Le référé précontractuel judiciaire

Judicial pre-contractual referee

by gmorales on 8 February 2013 | Category: Folders of the month
Le référé précontractuel judiciaire Le référé précontractuel judiciaire

Le référé précontractuel judiciaire The private-law contracts awarded by the contracting authorities pursuant to Ordinance No. 2005-649 of 6 June 2005 can now be the subject of a pre-contractual summary before the civil court in a procedure as fast and efficient as that which exists before the administrative judge.

The proceedings of the judicial pre-contract injunction have indeed been very recently groomed under the pressure of the Community judicature1 by order n ° 2009-515 of May 7, 2009 then by the decree n ° 2009-1456 of November 27, 2009. The new article 1441-1 of the Code of Civil Procedure specifies that "the requests presented under articles 2 to 20 of the ordinance n ° 2009-515 of May 7th, 2009 relating to the procedures of appeal applicable to the contracts of the public order are formed, educated and judged as in matters of interim relief ". All private law contracts launched as from 1 December 2009 are covered. There is therefore no longer any need for a prior notice and the risk of a signature race which renders this procedure ineffective, unlike its administrative counterpart. Entered on the basis of the provisions of Article L 1441-1 of the CPC, the Judge pre-contractual judicial precept can therefore sanction as a matter of urgency the violation by the contracting authorities of their obligations with regard to advertising and putting in competition since they have injured or are likely to have harmed a candidate company. Still unknown to the majority of companies, ignored since its origin by the doctrine, the pre-contractual judicial referee now offers a new face that has every chance to give it a success identical to that of the pre-contractual administrative summary in matters of public procurement.

A procedure that is as fast and efficient as its administrative counterpart

The private-law contracts governed by the Ordinance of 6 June 2005 are subject to the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures which have constitutional value (Article 6 of the Ordinance - Conseil constitutionnel n ° 2003-473 DC of 26 June 2003 - Act empowering the government to simplify the law) and more specifically to the advertising and competitive bidding procedures set out in decrees n ° 2005-1308 of 20 October 20051 and No 2005-1742 of 30 December 20052. Since it intends to award a private-law contract, the contracting authority must henceforth comply with the advertising and competition rules laid down in those texts and the main principles of the public order. Since the procedure of the pre-contractual injunction is much less usual before the judicial judge, reference is often made to the administrative case law that is in any way transposable because of the similarity of the principles and procedures applicable ... .. But this poses few difficulties. In a judgment dated November 5, 1998, the Tribunal de Grande Instance in Paris has already had the opportunity to recall, in connection with a competition procedure launched by La Poste, that "the conditions for the implementation of 'a tendering procedure must be applied with rigor and precision'. In her commentary on this judgment, the public rapporteur of the Conseil d'Etat, Catherine BERGEAL took advantage of this opportunity to clarify that "the rules are the same before both levels of jurisdiction" before concluding that "the civil judge to the same conception of its powers in the context of the pre-contractual summary that the administrative judge "and that" the civil judge makes the same texts the same interpretation "(BJCP No. 12, p.320). The rules of publicity and competition resulting from national and Community texts must therefore be interpreted in the same way by the administrative judge and the judicial judge (Cass.com 10 July 2009, n ° 09-13871). In these circumstances, the civil pre-contractual judge is perfectly free to accept the lessons of the administrative case law on advertising and competition. And a fortiori, it is also competent to sanction in the same way the consequences of the breaches of the rules of advertising and competition.

The peculiarities of this new remedy

Who can appeal to the Judicial Pre-Trial Judge?

Article 2 of the order of 7 May 2009 recalls that only the candidate who has an interest in concluding the contract and who is likely to be harmed by a breach of the obligations of advertising and tendering procedure to which the awarding of the contract is subject. In this respect, it seems useful to re-establish a historical case-law truth: contrary to what has been read everywhere, it is the Conseil d'Etat that has taken inspiration from the solutions identified by the Judiciary pre-contractual injunction to operate its reversal of jurisprudence with the judgment SMIRGEOMES1. That is to say the reciprocal influence which can exist between the two orders of jurisdiction in this matter.

