaux Métropole in order to prepare the implementation public authority for the distribution of drinking water and sanitation "by 2018", and to authorize the president to recruit a contract agent for the same purpose; such a deliberation which has neither the purpose nor the effect of prolonging the period of implementation of the public service delegation in question beyond 2 February 2015, does not fall within the scope of the abovementioned provisions ; that consequently, the means, directed against this deliberation, drawn from the ignorance of the limitation of duration of the delegations of public service of drinking water and from the absence of preliminary opinion of the departmental director of the public finances, are inoperative; that therefore, the conclusions to annul the deliberation of July 8, 2011, which are not accompanied by any other means, can, supposing them admissible, that to be rejected, likewise, by consequence, that those for cancellation of the decision of April 18, 2013 as it rejects the request for withdrawal of this deliberation; The claims against the deliberation of 21 December 2012: Without having to consider the admissibility of the claims;
- Considering that under the terms of article L. 2121-12 of the general code of the territorial collectivities in its then applicable version: "In the communes of 3 500 inhabitants and more, an explanatory note of synthesis on the cases subjected to deliberation must be addressed with the convocation to the members of the municipal council. / If the deliberation relates to a public service contract, the draft contract or contract accompanied by all the documents may, at its request, be consulted at the town hall by any municipal councilor under the conditions set by the rules of procedure. / The notice period is five clear days. In case of urgency, the deadline may be abridged by the mayor but may not be less than one clear day (...) "; that according to the article L. 2121-13 of the same code: "Every member of the municipal council has the right, within the framework of its function, to be informed of the affairs of the commune which are the object of a deliberation "; that under the terms of Article L. 5211-1 of the Code: "The provisions of chapter I of title II of book I of the second part relating to the operation of the municipal council are applicable to the functioning of the deliberative body of the institutions public authorities for inter-municipal cooperation, insofar as they are not contrary to the provisions of this Title (...) ";
- Considering that under Article L. 1411-2 of the General Code of Local Authorities: "(...) In the field of drinking water, sanitation, garbage and other waste, the delegations public service may not have a duration greater than twenty years unless prior examination by the departmental director of public finances, on the initiative of the delegating authority, evidence of exceeding this duration. The conclusions of this examination are communicated to the members of the competent deliberative assembly before any deliberation concerning the delegation. / A delegation of service may be extended only (...) b) When the delegatee is obliged, at the request of the delegator, to make material investments not provided for in the initial contract likely to modify the general scheme of the delegation and which could be amortized over the term of the remaining agreement only by a manifestly excessive price increase. / These provisions apply when the material investments are motivated by: - the proper performance of the public service (...) ";
- Considering that the project of deliberation joined to the convocation of the members of the council of the community on December 10, 2012 for the meeting of December 21, 2012 mentioned: "By an opinion rendered XXX, the DRFIP considered that the treaty could run up to 'as of December 31, 2021';
- Considering that the applicants criticize the deliberation which took place on December 21st, 2012 to have been preceded by a project of deliberation having prejudged the opinion of the regional director of the public finances, which was only delivered on December 20th, 2012; that however, it emerges from this opinion, that the law has imposed to require before the adoption of any project of delegation of public service of drinking water of a duration greater than 20 years so that the regional director of the public finances pronounces on the evidence of exceeding that duration, that it considered that the extension of the duration of the public service delegation until 31 December 2021 was justified and that the only reservation it expressed concerned not the duration of the the delegation but certain changes in the distribution of burdens for the search for alternative resources and the methods of recovery of the community share with users; thus, the fact that the draft deliberation anticipated the favorable opinion of the regional director of public finances on the question of the extension of the duration of the public service delegation, which is explained by the fact, by the circumstance, alleged by Bordeaux Métropole and not contested by the applicants, that the services of the urban community, for the investigation of the file, were already in informal contact with the regional director of public finances and had been informed that it validated the principle of the extension the duration of the delegation even before the formalization of the opinion on 20 December 2012, was not such as to mislead the Community advisers on the question submitted to them at the meeting; that as a result, the plea that the draft deliberation had illegally prejudged the opinion of the Regional Director of Public Finance must be dismissed;
- Considering that the applicants argue that the opinion of the regional director of public finances was not fully communicated to them prior to the adoption of the deliberation in dispute; that however, it appears from the documents of the file that if the opinion of the regional director of the public finances was indeed not communicated in full to the advisers of Bordeaux Métropole, the entirety of its part relating to the overflow of the legal duration of the delegation public service for which the opinion was requested, was read in session and that this reading was correct; that thus, the parts of the opinion which were not communicated to the advisers did not concern the question of the exceeding of the legal duration of the delegation of public service; that in any event, it does not appear from the documents in the file that the communication of this opinion would have been denied to interested parties by the president of the community council; that as a result, the plea that the communication of the opinion of the Regional Director of Public Finance in session would have been partial must be dismissed;
- Considering that the applicants contend that the communication made at the meeting of the opinion of the Regional Director of Finance was such as to mislead the Community advisers on its content in that the opinion would have been presented to them as being "favorable" then that he was "reserved"; that however, the reading in session of the extract of the opinion on the extension of duration of the public service delegation and which justified the request for opinion, transcribed in an exact and integral way the position expressed in the opinion about this question ; that, as has been pointed out in the preceding paragraph, no adviser has asked, or been refused, a full reading of the opinion; that as a result, the only circumstance that the opinion was not read in full during the meeting, in that passages of the opinion relating to other points that the exceeding of the legal duration of the delegation of public service, have not been read, is not such as to establish, contrary to what the applicants claim, that this reading could have misled the Community advisers; Finally, it emerges from the draft deliberation sent prior to the meeting of 21 December 2012 that it contained all sufficient information to enable the elected representatives to take note of the elements relating to the maintenance of the initial duration of the public service delegation. drinking water as well as those relating to draft amendment no. 9; The plea alleging that the communication of the opinion at the sitting would have been such as to mislead the Community advisers must therefore be rejected.
