The onerous nature of public procurement
According to its classic definition, a public contract is a contract, that is, an agreement by which one or more persons bind themselves to one or more others to give, to do or not to do something, which must meet the needs of the administration for supplies, services and works.
Qualification under the prism of the onerous nature of the contract
A key element in the definition of the public contract
The qualification of a public contract, within the meaning of Article 1 of the Code des Marches Publics, entails the quality of an administrative contract in application of the provisions of Article 2 of Law No. 2001-1168 of 11 December 2001, known as the "MURCEF" law. ", According to which" contracts awarded under the Code des Marches Publics are in the nature of administrative contracts ". This legislative qualification strongly marks the legitimacy of the administrative nature of the public contract, putting an end to the doctrine and jurisprudence provided, particularly in the field of insurance contracts.
According to Article 1, 'public contracts are contracts concluded between the contracting authorities (...) and public or private economic operators for consideration for their needs in terms of works, supplies or services'.
In other words, a contract without financial compensation, carried out for free, is never a public contract, because the onerous nature of the contract induces the idea of a cost burden on the public purchaser. Any service involving one euro obliges the public purchaser to respect the main principles of the public order.
An evolutionary notion
The onerous nature involves financial compensation from the public purchaser. The onerous character therefore concerns what is actually a price, but also what could have been one if the service had been presented to the competition. The price materializes, classically, the amount of the contract. This is generally the payment of a cash sum in exchange for the performance of a service. Nevertheless, in the absence of a payment, other forms of remuneration exist, where the onerous nature may as well result from the abandonment by the public purchaser of a possibility of receipt related to the performance of the contract. The most cited example is that of street furniture markets (CE, ass., 04/11/2005 Jean Claude DECAUX, n ° 247298) where a company installs street furniture without the city paying it. In return, the municipality authorizes the company to exploit, on an exclusive basis, a part of the street furniture by exempting it from royalty for occupation of the public domain. The advantage granted to the company is the onerous counterpart of the service.
The onerous nature is also manifested through agreements relating to the prospection of advertising advertisers for the financing of a municipal bulletin (EC, 06/11/2009, Société Prest'action, application number 297877), a contract relating to the organization and management of a music festival for a price in the abandonment of festival revenue and the payment of an annual sum (EC, 23/05/2011, Municipality of Six- Fours-les-Plages, application No 342520), or of the authorization given to the contracting party to sell the sand or gravel taken from a river which he has cleaned up (EC, 22/02/1980 , SA Modern Sablières d'Aressy, No. 11939).
More recently, public contracts have been launched, called "cost killing", aimed at the search for a reduction in the costs of a public person by auditing and consulting firms (for example in the field of taxation) which are remunerated on a percentage basis. obtained on the actual amount of savings, thus representing the onerous nature of the service. For the Court of budgetary and financial discipline (CDBF), the convention "(...) was concluded for a fee by the public institution to meet its own needs; that its price defined by the mission order signed concomitantly with the convention was fixed in proportion of the savings likely to be realized and, thus, was determinable; that, in view of its amount and purpose, that convention constituted a public contract falling within the scope of the Code des Marches Publics'. In this case, the Court was seized of the case of a director of a retirement home who was accused of having entered into a contract, without publicity or competitive bidding, aimed at reducing the employers' and tax burdens borne by the employer. Establishment (CDBF, 11/10/2013, Champcevrais Inter-communal Retirement Home, No. 191-701).
Community case-law also states that only a contract concluded for consideration may constitute a public contract covered by Directive 2004/18. The onerous nature of the contract is identified if it has a direct economic interest for the contracting authority (CJUE, 25/03/2010, case C-451/08 Helmut Müller v. Bundesanstalt für Immobilienaugaben).
Problem of the onerous nature of the administrative contract
According to the Dispute Tribunal, a contract by which a tourist office, with the status of public industrial and commercial establishment (EPIC), entrusts, on an exclusive basis, the edition of a tourist guide, written by him, to a private company, in return for the exploitation of advertising by the sale of space to advertisers, is not a public contract, having regard to its purpose and its financial balance, but a private law convention (TC , 07/04/2014, SEVP c / Tourist Office of Rambouillet and Sté Axiom-graphic, n ° 3949).
This judgment gives a strict interpretation of the notion of onerousness and reduces the interpretation of the concept of onerousness by the administrative court, for which the absence of payment of a sum of money by a waiver of revenue is considered by the administrative judge as being onerous (EC, Ass., 04/11/2005 Jean Claude DECAUX, application No. 247298). However, the Court of Cassation ruled in 2004 that municipal information constitutes a public service (Cass., 16/11/2004, City of Meaux c / CIEP, No. 0210628).
Would the judgment of the Dispute Tribunal have been made differently if the object of the contract had also involved the drafting of the guide? Does this decision have the implicit consequence of interpreting differently the decisions made by the public purchaser, depending on whether it is a local authority or an EPIC?
In spite of these questions, this judgment by the conflict court is part of the introduction into domestic law of the Community concept of service concessions.
A fragile criterion
The onerous nature of the public contract is a notion distorted by different national interpretative approaches to the law and by the broadening of the notion of service concessions driven by European directives. According to the administrative court, a street furniture contract is neither a public service delegation agreement (TA Paris, 24/04/2009, CBS Outdoor, no. 0516044 / 6-1), nor a public contract, but may constitute a simple contract of temporary occupation of the public domain (CE, 15/05/2013, City of Paris c / company JC Decaux, n ° 364593).
In the present case, the City of Paris had concluded an agreement concerning the installation and operation of so-called "Morris columns" columns and poster poles intended for the advertising of cultural, economic, social and cultural events and performances. sports.
The Council of State considers that the convention can not be regarded as including a price paid because the company pays a royalty to the city. Indeed, while the cultural allocation of street furniture does indeed correspond to a general municipal interest of promotion of cultural activities, "it does not concern activities carried out by the municipal services or carried out on their behalf". Since it is not concluded to meet the needs of the community, the convention is not a public contract.
However, in 2005 (EC, Ass., 04/11/2005 Jean Claude DECAUX, No. 247298), the Conseil d'Etat considered that the purpose of the contract was to meet the needs of the community in terms of information to the inhabitants and the protection of transport users, and that the advantage granted to the company constituted the onerous counterpart of the service. In the same way, the contract concluded by a hospital with a provider for the provision of telephone, television and internet access subscription payments does not constitute a public contract (EC, 07/03/2014, University Hospital of Rouen, n ° 372897).
This jurisprudential stance positions the public purchaser to face a double stumbling block: on the one hand, the notion of a public contract confronted with problems of legal qualification, which conditions the application of particular legal regimes (DSP, concession of works, public ownership). ...) with the penal consequences attached to it (crime of favoritism), on the other hand, to apprehend the definition of the public market to be able to identify and distinguish a public contract of services or works of a concession of services or works, subject to a specific regime provided for by the European Directive 2014/23 / EU of 26 February 2014. Article 5 states that a concession is "a contract concluded in writing and for a consideration by one or more contracting authorities or contracting entities entrust the execution of works or services to one or more economic operators, the the right to exploit the works or services which are the subject of the contract, or in this right accompanied by a price ".
Article written by Fabrice Strady, Head of Administrative Services, Public Procurement and Legal Affairs of the City of Royan - Public Procurement Consultant - firstname.lastname@example.org