When a judge of pre-contractual interim measures considers himself a legislator and questions the right to a judicial remedy
The University Hospital of La Réunion had launched a competitive dialogue procedure for a market to which the SBR company applied. She was dismissed at the candidacy stage and brought a pre-contract injunction five months later. The opportunity for the judge of the Administrative Tribunal of the Meeting to apply and adapt the recent principle reached by the Council of State of the reasonable period of recourse to pre-contractual summary proceedings in somewhat criticizable conditions ...
Rule n ° 1: The principle of a reasonable time limit for appeal is applicable to summary proceedings
In matters of pre-contractual summary proceedings, article L.551-1 of the CJA provides that "the judge is seized before the conclusion of the contract". In the present case, the ousted company formed a pre-contractual summary procedure after the final phase of selection of offers, when the contract was not yet signed, but on the point of being signed. The above-mentioned condition was therefore fulfilled. However, taking up the recital in principle set out by the Council of State in its important and recent judgment of July 13, 2016, MA v / Minister of the Economy and Finance, No. 387763, according to which the principle of legal certainty is an obstacle that a decision notified or of which it is established that the addressee has knowledge of it can be contested indefinitely, the judge in summary proceedings here retains that this principle "applicable to general litigation, cannot be regarded as incompatible with the procedures of summary procedure" . In doing so, the Administrative Court of Reunion extends the scope of the principle of reasonable time for appeal. It will be recalled that, in the abovementioned judgment of the Council of State, the contested individual decision had been the subject of a notification which did not include all the information relating to the means and time limit for appeal and that the addressee had introduced recourse against him 22 years later. The Council of State, noting that the two-month appeal period was not opposable to the applicant because the information relating to the channels and appeal deadlines was incomplete, considered however that the principle of legal certainty did not allow a such a decision could be challenged indefinitely and set out the principle of a reasonable time to appeal to dismiss the complaint as out of time. In the present case, it was not a question of knowing whether all the information relating to the means and time limits of appeal had been brought to the attention of the company SBR and the Administrative Court of Reunion applied the principle of the reasonable period of appeal for judge the late pre-contractual summary, even when the contract had not been concluded.
Rule n ° 2: For pre-contractual summary proceedings, the reasonable time limit for appeal is three months, except in special circumstances
The judge of the summary procedure also adapts the general principle released by the Council of State to the specificities of the procedures of pre-contractual summary procedure. Indeed, the Council of State had stated that "as a general rule and except in special circumstances which the applicant would claim, this period of [reasonable appeal] cannot, subject to the exercise of administrative appeals for which the texts provide particular deadlines, to exceed one year from the date on which an express decision was notified to him or the date on which it is established that he became aware of it ”. The President of the Court, for his part, held that, as regards the proceedings for interim measures, "the concept of reasonable time must, however, give rise to a specific definition, such as to meet the urgent considerations inherent in the office of the summary judge ". As regards the pre-contractual summary procedure, he therefore considers that "subject to special circumstances of which the ousted competitor would rely, the reasonable time for referral to the judge may not exceed three months from the date on which he became fully aware of the eviction decision. ".
Rule n ° 3: Failure to comply with the principle of reasonable time to appeal is a means of public policy
Finally, it will be noted that this plea relating to breach of the principle of a reasonable time for bringing an action was not invoked by the CHU, but was raised ex officio by the judge in summary proceedings. It is therefore a means of public order.
Such a solution is open to criticism in several respects. First of all, it is open to criticism with regard to the legislative provisions of article L.551-1 of the CJA which govern the pre-contractual summary procedure and which are supposed to “guarantee” the right to introduce a pre-contractual summary procedure as long as the market 'is not signed ... The judge in charge of this case thought for a moment that he could set himself up as a legislator and change the legislative provisions which appear in the Code of Administrative Justice in the name of a general principle, the magistrate in charge of the file has he seems misunderstood the meaning and scope.
Such a solution is serious for the rights of litigants: how can we allow arbitrary and completely subjective limits to be placed on the right for everyone to take legal action when this right results from the law? Since when can the administrative judge free himself from the clear provisions of a law which guarantees the right to an effective judicial remedy as long as the contract is not signed? One can only be particularly shocked by this movement in case law which no longer builds administrative justice guaranteeing rights but administrative justice "ultra protective" of the interests of the administration in conditions that begin to border on absurdity as it becomes excessive .