The direct payment action of a subcontractor: who has to pay?
In this case, the Council of State recalls that the obligation to pay the services performed by the subcontractor is the responsibility of the contracting authority. However, it specifies that the obligation may affect the agent of the owner when he has been entrusted with the exercise of certain duties relating to the services performed by the subcontractor.
Teaching # 1: Laction in direct payment of a subcontractor against the contracting authority
The Council of State recalls the conditions of the direct payment of the subcontractor. It specifies that the service performed by the subcontractor, if it has been accepted »And« whose terms of payment have been agreed "By the contracting authority imposes on the latter an obligation to pay (article 6, law of 31 December 1975 relating to subcontracting). In other words, only these services validated by the owner of works give right to the direct payment by the owner.
The administrative judge has already had the opportunity to insist on the formalism to which the subcontractor has to submit in his request for payment of the benefits realized since the law of December 31, 1975. The Council of State has in the past specified that the subcontractor must first send his request for direct payment to the main contractor including all the supporting documents (EC, 19 Apr. 2017, Dpt Hérault, No. 396174). It is only after the subcontractor can request the direct payment to the client (CAA Douai, Apr. 25, 2019, Entreprise Dufour et al., No. 17DA00023).
The judgment of 18 September 2019 gives the Council of State the opportunity to clarify that in case disagreement over amounts due "And therefore in case of unpaid," the subcontractor may bring an action in direct payment before the administrative judge if the main contract is administrative ". The Conseil d'État also states that this remedy does not incur the quasi-tortious liability of the contracting authority but only consists of obtaining the amounts that the subcontractor considers it to be due ".
Teaching # 2: Laction in direct payment of a subcontractor against the agent of the contracting authority
The particularity of the judgment of 18 September 2019 is that the services performed by the subcontractor were performed under the guidance and responsibility of an agent. The latter acted in the name and on behalf of the client.
In this case, the Council of State recalls that under Article 3 of the Law of 12 July 1985 on the contracting authority and its relationship with the private control, " the judge, seized of an action in direct payment by a subcontractor, may charge the agent the payment of any sums due ". This legislative provision is currently codified in Article L. 2425-5 of the Public Order Code.
This will be the case if the subcontractor demonstrates that the services he has performed and for which he requests payment are assignments that are the responsibility of the agent under the contract he has concluded with the client ".
The Council of State finally specifies that the solution is identical in an appeal before the judge of the interim relief.
Previous litigation procedure
The company Eiffage Energie Guadeloupe has seized, on the basis of Article R. 541-1 of the Code of Administrative Justice, the Judge of the Administrative Court of Guadeloupe of a motion for the joint and several sentence of the inter-municipal syndicate. water supply and sanitation of Guadeloupe (SIAEAG), the Greater South Caribbean agglomeration community (CAGSC) and the municipal company of Saint-Martin (SEMSAMAR) to pay, on the one hand, a provision of 427,124 , 34 euros in respect of the services it provided as part of the construction and connection of the Capesterre Belle-Eau wastewater treatment plant and, on the other hand, a provision of 123,418.01 euros in respect of default interest accrued as of December 31, 2017. By an order no. 1701270 of April 26, 2018, the judge of the administrative court of Guadeloupe rejected the claim.
By an ordinance n ° 18BX01675 of November 9, 2018, the judge of summary of the administrative court of appeal of Bordeaux has, on call of the company Eiffage Energie Systems - Guadeloupe, coming to the rights of the company Eiffage Energie Guadeloupe, condemned jointly the CAGSC and SEMSAMAR to pay a provision of 561 772,96 euros and reformed in that it had contrary to the order of the judge of the summary of the administrative court of Guadeloupe.
Considering the following:
- The appeal of the municipal company of Saint-Martin (SEMSAMAR) registered under No. 425716, on the one hand, and his petition registered under No. 426120, on the other hand, are directed against the same ordinance No. 18BX01675 of November 9, 2018 of the Administrative Court of Appeal of Bordeaux. They must be joined to rule by a single decision.
