When "motorway concessionaire" does not necessarily rhyme with "contracting authority"!
It is a complex case that has been submitted to the control of the highest administrative court. At the end of a sub-concession contract relating to the shopping and restoration of a service area on the A6 motorway, Total, a former incumbent, did not submit an offer to the Autoroutes Paris-Rhin-Rhône [APRR], considering that the procedure of illegal handing. Having seized the administrative judge of a pre-contractual summary, Total was denied his claims. Accordingly, the applicant company requested the Conseil d'État to annul the order for interim relief and to uphold its claims at first instance. Thus, this decision draws our attention to two relevant elements: the jurisdiction of the administrative judge in the case of a contract involving the occupation of the public domain and the identification of a contracting authority conditioning the competence of the judge of the pre-contractual summary
Teaching n ° 1: the obvious competence of the administrative jurisdiction in the event of a contract involving occupation of the public domain signed by a public service concessionaire
The first question necessarily asked by the administrative judge is that of his own jurisdiction to settle the dispute. It is the provisions of Article L. 2331-1 of the General Code of Public Ownership that provide a clear and precise answer. Given that the disputed contract carries occupation of the public domain and that it is signed between a concessionaire of public service - of motorway in this case - and an economic operator, the litigation falls under the obvious competence of the administrative jurisdiction (CE , Opinion, 16 May 2002, No. 366305, EDCE, 2003, p.201). As the public rapporteur Mireille Le Corre pointed out pedagogically, if a contract involving occupation of the public domain had been signed by two private persons, without the presence of a public service concessionaire, the dispute would have been settled by the Judge Judge (TC, May 14, 2012, Mrs. G., No. 3836).
Teaching n ° 2: the motorway concession company is not necessarily a contracting authority and thus closes the route of pre-contractual summary within the meaning of the CJA
At first instance, the applicant company brought, in accordance with the provisions of Article L. 551-1 of the Code of Administrative Justice, a pre-contractual injunction to request the cancellation of the procurement procedure which it alleged to be unlawful. This article is quite explicit and reserves the cases of opening of this contentious action according to the contract, the quality of the applicant, but also the authority at the initiative of the procedure in question. As far as the contract is concerned, the provisions of the above-mentioned article are obvious: the service concession contract may be referred to the pre-contractual judge. On the applicant's side, candidates who have been dismissed - or who have not been able to apply - are ineligible to lodge such an appeal if irregularities relating to the publicity and competitive tendering procedures which have prejudiced or affected them are in issue. have done so (EC, Sect., October 3, 2008, Smirgeomes, No. 305420). From the point of view of the authority responsible for launching the procurement procedure, the regulations in force are also explicit. Specifically, only the award procedures initiated by a contracting authority or contracting entity can be challenged by way of pre-contractual summary proceedings.
At first glance, the reflex is to consider the motorway concession authority as a contracting authority and thus open the way to pre-contractual summary proceedings. Yet this is not what the magistrates of the Palais Royal decided. Following the conclusions of the public rapporteur, an educational approach was adopted. Point by point, the magistrates have demonstrated that the pre-contractual summary should not have been opened in this case.
In fact, having demonstrated that the material criterion (relating to the nature of the contract in question) posed no problem, the organic criterion (relating to the nature of the concessionaire) had to be fulfilled. As such, there is no absolute rule that would systematically determine the nature of the concessionaire. It is the order of 29 January 2016 on concessions in Article 9 which lays down the criteria for the concessionaire to be considered as a contracting authority: "private legal entities which have been set up specifically to meet the needs of general interest of a non-industrial or commercial nature, of which: (a) the activity is financed mainly by a contracting authority; (b) the management is subject to control by a contracting authority; (c) The administrative, management or supervisory body is composed of members more than half of whom are appointed by a contracting authority ".
In this case, the Conseil d'État considered that the APRR did not comply with (a), (b) or (c). Consequently, access to the courtroom of the pre-contractual judge should have been closed for the applicant company.
Teaching n ° 3: the specific provisions of the code of the road network extending the access to the pre-contractual referendum do not apply for the annexed facilities on the motorways
In this case, by a game of reference, the pre-contractual judge could have regained his jurisdiction. Thus, the code of the road network, created by the law of August 6, 2015 and modified, then, by the law of December 9, 2016 extends the possibilities of access to this way of law certainly to unify again the litigation under the office of the administrative judge. However, the provisions of Article L. 122-20 of the Highway Code was understood by the judge as not relating to the ancillary parts of the motorway.
As a result, after recognition of the APRR as contracting authority was discarded and the referral game by the highway code does not work either and the applicant company should not have been able to form a pre-contractual referral.
Considering the following:
- It appears from the statements in the order under appeal that, by a public notice of invitation published on 14 June 2018, the Paris-Rhine-Rhone Motorway Company (APRR) initiated a consultation with a view to renewing the contract for occupation of the motorway public domain granted for the purpose of performing shop and restaurant activities in the service area of Dracé and, as an accessory, the execution of a mandate for the marketing of fuels. The company Total Marketing France, which was admitted to submit its application but did not submit an offer, appeals in cassation against the order of 14 December 2018 by which the judge of the summary of the administrative court of Dijon, seized on the basis of Article L. 551-1 of the Code of Administrative Justice, rejected his request for cancellation of the procedure for signing this contract.
