L’exercice d’un recours administratif contre une décision de résiliation d’un contrat n’a pas pour effet d’interrompre le délai de recours contentieux

The exercise of an administrative appeal against a decision to terminate a contract does not have the effect of interrupting the period of litigation

by gmorales on 15 December 2016 | Category: Public markets
L’exercice d’un recours administratif contre une décision de résiliation d’un contrat n’a pas pour effet d’interrompre le délai de recours contentieux L’exercice d’un recours administratif contre une décision de résiliation d’un contrat n’a pas pour effet d’interrompre le délai de recours contentieux

CE 15 December 2016, Municipality of Saint-Denis d'Oléron, Req.N ° 389141

An individual had entered into a contract with a municipality authorizing him to park his boat in her port. The contract was terminated by a decision based on a provision of the port regulations. The individual filed an appeal, which was dismissed, and then applied to the Administrative Tribunal for an annulment of the termination decision. This request was rejected. On appeal, the judgment was quashed by the Administrative Court of Appeal. On an appeal, the Conseil d'Etat recalls that the exercise of an administrative appeal against a decision to terminate a contract does not have the effect of interrupting the period of litigation.

Rule n ° 1: The judge of the contract can pronounce on the decision of termination of a convention of occupation of the public domain

The Conseil d'Etat is making a new application of the so-called "Commune de Béziers II" (EC, 21 March 2011, Municipality of Béziers, n ° 304806), within the framework of a convention of occupation of the public domain. The High Administrative Court recalls indeed the recital in principle according to which "the judge of the contract, seized by a party of a dispute relating to a measure of execution of a contract, can only, in principle, seek if this measure is intervened under conditions of a nature to give right to compensation. However, a party to an administrative contract may, having regard to the scope of such an execution measure, bring before the court of the contract a full appeal contesting the validity of the termination of the contract and contractual relations ". In this case, the mayor had, by a letter, notified the contracting partner of the municipality the termination of a contract of "annual guarantee of use of berth". In application of this case law, the co-contractor of the municipality asked the judge of the contract to cancel the decision to terminate the said contract, which constitutes an agreement of occupation of the public domain.

Rule 2: The appeal must be lodged within two months of the date on which the other party was informed of the termination of the contract

The Conseil d'Etat also recalls that the co-contractor who intends to ask the contract judge to annul the decision to terminate a contract must do so within two months of the date on which he was informed of the termination decision. In this case, the mail of the mayor dated October 15, 2010 and the recipient has filed a gracious appeal by a letter of October 22, 2010. It is the latter date that the Council of State takes into account to calculate the delay of recourse.

Rule 3: The exercise of an administrative appeal does not have the effect of interrupting the period for appealing against a decision to terminate a contract

However, the Council of State also recalls that this period of appeal can not be interrupted by the exercise of an administrative appeal, whatever the reason for the termination: "having regard to the particularities of this litigation, to the the scope of the unlimited jurisdiction available to the contract judge and which may lead him, if the conditions are met, to order the resumption of contractual relations and to the intervention of the judge hearing the application for interim measures to take provisional measures in In this sense, the exercise of an administrative appeal to challenge this measure, if it is still open to the contracting party to use it, can not have the effect of interrupting the period for litigation. This is the case regardless of the reason for termination of the contract and in particular when such termination has occurred because of the mistakes made by the other party "(CE, May 30, 2012, SARL Promotion of tourist catering, No. 357151). In this case, an appeal was filed on October 22, 2010 and rejected by a letter from the mayor of October 30, 2010. The applicant had seized the Administrative Tribunal on December 27, 2010, two months and five days after the date of the appeal gracious. The application was therefore late and therefore inadmissible. The Conseil d'Etat therefore considers that the Administrative Court of Appeal should have automatically raised this inadmissibility and, consequently, annuls its judgment.

Board of state
N ° 389141  
ECLI: FR: CECHR: 2016: 389141.20161215
Mentioned in the tables of Lebon collection
8th - 3rd rooms combined
Mrs Karin Ciavaldini, rapporteur
Mr Benoît Bohnert, public rapporteur
SCP BOULLOCHE; SCP ODENT, CHICKEN, lawyers

Reading of the Thursday, December 15, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

MA..B ... asked the administrative court of Poitiers to annul the decision of October 15, 2010 by which the mayor of the municipality of Saint-Denis d'Oléron (Charente-Maritime) pronounced the termination of the contract of " annual guarantee of use of berth "which he enjoyed in the port of the municipality. By a judgment n ° 1003374 of December 12, 2012, the administrative court rejected this request.

By a judgment n ° 13BX00454 of February 5th, 2015, the administrative court of appeal of Bordeaux has, on call of MB .., annulled the decision of October 15th, 2010 and reformed the judgment of the administrative court of Poitiers as it was contrary to his judgment.

By a summary appeal and a complementary memorandum, registered on April 1 and June 23, 2015 to the litigation secretariat of the Conseil d'Etat, the municipality of Saint-Denis d'Oléron asks the Conseil d'Etat:

1 °) to annul this judgment;

2 °) settling the case on the merits, dismiss the appeal of MB ...

Considering the other parts of the file;

Considering the code of administrative justice;

After hearing in open session:

- report by Mrs Karin Ciavaldini, Master of Petitions,

- the conclusions of Mr Benoît Bohnert, public rapporteur.

