Le comportement de l’administration peut valoir résiliation tacite du marché public !

The behavior of the administration may be worth tacit termination of the public market!

by Sébastien Palmier on May 23, 2019 | Category: Folders of the month
Le comportement de l’administration peut valoir résiliation tacite du marché public ! Le comportement de l’administration peut valoir résiliation tacite du marché public !

CE 27 February 2019, Department of Seine-Saint-Denis, req. No. 414114

The Council of State decides on the identification of a public contract tacitly terminated and on the office of the judge of appeal seized of a request for resumption of the contractual relations.

Teaching n ° 1: The behavior of the administration may be worth tacit termination of the public contract 

The competence of the contracting authority to unilaterally terminate a contract is conventional (EC, Ass., 2 May 1958, Distillery of Magnac LavalLebon 246). In order to guarantee the specific features of public law, the contracting authority may terminate the execution of its contract for the future. General interest obliged, the public person must compensate his co-contractor at the risk of tainting the termination of illegality. As one of the general rules, unilateral termination nevertheless questions the respect of the binding force of the contract. In order to prevent it being dismissed too easily, the contract judge found it necessary that the termination should result from an express decision (CAA, Versailles, 18 April 2013, Getpartner International, req. No. 11VE02414).

In its judgment of 27 February 2019, after recalling the principle of express termination, the judge specifies that the tacit termination will be recognized when the conduct of the public body undoubtedly reveals that it has "unequivocally" terminated the relations. contractual. To demonstrate this, the Palais-Royal gives us clues that will be appreciated strictly: did the public person take steps to satisfy his needs during the period in which he considers that he has terminated the contract? Has the public person made a decision that makes it impossible to continue the performance of the contract or that prevents the continuation of the contract by the other party? In this case, the company that was the owner of the contract was liquidated in 2013 and the contract was taken over by another company. However, as of that date, the department has ceased all orders and has concluded a contract identical to that subject of the appeal, with another company. Thus, the Council of State considers that the behavior of the contracting authority certainly reveals that it intended to tacitly terminate the public contract at issue.

Lesson 2: Clarification of the resumption of contractual relations in the context of appeal proceedings

If this litigation is born with " Béziers II (EC, sect., 21 March 2011, no. 304806), and specified by Isola 2000 development company (EC, 23 May 2011, application No. 323468), it is clear that it is the judgment of 27 February 2019 which specifies the contours of the office of the judge on appeal. Indeed, the Council of State specifies that the resumption of the contractual relations in appeal can not be ordered when the administrative court rejected the request and that, "after its judgment, the end of the contract is reached before the seizure of the judge d appeal or during the appeal. Similarly, if the court has ordered the resumption of contractual relations but the judgment has not been executed and the term of the contract is reached before the referral to the appeal judge, the Court must, in both cases, find the impossibility of recovery and that the dispute has no or no object. On the other hand, in the event of execution of the judgment, the judge of appeal will have to appreciate "the validity of the resumption of the contractual relations".


CE 27 February 2019, Department of Seine-Saint-Denis, req. No. 414114

 

Considering the following:

