The client can transfer to a third party his action on the basis of the contractual guarantee
State Council, October 7, 2016, Société Lyonnaise des Eaux France, No. 392351
The urban community of Bordeaux (CUB) had entrusted Lyonnaise des Eaux with a project management mission for the renovation of a collector of the sewerage network, this company also operating the sewerage network within the framework of a leasing contract. The CUB has also entrusted the execution of the works to a group of companies. Following the appearance of disorders, the Lyonnaise des Eaux has requested the conviction of the companies that carried out the work to compensate for the damage related to these disorders under the ten-year responsibility of the manufacturers, on the one hand, and the guarantee contractual, on the other hand.
Rule n ° 1: Defects appearing after the reception, but of the same nature as those appeared during the works, are apparent defects and can not give place to the implementation of the ten-year guarantee
Concerning the challenge under the decennial liability of the manufacturers, it will be recalled that it applies to hidden defects and not to apparent defects. However, the Administrative Court of Appeal of Bordeaux had noted that disorders had already appeared during the works and that those appeared after the reception of works were of the same nature and had the same cause. The Court also noted that if repairs had already been made to the collector prior to the acceptance of the works, the doubts as to the technical solutions employed, which were known to the supervisor, did not allow these repairs to be regarded as definitive or even sustainable. She also noted that during the works, the project manager had long researched the nature and causes of the phenomenon. The Court thus retained that at the time of receipt, the defect affecting the work was therefore known to the supervisor who could apprehend the consequences, in all their extent ". The appellate judge therefore considered that these defects had the character of obvious defects at the time of the reception and could thus not lead to a conviction of the companies under the ten-year guarantee. The Council of State, which holds that the Court has supremely appreciated these facts without distortion, validates the reasoning of the Court.
Rule n ° 2: The client may transfer his action on the basis of the contractual guarantee to a third party
As regards contractual liability, the Lyonnaise des Eaux relied on a clause in its lease agreement with the CUB, which stipulated that the farmer is authorized, either directly or through the community, to exercise the remedies open to it vis-à-vis contractors and suppliers by the legislation in force ". The Bordeaux Administrative Court of Appeal considered that this clause only allowed the farming company to exercise the remedies provided for by law, such as those provided by the decennial guarantee or the guarantee of perfect completion, provided for by the Civil Code. . It therefore ruled that the Lyonnaise des Eaux could not bring an action on the basis of the common law contractual guarantee, which is not provided for by law, but only by the contract binding the CUB and the construction companies, and to which the farm society is not a party, as the Court notes elsewhere. It therefore held that the Lyonnaise des Eaux was unfounded to seek the liability of works contractors on the basis of contractual liability. The Council of State sanctions this reasoning. It posits as a principle " that it is permissible for the contracting authority to transfer to a third party to the contract, including the project manager, its right to take legal action on the basis of the contractual guarantee it has against contractors of works to which he is linked ". Moreover, he considers that in this case, the parties' common intention was to allow Lyonnaise des Eaux France to take legal action initially belonging to the CUB. The Conseil d'Etat therefore quashed the Court's judgment on this point, considering that it distorted the documents in the file.
Board of state
N ° 392351
ECLI: FR: CECHR: 2016: 392351.20161007
Unpublished at Lebon collection
7th - 2nd rooms together
Marc Pichon de Vendeuil, rapporteur
Mr Olivier Henrard, public rapporteur
SCP FOUSSARD, FROGER; SCP CELICE, SOLTNER, TEXIDOR, PERIER; SCP ODENT, CHICKEN; SCP BOUTET, HOURDEAUX; SCP HEMERY, THOMAS-RAQUIN, lawyers
Reading of Friday, October 7, 2016
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The company Lyonnaise des Eaux France has asked the Administrative Court of Bordeaux to jointly condemn the companies Sobebo, Urban Works, Sagebat and Axa France Iard, on the one hand, to pay him the sum of 3 430 367,20 euros TTC under disorders found on the collector Lajaunie sanitation network of the Urban Community of Bordeaux and, on the other hand, to repay the advanced expertise fees up to 311 940.66 euros TTC. By a judgment n ° 0901696 of November 27th, 2012, the administrative court of Bordeaux rejected its request.
By a judgment no. 13BX00246 of June 8, 2015, the Administrative Court of Appeal of Bordeaux rejected its appeal against this judgment.
By a summary appeal, a supplementary memorial and a reply, filed on 4 August and 4 November 2015 and on 8 February 2016 with the litigation secretariat of the Conseil d'État, Lyonnaise des Eaux France asked the Conseil d'État to:
- to annul that judgment;
- to charge the company Sobebo, the Urban Works Company, the Center of expertise of the building and public works (CEBTP), the company Axa France Iard and companies Sagebat and Sagena the sum of 6 000 euros under Article L. 761-1 of the Administrative Justice Code.