When can the Judicial Judicial Pre-Trial Judge be seized?

The powers conferred on the judge of article L 1441-1 of the CPC can not be exercised after the signature of the contract. Very recently, in a judgment dated July 10, 2009, Sté GRDF, the Commercial Chamber of the Court of Cassation took care to recall this rule (Cass.Ch.com July 10, 2009, Sté GRDF, n ° appeal: 09 -13871- TGI Nanterre Ord.2 May 2007, SARL IH GROUP, n ° 07 / 01250- TGI EVRY, Ord 9 September 2003, SA RABOT DUTILLEUL Public Works, n ° 03/01088). In order to prevent any risk of race for signature, Articles 4 and 8 of the order of 7 May 2009 indicate that the referral to the judge results in the automatic suspension of the signature of the contract at issue until the notification of the court decision. An enterprise can therefore refer the case to the pre-contractual judge before participating in the procedure if it considers, for example, that the consultation documents prevent it from participating or contain discriminatory provisions; during the procedure before the choice of the successful tenderer or at the end of the procedure after the choice of the successful tenderer but before the signature of the contract to contest, for example, the reasons for rejecting his tender.

Who is the territorially competent judge?

Before 1 December 2009, the appeal was to be brought "before the president of the court of the competent court". This text referred to the rules of jurisdiction of the judicial courts without further specification. The tribunal de grande instance thus very often declined its jurisdiction in favor of the commercial court, which has exclusive jurisdiction over disputes relating to disputes between traders and those relating to acts of commerce (TGI Aix en Provence, Ord.24 December 2008, Sté VALSUD, No. 08/01088). For contracts launched as of 1 December 2009, Article L 211-14 of the Code of Judicial Organization now retains the exclusive jurisdiction of the Tribunal de Grande Instance1. Within this jurisdiction, it is the President of the IMT who has jurisdiction under Article R 213-5-1 of the Code of the Judiciary to hear disputes over the obligations of advertising and competition.

(4) EC 3 October 2008 SMIRGEOMES, req.no. 305420 with the conclusions of the Public Rapporteur Bertrand DA COSTA- See page 17: CA Paris, 25 October 2007, ETDE / CRAMIF, n ° 0543
(5) Article D 211-10-2 of the Code of Judicial Organization determines the seat and jurisdiction of the competent IMTs.

How to seize the civil emergency judge?

In practice, referral to the pre-contractual administrative court is always done by fax because it is always urgent to stop the procedure! Under Articles R. 551-1 and R. 551-2, the author of the administrative pre-contractual injunction is now required to notify his recourse to the contracting authority at the same time as the filing of his application with the Administrative Tribunal. The signature is suspended as from this notification1. No such obligation is provided for the judicial pre-contract injunction. However, in order to stop signing the contract as soon as possible, the plaintiff has every interest in proceeding in two stages. First, fax to the contracting authority the order of the President of the TGI authorizing him to summon an hour by hour or fixed day: the procedure will be suspended from the reception of the fax. Then have the summons delivered by the bailiff to respect the urgency and the date of issue provided for by the order of the President of the IMT. Then, according to Article L 1441-2 of the CPC, the judge is in principle required to give a decision within twenty days of its referral.

What are the means likely to be invoked?

The judge of the pre-contractual judicial recourse can sanction various deficiencies such as those relating to the insufficiencies of the measures of publicity, the discriminatory prescriptions contained in the specifications, the rupture of equality between the candidates during the procedure, the challenge of the criteria of selection applications or offers, or the reasons for rejecting applications or offers. It is likely that the range of means that can be invoked is broader than before the administrative judge. In particular, the possibility of invoking means derived from unfair competition practices by certain competing candidates, cases of sale at a loss, anti-competitive practices or the protection of exclusive rights, such as the administrative judge reluctant to sanction even in the face of the obvious.

