Les règles d'indemnisation à respecter en cas de résiliation unilatérale du cocontractant public

Compensation rules to be respected in case of unilateral termination of the public contracting party

by gmorales on 4 May 2011 | Category: Public markets
Les règles d'indemnisation à respecter en cas de résiliation unilatérale du cocontractant public Les règles d'indemnisation à respecter en cas de résiliation unilatérale du cocontractant public

CE 4 May 2011, CCI Nîmes, req.n ° 334280

If, in the context of a unilateral termination for reasons of general interest, the contract may provide that the private contracting party will be compensated for less than the actual loss suffered, the prohibition on public authorities to grant bene- it is the same when the other party is a public person.

" Considering, it is true, that under the general rules applicable to administrative contracts, the granting authority may always, for reasons of general interest, terminate a concession contract, subject to the concessionary indemnity rights and that the the extent and the terms of such compensation may be determined by the terms of the contract, provided that it does not result, to the detriment of a public body, a manifest disproportion between the compensation so fixed and the amount of the loss resulting for the concessionaire from the expenses he incurred and the gain from which he was deprived; that this principle, stemming from the prohibition on public persons from giving gifts, does not apply to private persons, but there is nothing to prevent such stipulations from providing for compensation less than the amount of the loss suffered by the private contractor of the administration; that, therefore, in relying, to rule on the conclusions of the CHAMBER OF COMMERCE AND INDUSTRY OF NIMES, UZES, BAGNOLS, LE VIGAN relating to the compensation of the value of the investments financed on its own funds, on a principle that the contractual stipulations could not have the effect, irrespective of the status of the contracting party of the administration, either to exclude any compensation from it, or to provide compensation manifestly disproportionate to the damage suffered, the court administrative appeal of Marseilles has made an error of law;

Considering, however, that the Chamber of Commerce and Industry is a public institution; that the contract which it subscribed could not, therefore, in application of the principle enunciated above, provide a compensation manifestly disproportionate compared to its prejudice ".