L’établissement du solde du marché par le juge du référé provision

The establishment of the market balance by the judge of provisional summary proceedings

by Sébastien Palmier on June 28, 2020 | Category: Public markets
L’établissement du solde du marché par le juge du référé provision L’établissement du solde du marché par le juge du référé provision

CE June 10, 2020, Sté BONAUD, req. n ° 425993

In its judgment of June 10, 2020, Sté BONAUD, the Council of State recalls that in application of article 13.4.2 of CCAG-TX, the holder of a public works contract can seize the administrative judge including via a provisional interim payment if, 30 days after the notification of the formal notice to the public purchaser for the establishment of the market statement, the latter still has not produced this account being then specified that the production of said counting during the proceedings does not make the request lose its object 


Teaching n ° 1: The establishment of the market balance by the judge in the event of inertia of the contracting authority

In public works contracts, before 2009, the administrative jurisprudence was constant to consider that in the case where the owner did not establish the general and final account, it belonged to the contractor, before entering the judge, to put the latter on notice to proceed: " Considering [….] That in the event that the contracting authority does not establish the general and final statement it is up to the contractor, before applying to the judge, to put the latter on notice to proceed »(CE December 20, 1989, Gabrion, req.n ° 77754, CE December 20, 2004, Sté Sogea Construction, n ° 244378, CE May 14, 2008, Sté CSM Bessac, n ° 288622).

This rule is now codified by article 13.4.2 of the CCAG-TX which indicates that: if the representative of the contracting authority does not notify the holder, within the deadlines stipulated above, of the signed general statement, the latter will send him a formal notice to proceed. The absence of notification to the holder of the general statement signed by the representative of the contracting authority, within thirty days as from the reception of the formal notice, authorizes the holder to seize the competent administrative court in the event of disagreement.

If the general statement is notified to the holder after referral to the administrative court, the holder is not required, in the event of disagreement, to present the statement of complaint mentioned in article 50.1.1 ".

In its judgment of June 10, 2020, Sté BONAUD, the Council of State recalls the rule posed by article 13.4.2 of the CCAG-TX by specifying nevertheless that the holder of a public works contract can seize the administrative judge there understood via a provisional summary if, 30 days after notification of its formal notice to the public purchaser for the establishment of the market statement, the latter still has not produced this statement being then specified that the production of the said statement during the proceedings does not make the request lose its object. In other words, if the owner produces the account after the referral to the administrative court, the request does not lose its object and it will be up to the judge to establish the balance of the market.

The same solution has already been identified in the area of public contracts for services and supplies to avoid allowing the contracting authority to block payment of sums indefinitely by refraining from notifying the termination statement despite the expiration of the maximum period of two months prescribed by article 34.5 of the CCAG-FCS. In a judgment of May 4, 2011, Sté COVED, n ° 322337, mentioned at the tables, the Council of State thus laid down the rule according to which the contracting partner can seize the administrative judge if, two months after his complaint to the buyer public for the purpose of drawing up the termination statement, the latter did not produce this statement being specified that the production of the termination statement during the proceedings does not cause the request to lose its object: Under article 8 of the general administrative clauses (CCAG) applicable to current supplies and services contracts, the contracting partner may seize the administrative court if, two months after his claim for the establishment of the settlement statement , the public body did not produce this statement. In the event of premature referral to the administrative court, which is not therefore inadmissible on its own: 1) the intervention of the general statement before the expiration of the two-month period results in no need to adjudicate; 2) on the other hand, the intervention of the general statement after the expiration of the period of two months does not allow the decision to be dismissed, such a document not constituting a general statement within the meaning of the provisions of the CCAG »(CE May 4, 2011, COVED Company, n ° 322337).


Lesson 2: The establishment of the market balance by the judge of the provisional summary

Under the terms of article R. 541-1 of the administrative justice code, the interim relief judge may, even in the absence of a request on the merits, grant a provision to the creditor who seized him when the existence of the obligation is not seriously questionable. It may, even ex officio, make the payment of the provision subject to the lodging of a guarantee.

It follows from these provisions that the holder of a public contract may obtain from the interim relief judge that he order the contracting authority to pay provisional compensation and that he is not otherwise bound to seize the contract judge of a claim on the merits. This provision may correspond to all or part of the receivable.

In its judgment of June 10, 2020, Sté BONAUD, the Council of State considers that the referral to the judge of the interim relief provision of conclusions tending to the regulation of the balance of the market or a part of it must be regarded as the referral to the court administrative authority within the meaning of article 13.4.2 of the CCAG applicable to works contracts.


CE June 10, 2020, Sté BONAUD, req. n ° 425993

Considering the following:

