Grant agreements do not rhyme with administrative contracts!
The Council of State recalls that the grant agreement is not an administrative contract, but a unilateral administrative act, so that its award can not be the subject of a pre-contractual summary procedure, or an appeal. challenge to its validity
For the implementation of public policies on their territory, local authorities have, for a long time, found strong allies in the person of associations and societies. Working in synergy, the administrations pay, quite classically, grants to their private partners to help them accomplish their missions. By way of illustration, it is quite typical for a municipal council to pay an annual subsidy to sports clubs and cultural associations, to name a few.
In this case, the deliberative assembly of the municipality of Mont-de-Marsan decided, in a deliberation of December 19, 2014, to allocate to the company The Club a subsidy of a sum of 1 500 000 €. The Royal Cinéma company, accompanied in that sense by a citizen, has submitted to the judge of the legality of the Administrative Court of Pau an action in excess of power to annul the deliberation attributing the subsidy and authorizing the mayor to sign it. Unsuccessful at first instance in a judgment of 29 December 2015, the applicants appealed to the judge of the Bordeaux Administrative Court of Appeal. The latter, on the basis of Article L. 113-1 of the Code of Administrative Justice, decided, before deciding on the case, to submit a request for an opinion to the Conseil d'État. Specifically, the appeal judge asked the Palais-Royal whether it was necessary to apply the case law Department of Tarn-et-Garonne (EC, Ass., April 4, 2014, No. 358994) and therefore consider that the convention of grant is an administrative contract, or, on the contrary, rule in the form of excess of power and consider that it is the deliberation which must be annulled.
Teaching 1: pedagogical reminder of the identification of a grant
In order to determine what a subsidy is, the opinion of the Council of State starts with the explanation of the provisions of article 9-1 of the law of 12 April 2000 on the rights of citizens in their relations with the administrations. According to this legislative provision, grants are "optional contributions of any kind, valued in the award act, decided by the administrative authorities [...], justified by a general interest and intended to carry out an action or from an investment project, to the contribution to the development of activities or the overall financing of the activity [...] ". What needs our attention is the optional dimension of granting a grant.
Teaching # 2: the grant agreement or confusion with the administrative contract
Article 10 of the aforementioned Act of 12 April 2000 stipulates that, depending on the amount, a grant agreement must be signed between the public body and the recipient. Thus, as soon as the amount exceeds the sum of € 23,000, which was the case in the present case, an act which may at first sight look like a contract must be signed between the parties concerned. It is on this point that the difficulties crystallize and gave rise to the request for an opinion of the Bordeaux Administrative Court of Appeal.
For the Council of State, the grant agreement is not an administrative contract, but a unilateral administrative act. To justify this, the highest administrative court specifies that it is the administration that imposes alone the rules contained in the convention, these being, logically, not negotiated between the interested parties. In other words, it is the decision to allocate the grant that will create the rights for the beneficiary, and not the agreement itself, which contains the recommendations that must be respected by the entity that will have access to the grant. amount of the grant. Consequently, if the agreement in question is not a contract, the legal remedies challenging the validity of the administrative contracts, brought by a party or a third party are necessarily closed. It is thus the judge of the legality, through the appeal for excess of power contesting the legality of the decision of the municipal council which is competent. The Council of State also recalls that the litigation indemnity can be brought.
Teaching n ° 3: the possibility of introducing a suspension
In its opinion, the highest administrative court pedagogically recalls that if the appeal for abuse of power is open, there is nothing to prevent the applicant from bringing a parallel suspension of proceedings, the provisions of which are contained in Article L. 521 -1 of the Administrative Justice Code. According to this article, the judge can order the suspension of the administrative act in question "when the urgency justifies it and that there is mention of a means of creating, in the state of the investigation, a doubt seriously as to the legality of the decision ". It seems to us particularly useful for the applicant who wishes to challenge the legality of a decision allocating a grant to mobilize the appeal in urgency.