- Considering that the complainants claim that between 2015 and 2021, the net operating cash flow of the drinking water supply and sewerage service varies between EUR 32.6 and 45.2 million, while indicating that contradictory, that the available cash balance, after investments, varies, over the same period, between 19.4 million euros and 69.2 million euros, the free cash balance not exceeding the net cash flow operating before investments; that they also argue that the "profitability of the contract for the concessionaire progresses considerably" over the last eight years of operation to reach 259.3 million euros; However, the applicants do not take into account the general scheme of this type of contract and conceal in particular the fact that, in its first years, the delegatee must assume a heavily deficient exploitation. whereas, above all, in the present case, during the execution of the public service delegation, the level of investments to be borne by the delegate was increased from EUR 146 million to EUR 302 million in order to improve the quality of the service; service to users and the distribution and sanitation network to take into account the new water standards, an increase of 156 million euros in the investment charge of the delegate, decided by the deliberation of 22 December 2006 adopting Addendum No 7; that during the execution of the delegation, the delegatee also had to assume the replacement, not foreseen initially, of 60 995 lead connections over a constrained period, for an amount of 78.935 million euros, as it is clear from the deliberation of July 10, 2009 approving amendment no. 8; that the decision to extend the period of execution of the public service delegation beyond the statutory period of twenty years expiring on February 2, 2015, was thus taken so that the amortization of the delegate's new expenses can be smoothed over a period to continue the decline, already committed, of water rates for users; that the interruption of the execution of the public service delegation on February 2, 2015 would have implied that Bordeaux Métropole compensates the delegatee notably for the part of the investments relating to the unamortized return assets; that, moreover, the regional director of public finances estimated, in his opinion of December 20th, 2012, that the load of the investments and the commitments of the delegate on the quality of the service, as resulting notably from the aforementioned endorsements, justified a duration of execution of the 30-year delegation, that is, running until 31 December 2021; that under these conditions, Bordeaux Métropole could legally maintain the initial duration of the public service delegation for a period of thirty years, that is to say until December 31, 2021; Consequently, the plea that the decision to extend the period of execution of the delegation until the latter date would be in breach of Article L. 1411-2 of the General Code of Territorial Communities, must be rejected.
- Considering that the applicants argue that the quarreled deliberation, in that it approves certain stipulations of the rider n ° 9 which reserve to Bordeaux Métropole the power to make carry out works, under its control of work, having for object the research alternative water resources, has changed the nature of the public service delegation by transforming the concession into a "mixed concession-leasing agreement"; whereas, however, the contested provisions, far from conferring on the delegating authority the task of assuming the "work of catching and pumping with a potentially high cost" which would be incumbent on the delegate, in execution of the public service delegation, provide only for the faculty of Bordeaux Métropole, at its discretion, to have certain research work carried out in alternative water, with a view to taking over the public drinking water service at the end of the delegation agreement in order to to anticipate this one in the best conditions; that these stipulations, which do not make the delegating authority responsible for investments falling within the mission of the delegate of the public service of distribution of drinking water and sanitation, do not modify the object, the nature, or one of the essential elements of the delegation; Consequently, the plea that the addendum approved by the deliberation would have modified the public service delegation to such an extent that it implied the conclusion of a new contract can only be rejected.
- Considering, finally, that the plea that "Articles 21.3, 30a, 33.1 and 33 ter.1 of the modified concession agreement do not comply with the rules of public accounting" is not accompanied by the details enabling it to be assessed the merits ;
- Whereas it follows from the foregoing that the claims for annulment submitted by the applicants must be rejected; On the conclusions at the end of the injunction:
- Considering that this judgment, which rejects the claim for annulment submitted by the applicants, does not imply any injunction;
The conclusions presented under Article L. 761-1 of the Administrative Justice Code:
- Considering that it is not necessary, in the circumstances of the case, to put on the charge of the association Trans'Cub, MM.B ..., D ... and F ..., the Bordeaux Métropole claims costs incurred and not included in the costs; that the provisions of the same article also prevent the amounts requested in this respect by the association Trans'Cub, MM.B ..., D ... and F ..., to be charged to the Bordeaux Métropole, which is not the losing party in this case;
Article 1: The request of MF .. et al. Is rejected.
Article 2: Bordeaux Métropole's conclusions presented under Article L. 761-1 of the Administrative Justice Code are rejected.
Article 3: The present judgment will be notified to MA .. F ..., to the Trans'Cub association, to ME .. B ..., to MG .. D ... and to Bordeaux Métropole.