  1. The appeals of the company Bonaud present the same questions for judgment. They should be joined to rule by a single decision.
  2. It appears from the documents in the file submitted to the trial judges that the municipality of Hérouville-Saint-Clair entrusted to the company Bonaud lot n ° 13 “flexible floor covering“ for the creation of an educational center, an amount of 143,071.50 euros. The Bonaud company sent the municipality of Hérouville-Saint-Clair, on October 26, 2013, a formal notice to notify it of the general account of the market and to proceed to the payment of the sum of 21,087.48 euros corresponding to this which it considered to be due to it under the balance of this contract. In the absence of a response, the Bonaud company seized, on January 22, 2014, on the one hand, the administrative court of Caen of a request tending that it enjoins the commune to establish the general account of the market , on the other hand, the summary judge of the same court, on the basis of article L. 541-1 of the code of administrative justice, of a request tending to the condemnation of the commune of Hérouville-Saint-Clair to pay him a provision of € 21,087.48. However, by service order of April 18, 2014, the municipality of Hérouville-Saint-Clair notified the company Bonaud of the general account of the market, which revealed, according to it, a balance against the company of 5,263 , 19 euros. The Bonaud company then withdrew its first request, but, by a memorandum of complaint received on May 2, 2014, disputed this count. The request for provision made by the company Bonaud was rejected by an order of the judge of the summary proceedings of the administrative court of Caen of May 15, 2015, confirmed by an order of March 10, 2016 of the judge of the summary proceedings of the administrative court of appeal of Nantes , on the ground that the claim on which it relied could not be regarded as not seriously questionable. The company Bonaud then seized the administrative court of Caen of a request on the bottom tending to the condemnation of the commune to pay him the sum of 21,087.48 euros. By a judgment of June 8, 2017, this court rejected his request. The company is appealing on points of law, under number 425993, against the judgment of October 5, 2018 by which the Nantes administrative court of appeal rejected his appeal request. At the same time, the municipality of Hérouville-Saint-Clair issued, on May 30, 2016, an enforceable title of receipts in the amount of 5,263.19 euros against the company Bonaud. The latter opposed this enforceable title before the Caen administrative court which, by a judgment of June 8, 2017, rejected her request. The company is appealing on points of law, under number 428251, against the judgment of December 21, 2018 by which the Nantes administrative court of appeal rejected his appeal request.
  3. Under the terms of article 13.4.2 of the general administrative clauses (CCAG) applicable to works contracts, in its version resulting from the decree of September 8, 2009: “The representative of the contracting authority notifies the holder of the general account before the later of the two dates below: - forty days after the date of submission to the project manager of the draft final statement by the contractor; - twelve days after the publication of the reference index allowing the revision of the balance. / If the representative of the contracting authority does not notify the holder, within the periods stipulated above, of the signed general statement, the latter will send him a formal notice to proceed. The absence of notification to the holder of the general statement signed by the representative of the contracting authority, within thirty days as from the reception of the formal notice, authorizes the holder to seize the competent administrative court in the event of disagreement. / If the general statement is notified to the holder after the referral to the administrative court, the holder is not required, in the event of disagreement, to present the statement of claim mentioned in article 50.1.1. “.
  4. It follows from these stipulations that when the contracting authority, summoned to notify the general statement, refrains from doing so within the period of thirty days which is allotted to it, the contractor may apply to the administrative court for a request to obtain payment of the sums which he considers due to him in respect of the balance of the contract. In the event that the public person notifies the general statement after the referral to the court, the dispute retains its object and there is cause for the judge to decide it in view of all the elements at his disposal, without the holder of the market is required to submit a complaint against this statement.
  5. Furthermore, under the terms of article R. 541-1 of the administrative justice code: “The judge in summary proceedings may, even in the absence of a request on the merits, grant a provision to the creditor who seized him when the existence of the obligation is not seriously questionable. It may, even ex officio, make the payment of the provision subject to the lodging of a guarantee. “It follows from these provisions that the contractor can obtain from the judge in summary proceedings that he order the contracting authority to pay provisional compensation and that he is not bound, moreover, to seize the judge of the contract of a request to the merits. Consequently, the referral to the judge of summary proceedings, on the basis of articles R. 541-1 and following of the code of administrative justice, of conclusions tending to the payment of a provision on the balance of the market must be regarded as the referral to the court administrative authority within the meaning of article 13.4.2 of the CCAG applicable to works contracts.
  6. To reject Bonaud's requests for appeal, the Nantes Administrative Court of Appeal considered that the provisions of article 13.4.2 of the CCAG applicable to works contracts should be interpreted as allowing the contract holder, when the contracting authority does not refer to the formal notice to notify the general account, to refer to the administrative court conclusions seeking that it draw up the general account, but not conclusions aiming at the settlement of the balance of the market. It thus held that the referral to the judge of interim measures by the company Bonaud on the basis of articles R. 541-1 et seq. Of the code of administrative justice could not be regarded as referral to the competent administrative court within the meaning of article 13.4 .2. It deduced from this that, since the company Bonaud did not comply with the procedure provided for in article 13.4.2, that of article 50.3.2 was applicable, which provides that, for complaints to which the general statement gave rise of the contract, the holder of the contract has a period of six months, from the notification of the explicit decision taken by the representative of the contracting authority on his complaint or of the intervention at the end of a period of forty-five days of an implicit rejection decision, to seize the competent administrative court. Having noted that in the absence of a response to the statement of complaint it had sent to the municipality on May 2, 2014, an implicit rejection decision was born on June 17, 2014 and that the company had until December 17, 2014 to contesting the general statement before the administrative court, she considered that her request, registered on March 30, 2016, was late and, consequently, inadmissible. It follows from what has been said in points 4 and 5 above that in ruling thus, the Nantes Administrative Court of Appeal vitiated the contested judgments from an error of law. Consequently, and without there being any need to examine the other grounds of the appeals, the company Bonaud is entitled to request the annulment.
  7. In the circumstances of the case, the municipality of Hérouville-Saint-Clair should be responsible for paying the sum of 6,000 euros to Bonaud under Article L. 761 -1 of the code of administrative justice. The same provisions prevent an amount from being charged against Bonaud, which is not, in these proceedings, the losing party.

 

DECIDE:
Article 1: The judgments of October 5, 2018 and December 21, 2018 of the Nantes Administrative Court of Appeal are set aside.
Article 2: The cases are referred to the Nantes administrative court of appeal.
Article 3: The municipality of Hérouville-Saint-Clair will pay the company Bonaud a sum of 6,000 euros under article L. 761-1 of the code of administrative justice. The conclusions presented in the same way by the municipality are rejected.