The contracting partner of the administration can now contest the decision to terminate his contract
The Council of State now authorizes the contracting partner of the administration to challenge the decision to terminate his contract; on the other hand, to request the resumption of contractual relations within a period of two months from the notification of the decision. The judge checks whether the termination measure is vitiated by defects relating to its regularity or its merits.
Hypothesis n ° 1 : the decision to terminate is tainted with defects in its regularity. In this case, the judge will determine whether the alleged defects are likely to give entitlement to compensation.
Hypothesis n ° 2 : the decision to terminate is tainted with defects in its merits. In this case, the judge will determine whether the alleged defects are likely to give right to the resumption of contractual relations from a date he will also set with the right to compensation for the period unduly terminated.
In order to determine whether the request for resumption of contractual relations should be granted, it is for the contract judge to assess, having regard to the gravity of the defects found and, where appropriate, that of the applicant's failings. its contractual obligations if such recovery is not such as to cause an excessive prejudice to the general interest and, having regard to the nature of the contract in question, to the rights of the holder of a new contract the conclusion of which would have been made necessary by the disputed termination
In both cases, the contracting partner may submit an application for suspension of the termination decision in accordance with article L 521-1 of the Administrative Justice Code. In this case, the judge of the interim suspension will have to determine his decision according to the two conditions specific to the interim suspension, namely the urgency of the situation and the existence of a serious means on the validity of the termination measure.
Condition # 1: the emergency condition
The Conseil d'Etat considers that the judge hearing the application for interim measures must assess the urgency, taking into account both the serious and immediate breaches that the termination in question is likely to bring to a public interest or to the interests of the applicant, in particular to the situation the financial interests of the latter or in the exercise of its activity, on the other hand the general interest or the interest of third parties, in particular the holder of a new contract whose conclusion would have been made necessary by the termination in dispute, who can focus on the immediate execution of the termination measure
Condition n ° 2: the condition relating to the existence of a serious means
In order to determine whether a ground of appeal is capable of creating a serious doubt as to the validity of the contested measure of annulment, the President of the Court of First Instance must assess whether the defects alleged appear to be of sufficient gravity to lead to the resumption of the contractual relations and not to the only compensation for damage resulting, for the applicant, from the cancellation