On the appeal no 425716:
- It appears from the documents submitted to the judge hearing the application for interim relief from the Bordeaux Administrative Court of Appeal that, as part of the construction of a purification plant on the territory of the municipality of Capesterre-Belle-Eau, the trade union intermunicipal water supply and sanitation of Guadeloupe (SIAEAG), now O'diles, concluded on August 1, 2011 a contract of mandate public contracting with the communal company of Saint-Martin (SEMSAMAR). By a contract of 28 November 2011, the group consisting of Getelec TP, Vinci Environnement and Mick Théophile was in charge of the works. Eiffage Energie Guadeloupe, now Eiffage Energie Systèmes - Guadeloupe, has been accepted as a subcontractor for the provision of electricity services and its terms of payment have been agreed. None of the invoices issued by Eiffage Energie Systèmes - Guadeloupe as of June 2013 having been honored, it seized on December 27, 2017 the judge of the summary of the administrative court of Guadeloupe a request tending to obtain the condemned jointly by SEMSAMAR, SIAEAG and the Grand Sud Caribbean agglomeration community (CAGSC), which succeeded SIAEAG in its expertise in water and sanitation, especially for the municipality of Capesterre-Belle-Eau , to pay her a provision of 427,124.34 euros for compensation for the services she provided in connection with the construction and connection of the Capesterre-Belle-Eau wastewater treatment plant and a provision of € 123,418.01 for default interest due on this sum due at December 31, 2017. The company Eiffage Energie Systèmes - Guadeloupe has appealed the order of April 26, 2018 by which the the judge of the administrative court of Guadeloupe rejected his claim, claiming the same provision for the remuneration of benefits and a provision in the amount of 134,648.62 in respect of default interest on 31 May 2018. By an order of 9 November 2018, the judge of summary of the Administrative Court of Appeal of Bordeaux sentenced SEMSAMAR and the CAGSC to pay jointly to this company a provision of 561 772,96 euros and rejected the surplus of the conclusions of the parties . SEMSAMAR appealed against this order as the judge of the Court of Appeal of the Bordeaux Administrative Court of Appeal ordered it to pay jointly and severally with GSCSC such a provision.
- According to Article R. 541-1 of the Code of Administrative Justice: "The judge hearing the application for interim measures may, even in the absence of a claim on the merits, grant a provision to the creditor who seized it when the existence the obligation is not seriously questionable and may even, of its own motion, make the payment of the provision subject to the lodging of a security. "
- According to article 6 of the law of 31 December 1975 on subcontracting: "The direct subcontractor of the contract holder who has been accepted and whose terms of payment have been approved by the master of the contract. book, is paid directly by him for the part of the market which he ensures the execution ".
- It follows from these provisions that the obligation to pay for services performed by an approved subcontractor whose terms of payment have been agreed is the responsibility of the contracting authority. In the event of disagreement over the sums due, the subcontractor may bring an action for direct payment before the administrative court if the main contract is administrative, the object of which is not to pursue his quasi-delictual liability, but to obtain payment of the sums he considers to be due to him.
- In the case where, pursuant to Article 3 of the Law of 12 July 1985 on project management and its relationship with private control, now codified in Article L. 2422-5 of the Code of the public commission, the contracting authority has entrusted to a mandatary the exercise of certain attributions on his behalf and on his behalf, the judge, seized of an action in direct payment by a subcontractor, can put at the the agent responsible for the payment of any sums due if and to the extent that it results from the investigation before him that this payment is among the tasks incumbent on the agent under the contract he has concluded with the client . The same applies when the subcontractor requests, in application of the aforementioned provisions of Article R. 541-1 of the Administrative Justice Code, a provision.
- The judge of the Bordeaux Administrative Court of Appeal pointed out, without distorting the facts submitted to him, that SEMSAMAR, acting as agent of SIAEAG, had accepted the company Eiffage Energie Systèmes - Guadeloupe as a subcontractor and approved its conditions of payment, that the existence of the claim which it held as a result of the performance of the services which had been subcontracted to it was not disputed and that SEMSAMAR was charged, under the terms of the agreement of project management mandate concluded with the SIAEAG, of the regulation of the services carried out by the companies intervening on the building site. It was therefore possible, without making any error of law or incorrectly characterizing the facts submitted to it, by a sufficiently reasoned order, on the one hand, to rule that the obligation relied on by Eiffage Energie Systèmes - Guadeloupe no. was not seriously contestable and, on the other hand, jointly and severally liable to SEMSAMAR the payment of the provision requested.
- It follows from the foregoing that the appeal of SEMSAMAR must be rejected, including its claims submitted under Article L. 761-1 of the Code of Administrative Justice. On the other hand, SEMSAMAR must be paid by Eiffage Energie Systèmes - Guadeloupe and GACSC of € 3,000 each under the same provisions.
Article 1: The appeal of SEMSAMAR is rejected.
Article 2: There is no need to rule on the conclusions of the request of the SEMSAMAR request No. 426120.
Article 3: SEMSAMAR will pay Eiffage Energie Systèmes - Guadeloupe and the Grand Sud Caraïbes agglomeration community the sum of 3,000 euros each under Article L. 761-1 of the Administrative Justice Code.
Article 4: This decision will be notified to Eiffage Energie Systèmes - Guadeloupe, the O'diles union, the Grand Sud Caribbean agglomeration community and the municipal company of Saint-Martin.