L’évolution de l’accès des tiers au prétoire du juge du contrat : quel paradoxe !

The evolution of third party access to the courtroom of the contract judge: what a paradox!

by Sébastien Palmier on June 26, 2019 | Category: Folders of the month
L’évolution de l’accès des tiers au prétoire du juge du contrat : quel paradoxe !  L’évolution de l’accès des tiers au prétoire du juge du contrat : quel paradoxe !

After more than a century, it is tempting to assert that the Martin jurisprudence (EC, 4 August 1905: Rec., EC 1905, pp. 749, J. Romieu) is dead and well buried. In the same vein, a slightly naive view of the state of the contentious administrative contracts would necessarily lead to welcoming the massive opening of legal remedies relevant to all third parties. However, five years after the highest administrative court opened the courtroom access of the judge of the validity of the administrative contract "to any third party" (EC, Ass., April 4, 2014, Department of Tarn-et-Garonne, Rec. ., EC, p.70, conclude B. Dacosta, AJDA, 2014, p.1035, A. Bretonneau and J. Lessi, BCJL 2014, p.316, note C. Fardet, CMP 2013, study 5, Ph. Rees, JCP G, 2014, Doc 732, P. Bourdon, RDP, 2014, P. 1175, note L. Janicot and J.-F. Lafaix, RFDA, 2014, P. 425, conclusion and note P. Delvolvé) it is up to us to take a critical look at the evolution of the litigation of third-party claimants. It is customary to say that "to know where we are going, we need to know where we come from", the study of third party access to the courtroom is obviously no exception.

Thus, it is difficult to tackle in a few words this secular evolution. We believe that to understand the issues, it is essential to begin our study with a return to basics. Precisely, at the heart of the general theory of obligations, whatever its legal nature, we find traces of the influence of the principle of the relative effect of the contract. This necessarily leads to a close look at the difference between a party to a contract and a third party to the same contract. What is stated clearly must be privileged and therefore the third party, logically, is the one who is not party to the contract. However, not being party to this contract, the third party, considered perfectly outside, can not be interested, nor be aggrieved either by the signature or by the execution of the contractual relation. Our purpose logically focuses on the evolution of the administrative contract and its remedies. However, the necessary attenuation of the relative effect also applies to private law contractual relationships.

Thus, the experience of the reality of administrative contracts shows that the relative effect must necessarily be nuanced. Indeed, the administrative contract rhymes with the general interest and de facto with the public service. The third party to a contract delegating a public service may be harmed by the said contract on the understanding that the third party in this case may be a public service user. Therefore, we have to relativize the relative effect of the contract. Therefore, if we admit that it is probable that a third party can be harmed by a contractual relationship, the rule of law must provide its citizens - in this case its justiciable in this case - contentious solutions for their to allow a judge to decide and, if necessary, to have the damage repaired. It is precisely on this point of access to the judge (s) that the litigation of third parties has undergone a profound restructuring, from an initial platonic remedy to a cascade of recourse. (AT), to finally open access to the courtroom of the contract judge only for certain third parties (B), to end up opening it to all thirds (VS). This evolution must lead us to the demonstration that the long process of third party access to the courtroom of the contract judge, the only authority to pronounce the annulment, is, in reality, only a paradox (D) !

A) The initial "platonic" appeal to a cascade of remedies

  • Martin or the "platonic" remedy

This formula is not ours, it is the fruit of the critical spirit of ROMIEU, illustrious government commissioner who concluded under this famous case. By this formula, ROMIEU vigorously criticized the sole recourse open to third parties at the beginning of the twentieth century.

Indeed, the State Council in 1905 made a famous stop, entitled Martin. On this occasion, the highest administrative court authorizes the third parties to seize the judge of the legality of an action in excess of power contesting the legality of the detachable acts of the contract. The perfect example of the detachable act is the decision of the city council authorizing the mayor to sign the contract. ROMIEU considered that this appeal was platonic insofar as if the judge of the legality annulled the detachable act for illegality, that did not carry any consequences on the future of the contract. In other words, the cancellation of the act authorizing the mayor to sign the contract does not affect the validity of the signed contract.