What are the powers of the Judge?

The Judge of the Judicial Review may suspend the contract award procedure or the execution of any decision related thereto. It may also annul all decisions relating to the award of the contract or order the removal of clauses or requirements intended to be included in the contract that do not comply with the obligations of advertising and call for competition. The order made by the President of the TGI may be appealed in cassation within 15 days of notification.

(6) Magistrates will no longer take a temporary stay order as was previously the case.

Administrative pre-contractual referral Judicial pre-contractual referral
Applicable provisions Articles L 551-1 to L 551-12 of the CJA.Articles R 551-1 to R 551-6 of the CJA. Article L 1441-1 to L 1441-3 of the CPC.
Articles 2 to 10 of the Ordinance n ° 2009-515 of May 7th, 2009.
Articles 2 and 3 of Decree No. 2009-1456 of 27 November 2009.
Jurisdictions TA territorially competent:
Articles R 312-1 and R 312-11 of the CJA.
IMT territorially competent:
Article D 211-10-2 of the Code of Judicial Organization.
Terms of referral to the judge Phase 1: Referral of the TA by fax.Phase 2: Regularization of the appeal to the TA by letter AR (4 copies) Phase 1 :
Request for authorization to summon for an hour to hour or fixed day from the President of the TGI. (Immediate notification of the order to the defendant by fax) .Phase 2:
Assignment issued by Bailiff and then enrolled with the Registry of the TGI (2 copies).
Prior notification requirement Articles R 551-1 and R 551-2 of the CJA:

Obligation to notify recourse to the contracting authority at the same time as filing the appeal with the TA and in the same way.

YES :

Obligation to have the subpoena delivered to the respondent within the time prescribed by the order of the President of the TGI.

Standing and interest in taking action Article L 551-10 of the CJA:
  • Have interest in concluding the contract;
  • Suspected of being injured by the alleged breach.
Articles 2 and 5 of the Ordinance n ° 2009-515 of May 7th, 2009:
  • Have interest in concluding the contract;
  • Suspected of being injured by the alleged breach.
Time to act Article L 551-1 of the CJA:

Before the conclusion of the contract.

Articles 2 and 5 of the Ordinance n ° 2009-515 of May 7th, 2009:

Before the conclusion of the contract.

Effects of the judge's referral Article L 551-4 and L 551-9 of the CJA:
Automatic suspension of the signature of the contract from the time the TA is submitted.
Articles 4 and 8 of Ordinance n ° 2009-515 of May 7, 2009:

Automatic suspension of the signature of the contract from the referral to the TGI.

Time to rule Article R 551-5 of the CJA:

20 days from the referral.

Article L 1441-2 of the CPC:

20 days from the referral.

Time limit in which the judge can not rule Article R 551-5 of the CJA:

 

  • 16 days from the date of dispatch of the award decision to the economic operators who submitted an application or offer in case of transmission by post

 

  • 11 days from the date of dispatch of the award decision to economic operators who submitted an application or offer in case of transmission by electronic means.
Article L 1441-2-II of the CPC:

 

  • 16 days from the date of dispatch of the award decision to the economic operators who submitted an application or offer in case of transmission by post

 

  • 11 days from the date of dispatch of the award decision to the economic operators who submitted an application or an offer in case of transmission by electronic means
Powers of the judge Article L 551-2 of the CJA:

 

  • Injunction to comply with its advertising and competitive bidding obligations
  • Suspension of the procedure or of any decision relating to the awarding of the contract
  • Cancellation of any decision relating to the awarding of the contract
  • Deletion of clauses or requirements intended to be included in the contract

 

Attention for contracting entities :

 

Article L 551-6 of the CJA:

 

  • Injunction to comply with its publicity obligations and put in competition within a specified period
  • Suspension of any decision relating to the awarding of the contract
  • Provisional penalty
Article 3 of Ordinance n ° 2009-515 of May 7, 2009:

 

  • Injunction to comply with its advertising and competitive bidding obligations
  • Suspension of the procedure or of any decision relating to the awarding of the contract
  • Cancellation of any decision relating to the awarding of the contract
  • Deletion of clauses or requirements intended to be included in the contract

 

Attention for contracting entities :

 

Article 6 of the Ordinance n ° 2009-515 of May 7th, 2009:

 

  • Injunction to comply with its publicity obligations and put in competition within a specified period
  • Suspension of any decision relating to the awarding of the contract
  • Provisional penalty
Contradictory procedure YES :

Article R 551-4 of the CJA.

