Can the judge of the pre-contractual injunction order the cancellation and / or the complete resumption of the procedure whatever the breach invoked?
In a decision of the Conseil d'Etat of 12 January 2011, the Département du Doubs, the Conseil d'Etat considers that the powers of annulment of the judge of the pre-contractual summary proceedings are limited to the stage of the procedure to which the deficiencies of advertising and implementation competition were committed:
" Considering, however, in the second place, that in view of the failure thus noted, which related to the sole phase of selection of tenders by the contracting authority, it was for the judge hearing the application for interim relief to annul the procedure only as from the review of these offers; that as a result, the judge of interim relief has committed an error of law in canceling all of this procedure and enjoining the DEPARTMENT OF DOUBS, if he intended to continue, to resume it in full; that the DEPARTMENT OF DOUBS is therefore entitled to request the annulment of the order of the judge of the Besançon Administrative Court for interim relief in so far as it annulled the procedure at a stage prior to the selection phase of the tenders ". In other words, three hypotheses can now be considered:
- either the breaches relate to the advertising stage or the discriminatory requirements contained in the specifications and in this case, the pre-contractual judge may cancel the entire procedure;
- either the deficiencies relate to the stage of the admission of the candidatures and in this case, the judge of the pre-contractual recourse can not cancel the procedure that from the examination of the candidatures;
- or finally, the deficiencies relate to the stage of the selection of the offers and in this case, the pre-contractual judge can only cancel the procedure as from the examination of the offers.
To see the stop: CE 12th January 2011, Department of Doubs, n ° 343324