  •  Husband Lopez and Cayzeele or the introduction of a cascade of recourse

It took for thirds wait 89 years for their situation to evolve ... Note immediately that a rule of law does not offer effective litigation solution for its citizens raises big questions ...

89 yearss, this is the time it took for the Council of State to issue a judgment in 1996 between Loupez, in 1994 and Cayzeele, on detachable statutory clauses. We are talking about cascade of recourse, we could evoke the idea of the entanglement of remedies. In fact, in 1994, if a third party felt aggrieved by an administrative contract, here is the litigation process that he had to accomplish:

  • 1st step : application of Martin and therefore the appeal for excess of power against the detachable act. If the judge of the legality cancels the act for illegality we proceed to the second stage. Otherwise, logically, the process stops here.
  • 2nd step : Following the cancellation of the detachable act, the judge of the legality will order the contracting authority (taking on this occasion the cap of a judge of the execution) to seize the judge of the contract (because only this last is competent to sanction the contract if necessary), so that it draws the consequences of the cancellation of the detachable act.
  • 3rd step : decision of the contract judge on the fate of the contractual relationship.

Appraisal: complex and particularly long recourse likely to discourage most applicants with a key decision platonic.

B) Tropic or the opening of the courthouse of the contract judge to privileged third parties

In 2007, the highest administrative court in its decision on Tropic works warning signs (EC, Ass., 16 July 2007, ECR, 2007, 360, D. Casas, AJDA, 2007, 1577, chron F. Lenica, J. Boucher, D., 2007, 2500, note D. Capitant, Dr. adm., 2007, comm 142, note P. Cossalter, JCP A, 2007, 2212 , note F. Linditch, RDP, 2007, p 1383, concl., and note F. Melleray, RFDA, 2007, p 696, conclusion and note F. Modern, note D. Pouyaud) revolutionizes the litigation of third parties opening access to the contract judge for a category of third parties. In fact, only unsuccessful candidates may, under that case-law, refer the matter to the contract judge in the context of an action challenging the validity of the contract.

Let us note immediately that we are situated within the framework of the so-called contracts of public order. Under such contracts, public entities are obliged to make a call for competition following publicity measures: procurement procedure. The unsuccessful candidate is therefore the company that would have applied for a public contract and had its application rejected for the benefit of another.

The principle recital of Tropic is of an elegant pedagogy. Indeed, it is a kind of user manual, vademecum of the practice of this new remedy.

  • 1st step: the concerned third party is only the ousted candidate. The appeal is closed within 2 months.
  • 2nd stage: judge's office:
    - Aucune irrégularité : l’exécution du contrat est décidée
    - Régularisation de l’irrégularité si possible
    - Résiliation avec potentiellement un effet différé pour motif d’intérêt général
    - Annulation : disparition avec effet rétroactif du contrat

In 2012, the Sté Gouelle decision modifies what we had to hear and understand by an unsuccessful candidate by including the company that would have been interested in candidating but that was not able to do so because of a failure in the publicity procedure organized by the public body.

C) Department of Tarn-et-Garonne or the massive opening of the access to the judge

This 2014 decision marks a culmination in the quest to restructure third-party recourse against the contract. From now on, all third parties have access to the contract judge. This means that unsuccessful candidates lose that privilege. Another consequence is that there is no longer any point in bringing an action for excess of power against the detachable act. However, there remain some contentious subtleties.

We will follow, to understand the decision Department of Tarn-et-Garonne, the same approach as for Tropic.