  1. It appears from the documents in the file submitted to the Court that the Seine-Saint-Denis department and the Ethesia company entered into a four-year purchase order contract on 27 September 2011 for the maintenance of Heating, air-conditioning and domestic hot water systems in social buildings and other departmental properties, with a guaranteed minimum amount of € 1,000,000. Following the judicial liquidation of Ethesia, the company was sold to CAPCLIM pursuant to a judgment of the commercial court of March 4, 2013. The company CAPCLIM, became holder of the contract concluded between the department and the company Ethesia, presented to the department of Seine-Saint-Denis an invoice dated March 25, 2013 for a total amount of € 54,172.96 including tax for maintenance and maintenance services for the period 1stJanuary to March 31, 2013, which the department did not pay. By letter of May 16, 2013, the company CAPCLIM unsuccessfully asked the department of Seine-Saint-Denis to resume contractual relations, to sign an endorsement acknowledging the transfer of right for its benefit from the market and requested payment of the aforementioned invoice. In a judgment of April 29, 2014, the administrative court of Montreuil, after having noted that the contract had been terminated irregularly, on the one hand, canceled the implicit refusal of the department of Seine-Saint-Denis to resume contractual relations with the company CAPCLIM, on the other hand, enjoins the department to resume contractual relations with the company, to sign a transfer rider within the two-month period from the notification of the judgment and, finally, rejected the indemnification the company CAPCLIM. By the contested judgment of 6 July 2017, the Administrative Court of Appeal of Versailles, seized of an appeal of the company and an incidental appeal of the department, condemned the department of Seine-Saint-Denis to pay to the company CAPCLIM the sum of 137 163,07 €, annulled the judgment of the administrative court of Montreuil in that it has contrary to this condemnation and, finally, rejected the conclusions of incidental appeal of the department tending to the cancellation of judgment in so far as he ordered him to resume contractual relations.
  2. It is the responsibility of the contract judge, seized by a party to a full-fledged appeal contesting the validity of a termination measure and tending to the resumption of contractual relations, when he finds that the measure is vitiated by defects relating to his whether it is appropriate to grant, in so far as it is not devoid of purpose, the request to resume contractual relations, from a date on which it set aside, or dismiss the appeal, by holding that the defects found are only likely to give the applicant a right to compensation. In the event that he grants the request for the resumption of the contractual relations, he may decide, if conclusions are formulated in this sense, that the applicant is entitled to compensation for the damage which he has, if any, caused termination, in particular due to non-performance of the contract between the date of termination and the date fixed for the resumption of contractual relations.
  3. 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, as well as the reasons for the termination, if such a resumption 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 a new contract the conclusion of which would have been made necessary by the termination in dispute.

 On the appeal of the department of Seine-Saint-Denis:

  1. In the first place, the Administrative Court of Appeal of Versailles, which did not have to answer all the arguments put forward by the department of Seine-Saint-Denis in support of its argument contesting the existence of a tacit termination of the contract binding him to CAPCLIM did not vitiate his judgment of insufficient motivation.
  2. Second, apart from the case where it is pronounced by the judge, the termination of an administrative contract results, in principle, from an express decision of the co-contracting public entity. However, in the absence of a formal decision to terminate the contract made by the co-contracting public entity, a contract must be regarded as tacitly terminated when, by its conduct, the public body must be regarded as having unequivocally terminated to contractual relations. The judges of the merits appreciate, under the sole control of an error of law and a distortion of the documents of the file by the judge of cassation, the existence of a tacit termination of the contract in the light of all the circumstances in this case, in particular the steps taken by the public body to satisfy the needs concerned by other means, the period during which the public person has ceased to perform the contract, given its duration and its term or the adoption of a decision of the public body that has the effect of making it impossible to continue the performance of the contract or to hinder the performance by the contracting party of its contractual obligations.
  3. It is apparent from the statements in the judgment under appeal that, to consider that the contract between the Seine-Saint-Denis department and Ethesia, sold to CAPCLIM, was the subject of a tacit decision to terminate, the administrative court of appeal of Versailles noted that the department had not made new orders for the year 2013 from the acquisition by the company CAPCLIM of the company Ethesia and had concluded with another company the 9 July 2013 a maintenance contract with the same purpose as the disputed market. It follows from what has been said in the preceding paragraph that the Court did not err in law on the basis of such circumstances, which are among those which make it possible to establish that the public person has terminated the unequivocally, to a contract, and in view of these, that the disputed market had been tacitly terminated.
  4. Third, contrary to what is contended, the Versailles Administrative Court of Appeal did not, to dismiss the Department's cross-appeal seeking the quashing of the judgment in so far as it ordered him to resume the proceedings. contractual relations, deduces the illegality of the decision of tacit termination of the relevant market of the absence of prior notification of this decision of termination to the company CAPCLIM.
  5. Fourthly, the company CAPCLIM asked, whereas the contractual relations had not been taken back, that the department of Seine-Saint-Denis is condemned to compensate it for the loss of profit which resulted for her from the irregular termination of the market. To assess this shortfall, the Versailles Administrative Court of Appeal referred to the minimum amount of the contract concluded, to which it applied the net margin rate of CAPCLIM on comparable public markets. In retaining, on the basis of the documents produced as a result of an inquiry filed with the parties, a rate of 23 %, the court made a sovereign appreciation of the facts which is free from denaturing. The court also made no mistake of law by not ordering the expertise measure requested by the department.
  6. Lastly, however, when an administrative tribunal has rejected a request for the resumption of contractual relations and that, after its judgment, the term of the contract is reached before the referral to the judge of appeal or during the proceedings of the court of appeal. appeal, the court seized must find that the contract is no longer likely to be performed and that the dispute has no or no object. Similarly, if the court ordered the resumption of contractual relations but his judgment was not executed and the term of the contract is reached before the referral to the appeal judge or during the appeal, the court must also find that it is no longer likely to be executed and that the dispute has no or no purpose. On the other hand, if the judgment ordering the resumption of the contractual relations has been executed, the appellate judge must rule on the motion by assessing the validity of the resumption of the contractual relations ordered by the court until the end of the contract.
  7. It is clear from the wording of the judgment under appeal that, on 27 September 2015, the term of the disputed contract was terminated after the referral to the appellate court and was exceeded on the date on which the administrative court of the Versailles Appeal has ruled and, secondly, that the judgment of 29 April 2014 of the Administrative Court of Montreuil, ordering the resumption of contractual relations, had not been executed on the date of the judgment under appeal. It follows from what has been said in the preceding paragraph that, in those circumstances, it was for the Court to find that the judgment of 29 April 2014 ordering the resumption of contractual relations was no longer capable of being executed and that the the Seine-Saint-Denis department had become irrelevant as they challenged the order to resume contractual relations. It follows that the Versailles Administrative Court of Appeal erred in law in rejecting as unsubstantiated, and not as devoid of purpose, the Department's findings of an incidental appeal contesting the resumption of contractual relations with the company CAPCLIM ordered by the administrative court.