YES :

Article L 1441-1 of the CPC.

Remedies Article R 551-6 of the CJA:

Appeal in cassation within 15 days of notification of the order.

Article L 1441-1 of the CPC:

Appeal in cassation within 15 days of notification of the order.

Failures already sanctioned by the judge Cass.com December 8, 2009: ADP, Appeal No. 08-21714 :
  1. Power to refer the judge of the pre-contractual judicial injunction by time to hour or by assignment on a fixed day.
  2. Obligation to respect the deadline provided for by the consultation rules to make changes to the specifications.
  3. Possibility of informing candidates during the procedure as well as notification of rejection decisions by electronic means.

Cass.com July 10, 2009, Sté GRDF, appeal n ° 08-13871:

  1. Reminder of the rule of principle that the judge hearing the application for interim measures can only be seized before the contract is signed.
  2. Reminder of the rule according to which the rules of publicity and competition resulting from the national and Community texts are interpreted in the same way by the judicial judge and by the administrative judge.

Cass.com 26 March 2009, La Poste, Appeal No. 08-14534:

  1. Reminder of the rule according to which the judge hearing the application for interim measures does not have the power of annulment in the context of proceedings initiated by a contracting entity.

Cass.com 24 June 2008, SNCF, appeal No. 08-12325 :

  1. Obligation to announce the criteria for judging bids at the advertising stage.
  2. Obligation to indicate the modalities of implementation of the criteria for judging the offers.
  3. Obligation to provide all applicants with the same documents in order to enable them to prepare and submit an offer in strict compliance with the principle of equality between candidates and the principle of transparency of procedures.

CA Paris, October 25, 2007, ETDE company, n ° 05/02543 :

  1. Obligation for the candidate to demonstrate that he has been wronged or is likely to have been wronged by the breach he alleges (rejection for absence).

TCO Lille, Ord. January 14, 2010, Sté SAS Count Real Estate Services, n ° 2009-05999:

  1. Obligation for the candidate to demonstrate that he has been wronged or is likely to have been wronged by the breach he alleges (rejection for absence).

TCO Toulouse, Ord. 1st October 2009, SARL ISA EUROPE, n ° 2009R393:

  1. The Judge of the pre-contractual judicial injunction is competent to control the reasons for rejection of applications and offers.
  2. On the other hand, he is not competent to assess the respective merits of the candidates.

TCO Marseille, Ord. December 30, 2008, Sté ARNAUD SARL, n ° 2008R01060:

  1. No obligation to allot for contracts subject to the order of 6 June 2005 (no equivalent to Article 10 of the CMP).

TGI Paris, Ord. March 26, 2008, STÉ NEUF CEGETEL, Bull n ° 2009 IV n ° 69 :

  1. Prohibition to modify the content of the criteria for judging tenders during the procedure: breach of the principle of transparency of the procedures.
  2. Standing only for the lot for which the candidate has submitted an offer.
  3. The judge hearing the application for interim measures does not have the power of annulment in the context of a procedure launched by a contracting entity.

TCO Paris, Ord. March 12, 2008, APPIA, No. 2008011757:

  1. Obligation to indicate the conditions of participation of the candidates in the notice of advertisement or in the regulation of consultation.
  2. Obligation to indicate the body responsible for review procedures in the advertisement.

TGI Besançon, Ord. December 5, 2006, SARCEDARA SOFTWARE, No. 06-00297

  1. Control of the respect of the equality between the candidates during the course of the procedure.