  • 1st step : all third parties may submit to the contract judge an appeal against the validity of the contract. This appeal is closed within 2 months.
  • 2nd step : interest in acting:
    - Pour les tiers ordinaires : il faut démontrer un intérêt à agir. Cela signifie que sans cette démonstration, ils ne peuvent utilement saisir le juge du contrat. Il leur faudra démontrer qu’ils sont susceptibles d’être lésés dans leurs intérêts de manière suffisamment directe et certaine par la procédure de passation.
    - Pour le préfet et l’élu : aucun intérêt à agir à démontrer. Dès lors, ce sont eux les nouveaux tiers privilégiés.
  • 3rd step: the judge's office: if the interest to act is demonstrated, it is up to the judge of the contract to decide on the fate of the contractual relationship. It's not complicated, it's the same as for Tropic:
    - Aucune irrégularité : poursuite de l’exécution du contrat
    - Régularisation si possible du contrat
    - Résiliation éventuellement avec effet différé pour motif d’intérêt général
    - Annulation du contrat en présence d’un vice d’une particulière gravité notamment le contenu illicite du contrat ou un vice du consentement

    Modulation over time: the decision only applies to contracts signed after the Tarn-et-Garonne Department. This means that for contracts signed just before, only unsuccessful candidates have access to the contract judge under Tropic. The others will have to use again the joint Martin - Lopez or Martin - Cayzeele.

    Modulation of the appeal: the action for excess of power against the detachable act is not "dead" because it remains as we have seen for the contracts prior to the decision, but also for the regulatory clauses and private contracts of administration.

D) The necessary balance sheet: the demonstration of the paradox!

At first sight, one can only welcome such a development, from the hermetic closure to the total opening of the courtroom of the contract judge to any third party. However, a closer look at the device of the decision Department of Tarn-and-Garonne necessarily leads to the expression of a form of cynicism.

In fact, to summarize our feeling would be to say that if the doors of the courtrooms are opened, the Council of State has chosen to prevent most of the applicants from exercising their right of criticism. Precisely, the tightening of the legal remedies around the sole judge of the validity of the contract was accompanied by the confusion between the interest to act and the injury of the applicant. In other words, the means of irregularity which may be invoked by the ordinary third-party claimant must have necessarily affected him. Such a restriction of the operative means is in harmony with the restructuring of the pre-contractual summary since 2008 and the jurisprudence SMIRGEOMES. In order to be convinced of this, let us read again the 2014 decision: "Any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by his contract or its clauses is admissible to form before the judge of the contract a appeal of unlimited jurisdiction contesting the validity of the contract or some of its non-regulatory clauses which are divisible by it ". This excerpt is rich in lessons.

Firstly it helps to demonstrate the extreme rigor with which the contract judge will welcome the interest to act of ordinary third parties. Contrary to standard litigation practice, the claimant is not required to demonstrate an injured right, but an injured interest, certainly not to close the door to all eligible claimants to form a claim. appeal for abuse of power against the detachable acts of the contract.

On the other handthe lesion must be sufficiently direct and certain, which will have significant consequences for filtering the means, but already on the first filter that is the interest to act. This is the reason why several authors, under the pen of Professor Franck LAFFAILLE, have expressed all their reservations regarding recent developments in case law: " The unification - or rather the rationalization - of contractual disputes entails ignorance of the rights of third parties. Notwithstanding the laudatory assertions aimed at the progress of April 4, 2014, it appears that such a jurisprudential policy is dangerous with regard to the rights of third parties ". The terms are heavy with significance ......

To conclude, the unprecedented movement of harmonization of all relevant legal means to challenge either the procedure of contracting or its validity, was built obviously "like a French garden" to use the formula Councilor Gilles PELLISSIER. Indeed, 2008 marks the rationalization of the pre-contractual summary, 2009 that of litigation of the parties and 2014 that of the access of third parties. The only victim, as it stands, of such a movement, is once again to be, in addition to the applicants, the principle of legality which one wonders if it still has any significance for the administrative judge. It should not be confused principle of legality and administrative legality!

If the future jurisprudential consists of making the principle of legality an empty shell, it could quickly lose all credibility to the administrative jurisdiction.
After all, what good is it to go before the judge if the chances of success are reduced to nothing or purely symbolic?