 On the cross-appeal of CAPCLIM:

  1. Contrary to what CAPCLIM asserts, which had to prove the realization of the benefits for which it asked for payment, the court noted that the invoice C 213.03.027 of 25 March 2013 did not meet the conditions the forms provided for in the special clauses applicable to the contract in dispute and did not allow the invoiced services to be identified, neither erred in law nor distorted the documents in the file before it. Consequently, CAPCLIM is not justified in seeking the annulment of the judgment it is attacking insofar as it dismissed its claim for compensation in the amount of € 54,172.96, tax incl. the services billed on March 25, 2013.
  2. It follows from all the foregoing that the judgment under appeal must be set aside in so far as it dismissed the Seine-Saint-Denis department's cross-appeal findings contesting the order for the resumption of contractual relations.
  3. It is appropriate, in the circumstances of this case, to settle, to that extent, the case on the merits pursuant to the provisions of Article L. 821-2 of the Code of Administrative Justice.
  4. It follows from the investigation that the stipulated term of the contract in dispute, set at 27 September 2015, is exceeded and that the judgment of 29 April 2014 of the Montreuil Administrative Court, ordering the resumption of contractual relations, has not been executed. It follows from what has been said in point 9 of this decision that this judgment can no longer be executed and that, in those circumstances, the Seine-Saint-Denis Department of Justice's incidental appeals for annulment of this judgment insofar as he ordered him to resume contractual relations with CAPCLIM have become moot. There is therefore no need to decide.

 The conclusions submitted under the provisions of Article L. 761-1 of the Administrative Justice Code:

  1. In the circumstances of this case, it is not appropriate to grant the submissions made by the Seine-Saint-Denis department and CAPCLIM under Article L. 761-1 of the Code of administrative justice.

 

Decide:

Article 1st : The judgment of July 6, 2017 of the Administrative Court of Appeal of Versailles is annulled in so far as it rejected the conclusions of incidental appeal of the department of Seine-Saint-Denis tending to the cancellation of the judgment of 29 April 2014 of the Administrative Court of Montreuil as he ordered him to resume contractual relations with the company CAPCLIM. Article 2: It is not necessary to rule on the request of the department of Seine-Saint-Denis for the annulment of the judgment of 29 April 2014 of the Administrative Court of Montreuil as he ordered him to resume contractual relations with CAPCLIM.

Article 3: The rest of the appeals of the Department of Seine-Saint-Denis is rejected.

Article 4: The conclusions of CAPCLIM's cross-appeal are dismissed.

Article 5: This decision will be notified to the department of Seine-Saint-Denis and to CAPCLIM.