The word having been given, before and after the conclusions, to the SCP Odent, Poulet, lawyer of the commune of Saint-Denis d'Oléron and to SCP Boulloche, lawyer of MB ...

1. It is clear from the documents in the file submitted to the Court that MB .. concluded in 1993 with the municipality of Saint-Denis d'Oléron (Charente-Maritime) a contract of "annual guarantee of use of berth "under which he was authorized to park the pleasure boat he owned in the port of that commune at the place n ° 16 of the pontoon I. By a letter of October 15, 2010, the mayor of the municipality served MB..the termination of this contract on the basis of article 49 of the regulations of the port, because of his behavior toward a professional working in the port, this termination taking effect upon receipt of the mail. By letter of October 22, 2010, MB .. has appealed against this measure, which was rejected by a letter from the mayor of October 30, 2010. On December 27, 2010, Mr. B ... seized the Administrative Court of Poitiers. an application for annulment of the decision of 15 October 2010. In a judgment of 12 December 2012, the Administrative Court rejected this request. The town of Saint-Denis d'Oléron appeals in cassation against the judgment of February 5, 2015 by which the Administrative Court of Appeal of Bordeaux, granting the call formed by MB .., canceled the decision of 15 October 2010.

2. The judge of the contract, seized by a party to a dispute relating to a measure of execution of a contract, may only, in principle, inquire whether the measure has taken place under conditions of a nature to give entitlement to compensation. However, a party to an administrative contract may, having regard to the scope of such an execution measure, bring before the court of the contract a full appeal contesting the validity of the termination of the contract and contractual relations. It must exercise this remedy, even if the contract in question relates to public works, within two months from the date on which it was informed of the termination measure. Such conclusions may be accompanied by a request that, on the basis of the provisions of Article L. 521-1 of the Administrative Justice Code, the suspension of the execution of the termination be suspended, so that the contractual relations are provisionally times.

3. Having regard to the peculiarities of this contentious appeal, to the extent of the unlimited jurisdiction available to the contract judge and which may lead him, if the conditions are satisfied, to order the resumption of contractual relations and to the intervention of the judge hearing the application for interim measures to take provisional measures to that end, the exercise of an administrative appeal challenging that measure, if it is still open to the contracting party to resort to it, can not have the effect of interrupting the period of contentious appeal. This is the case regardless of the reason for termination of the contract and in particular when this termination occurred because of the mistakes made by the other party.

4. MB ..'s request for annulment of the letter of 15 October 2010 by which the municipality of Saint-Denis d'Oléron informed him of the termination of the contract from which he benefited should be regarded as an appeal in full contentious contesting the validity of this termination and tending to the resumption of contractual relations. It was apparent from the file before the court that Mr B. had appealed to the Administrative Court on 27 December 2010, that is after the expiry of the period of two months from the date on which he was informed of the measure, which was later on October 22, 2010, the date on which he filed a grievous appeal. It follows from paragraphs 2 and 3 that the application to the Administrative Court was out of time and therefore inadmissible. By not automatically filing this inadmissibility, which was apparent from the documents in the file submitted to it, and granting the request of Mr. B .., the court tainted its judgment of irregularity. Without it being necessary to examine the grounds of the appeal, the municipality of Saint-Denis d'Oléron is justified in requesting the cancellation of the judgment it is attacking.

5. It is appropriate, in the circumstances of the case, to settle the case on the merits pursuant to Article L. 821-2 of the Code of Administrative Justice.

6. In order to reject Mr B.'s claim, the administrative court ruled that the mayor was in a position of joint jurisdiction to notify him of the termination of the contract in question, which had been pronounced by the municipal council of the municipality as part of its skills. He inferred from this that the grounds relied on by Mr B. against the decision notifying him of that termination were ineffective. It did not appear either from the terms of that decision or from any other part of the record that the mayor had relied on what he considered to be a related jurisdiction to notify MB ... of the termination of the contract. Therefore, in relying on this ground itself without first having informed the parties of its intention to take it up ex officio, the court tainted its judgment of irregularity. It is necessary, consequently, to annul this judgment and to rule by way of the evocation on the request of MB ...

7. As stated in paragraph 4, Mr B.'s claim before the court was inadmissible and can not therefore be dismissed.

8. The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of a sum in this respect to the commune of Saint-Denis d'Oléron, which does not is not, in this proceeding, the losing party. It is appropriate, in the circumstances of this case, to charge MB ... the payment to the town of Saint-Denis d'Oléron of the sum of 2,000 euros for costs incurred by the latter before the Administrative Court of Appeal and the Administrative Court.

DECIDE:
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Article 1: The judgment of 5 February 2015 of the Administrative Court of Appeal of Bordeaux and the judgment of 12 December 2012 of the Administrative Court of Poitiers are annulled.

Article 2: The application of MB ... before the Administrative Court of Poitiers is rejected.

Article 3: The conclusions presented by MB ... before the Council of State and the Administrative Court of Appeal of Bordeaux under Article L. 761-1 code administrative justice are rejected.

Article 4: MB..refer to the town of Saint-Denis d'Oléron the sum of 2,000 euros under Article L. 761-1 code administrative justice.

Article 5: This decision will be notified to the municipality of Saint-Denis d'Oléron and MA .. B ....