On the jurisdiction of the administrative court:
- According to Article L. 2331-1 of the General Code of Public Ownership: "Litigation relating to: 1 ° authorizations or contracts involving occupation of the public domain, irrespective of their form or denomination, granted or concluded by public persons or their dealers ". It follows from those provisions that disputes relating to contracts involving occupation of the public domain concluded by concessionaires of the public highway service fall within the jurisdiction of the administrative court. The administrative court is therefore competent to hear the present dispute, which concerns the conclusion, by a motorway concession company, of a contract involving occupation of the public highway domain.
On the referral of the pre-contractual summary judge:
- On the one hand, according to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, may be seized in case of failure to comply with the obligations of publicity and tendering procedure for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of delegation of a public service or the selection of a shareholder economic operator of a joint venture company with a single operation / It may also be seized in case of breach of the same obligations to which are subject, pursuant to Article L. 521-20 of the Energy Code, the selection of the shareholder operator of a hydroelectric joint-venture company and the designation of the successful party of the concession. e is seized before the conclusion of the contract ". According to Article L. 551-2 of the same code: "The president of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the publicity and competitive bidding procurement by contracting entities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic consideration consisting of a price or a right of exploitation, the delegation of a public service or the selection of an economic operator shareholder of a single-purpose mixed economy company / The judge is seized before the conclusion of the contract ".
- The notion of contracting authority is defined in Article 9 of the Ordinance of 29 January 2016 on concession contracts, which is then applicable, ratified by the law of 9 December 2016 on transparency, the fight against corruption and the modernization of economic life. According to those provisions, contracting authorities, in addition to public persons and certain private-law bodies constituted by contracting authorities, are 'private-law legal persons set up specifically to satisfy needs of general interest having a character of other than industrial or commercial, of which: a) The activity is financed mainly by a contracting authority b) Or the management is subject to control by a contracting authority c) Or the administrative, management body or surveillance is composed of members of whom more than half are appointed by a contracting authority ". If the construction, maintenance and operation of the motorways for which the motorway companies are principally responsible are intended to satisfy needs of general interest within the meaning of the foregoing provisions, the company APRR, which is a company concessionaire of privately-owned motorways, does not meet any of the conditions mentioned in Article 9 (a), (b) and (c) of the 2016 ordinance. It can not therefore be regarded as a contracting authority or, in in any event, as an adjudicating entity, from which it follows that the pre-contractual judge has no jurisdiction to hear the disputed contract pursuant to Articles L. 551-1 and L. 551-2 of the Code de justice administrative .
- On the other hand, it is up to the legislator alone, by virtue of the provisions of Article 34 of the Constitution, according to which the law determines the basic principles of civil and commercial obligations, to make applicable to contracts concluded by private persons to the judge of the pre-contractual injunction. Thus, under the terms of Article L. 122-20 of the Highway Code, applicable to works contracts, supplies or services passed by a motorway concessionaire for the purposes of the concession: "In case of breach of obligations advertising and tendering procedures for the award of contracts for works, supplies or services, it shall apply: 1 ° For contracts subject to the rules of public law, subsections 1 and 3 of Section 1 and Section 2 of Chapter I of Title V of Book V of the Administrative Justice Code ".
- But, if the article L. 122-20 of the code of the road system, resulting from the law of August 6, 2015 for the growth, the activity and the equality of the economic chances, thus extended the competence of the judge of the summary pre-contractual to public works contracts, supplies or services by motorway concession companies, whose procurement was subject by this law to procedural rules, no legislative provision has extended this power to contracts, such as that of the the operation of the ancillary facilities operated by motorway concession companies, when these companies do not have the status of contracting authority or that of contracting entity, even though the law of 6 August 2015 submitted the award from these contracts to rules of procedure.
- Consequently, the company Total Marketing France was not entitled to refer to the judge of the pre-contractual summary of deficiencies, imputed to the company APRR, to the obligations of advertising and putting in competition to which was subjected the conclusion of the contract of exploitation of the Dracé service area, even, firstly, that under Article R. 122-41 of the Highway Code, the motorway concessionaire is treated as a contracting authority for the application of the decree of February 1, 2016 relating to the concession contracts and, secondly, that the concession notice published by the APRR company mentioned that this contract could be the subject of a pre-contractual summary. That ground, which legally justifies the operative part of the order under appeal and does not call for the assessment of any factual circumstance, must be substituted for the reasons given by the judge in charge of the Dijon Administrative Court.
- It follows from the foregoing that the appeal of Total Marketing France must be rejected, including its claims submitted under Article L. 761-1 of the Code of Administrative Justice. In the circumstances of the case, it is not necessary to charge Total Marketing France under the same article.
Article 1: The appeal of the company Total Marketing France is rejected.
Article 2: The conclusions presented by the Paris-Rhin-Rhône motorway company pursuant to Article L. 761-1 of the Administrative Justice Code are rejected.
Article 3: This decision will be notified to the company Total Marketing France and to the motorway company Paris-Rhin-Rhône.