Considering the following procedure:
By a judgment n ° 16BX00581 of February 8, 2019, recorded on February 15, 2019 at the litigation secretariat of the Council of State, the Administrative Court of Appeal of Bordeaux, before ruling on the request of the joint stock company simplified Royal Cinema and of MC..D ... tending to the annulment of the judgment n ° 1500281, 1500363, 1500364, 1501380, 1501446 of the 29th of December 2015 of the administrative court of Pau as it rejected their requests tending to the cancellation for excess of power of the deliberation of December 19th, 2014 of the municipal council of Mont-de-Marsan attributing to the society the Club a subsidy of 1 500 000 euros and authorizing the mayor to sign the convention defining the modalities of attribution of this subsidy as well that the cancellation of this agreement signed on January 6, 2015, decided, pursuant to the provisions of Article L. 113-1 code administrative justice, to transmit the file of this application to the Council of State, in so questioning the following question:
The litigation procedure opened by the decision of 4 April 2014 of the Conseil d'Etat, ruling in litigation, department of Tarn-et-Garonne, No. 358994, to any third party to an administrative contract liable to be harmed in its interests sufficiently direct and certain by its execution or its clauses, which makes it admissible to form before the judge of the contract an appeal of unlimited jurisdiction challenging the validity of the contract or of some of its non-regulatory clauses which are divisible, it applies when the dispute relates to an agreement for the purpose of granting a subsidy at the request of the beneficiary and for which the conditions of attribution and the terms of payment are unilaterally determined by the decision or the preliminary deliberation of a collectivity public '
MAKES THE FOLLOWING NOTICE
1. According to article 9-1 of the law of 12 April 2000 on the rights of citizens in their relations with the administration: "For the purposes of this law, subsidies are voluntary contributions of any kind, valued in the act of allocation, decided by the administrative authorities and the bodies responsible for the management of a public industrial and commercial service, justified by a general interest and intended for carrying out an action or a project of investment, the contribution to the development of activities or the overall financing of the activity of the beneficiary private-law body These actions, projects or activities are initiated, defined and implemented by the beneficiary private-law bodies. These contributions can not constitute compensation for individualized services that meet the needs of the authorities or bodies that grant them ".
2. According to Article 10 of the same law: "(...) ./ The administrative authority or the body responsible for the management of a public industrial and commercial service referred to in the first paragraph of Article 9-1, which allocates a subsidy, must, where the subsidy exceeds a threshold defined by decree, enter into an agreement with the beneficiary private-law body defining the purpose, amount, payment terms and conditions of the grant. use of the subsidy granted This provision does not apply to organizations receiving subsidies for the improvement, construction, acquisition and improvement of social rental housing provided for in Book III of the Construction and Building Code. 'dwelling'. Under Article 1 of the Decree of 6 June 2001 adopted for the application of Article 10 of the Law of 12 April 2000 on the financial transparency of aid granted by public entities, the obligation to conclude a convention applies to grants whose annual amount exceeds the sum of 23,000 euros.
3. A decision to award a grant is a unilateral act that creates rights for the benefit of the recipient; such rights are thus created only to the extent that the beneficiary of the subsidy complies with the conditions laid down for its granting, that those conditions derive from the norms governing it, that they were laid down by the public person in his decision to whether they have been the subject of an agreement signed with the beneficiary, or that they implicitly but necessarily derive from the very purpose of the grant.
4. Independently of the indemnity actions that may be brought against the public body, the remedies relating to a subsidy, whether they relate in particular to the decision to grant it, in whatever form, to the conditions laid down its granting by this decision or by the agreement concluded pursuant to the abovementioned provisions of the law of 12 April 2000, or the decisions of the public body to which it may give rise, in particular the decisions by which the public person modifies the amount the conditions for granting the grant, ceasing to pay or requesting repayment of sums already paid, may be brought only before the judge of the excess of power, by the beneficiary of the grant or by third parties who have of an interest that gives them standing. Such an action for excess of power may be accompanied by an application for suspension of the contested decision, submitted on the basis of Article L. 521-1 of the Code of Administrative Justice.
5. This notice will be notified to the Bordeaux Administrative Court of Appeal, the Minister of the Interior, the municipality of Mont-de-Marsan, the company Le Club, the joint stock company Royal Cinema, to MC..D ..., to Mrs. B ... A ..., to the association "Un Marsan otherwise" and to the president of the National Center for Cinema and Animated Image.