Considering the other parts of the file;
- the civil code;
- the code of administrative justice;
After hearing in open session:
- the report of Marc Pichon de Vendeuil, master of petitions,
- the conclusions of Olivier Henrard, public rapporteur;
The word having been given, before and after the conclusions, to the SCP Célice, Soltner, Texidor, Perier, lawyer of the company Lyonnaise of waters France, to the SCP Hémery, Thomas-Raquin, lawyer of the company Sobebo, with the SCP Boutet, Hourdeaux, lawyer of Urbaine de Travaux and Axa France Iardard, SCP Odent, Poulet, lawyer of SMA Brokerage and SMA SA, and SCP Foussard, Froger, lawyer of Bordeaux Métropole ;
1. Considering that it appears from the documents in the file submitted to the judges of the merits that, for the renovation of the sewerage system collector of the urban community of Bordeaux located between the Saint-Emilion station and the quai de Brazza in Bordeaux, the Urban Community of Bordeaux (CUB) entrusted a project management mission to the company Lyonnaise des Eaux France, operator of the sewerage network under a leasing contract concluded on December 22, 1992; that the execution of the work was, in turn, entrusted to a group of companies formed between the company Sobebo and the company Urban Works by a contract concluded May 17, 1994; that following the appearance of disorders affecting the polypropylene shell placed inside the pipe, the company Lyonnaise des Eaux France sought before the administrative jurisdiction the responsibility of the two entrepreneurs as well as that of companies Sagebat and Sagena, to the rights of the companies SMA SA and SMA brokerage, and of the company Axa France Iard, as insurers of works contractors, and requested their joint and several condemnation to the payment of compensation of 3,430 € 367.20 including tax and the payment of costs in the amount of € 311,940.66 inclusive of VAT incurred as part of the expert appraisal ordered by the judge on summary proceedings on February 20, 2004; that its requests were rejected by the administrative court of Bordeaux, by a judgment of November 27, 2012, as well as, on appeal of the company Lyonnaise des eaux France, by the administrative court of appeal of Bordeaux, by a judgment of June 8 2015 against which the company appeals in cassation;
The lawfulness of the judgment under appeal:
2. Considering that the company Lyonnaise des Eaux France argues that the principle of impartiality was ignored when the president of the ruling court on appeal, MA .., was seconded from 2005 to 2008 to the urban community de Bordeaux in the framework of the jobs of the territorial administrators and exercised during this period the functions of inspector general of the services of the urban community;
3. Considering, however, that, on the one hand, it is clear from the documents in the file submitted to the Conseil d'Etat that the facts at the origin of the impugned proceedings, to which the CUB has never been a party , are largely prior to the arrival of MA..in the services of the urban community; that during the period when he served as inspector general of the services, the nature of the tasks entrusted to him in that capacity, which included in particular the mission of renegotiating the contracts for the leasing of water services and sanitation passed by the urban community, did not put in situation to know the dispute between the company Lyonnaise des eaux France to the builders as to the disorders affecting the collector Lajaunie whose renovation had been undertaken and which made the object, at the same time, of an expert whose conclusions were not submitted until his departure; that, therefore, this magistrate can be regarded as having already had, within the framework of its former administrative functions, to know the facts object of the present dispute in conditions such that it would already have taken part on the outcome of the litigation submitted to it in the context of its jurisdictional functions;
4. Considering, on the other hand, that it also appears from the documents in the file that, if the magistrate whose impartiality is criticized led, in the framework of the relations between the collectivity that employed him and his public service delegate negotiations which have led to a general revision of the financial conditions for the execution of the leasing contract and if the modification of these contracts has been widely relayed by the press, the present dispute has nothing to do with the question of the execution and renegotiation of the delegation contracts between Lyonnaise des Eaux France and the Bordeaux Urban Community for which it was responsible; that, taking into account, in addition, the time elapsed between the end of the duties of this magistrate to the urban community and the date on which the court ruled, these circumstances alone are not, in the absence of any other element and unlike to what is alleged to reveal a bias of Mr. A. towards the applicant company and do not constitute a serious reason to question his independence and impartiality, the requirements of any judge; In these circumstances, the plea that the composition of the formation of judgment in the present case had been in breach of the principle of impartiality must be rejected.
On the merits of the judgment under appeal:
With regard to the ten-year guarantee:
5. Considering that it is by a sovereign appreciation free from denaturing that the administrative court of appeal of Bordeaux found that the disorders appeared after the reception of the works were of the same nature as those which had been noted during the works; that, similarly, the court has sovereignly noted that if reparations had already been made on the collector before the reception of the work, the doubts as to the technical solutions employed, which were known to the supervisor, did not allow to look at these repairs as definitive or even permanent; that it could thus deduce, without committing any error of law, that the disorders in question had the character of an apparent vice; Finally, in finding that the applicant company could apprehend the harmful consequences of the disorders involved, the court, which took into account the conclusions of studies that had been conducted on the causes of blisters and bulges observed on the hull collector, did not err in law or misrepresent the documents in the file;
With regard to contractual liability:
6. Considering that it appears from the documents in the file submitted to the judges of the fund that the company Lyonnaise des Eaux France sought the contractual liability of the companies Urban Works and Sobebo under Article 9-6 of the addendum to the cahier specific administrative clauses of the works contract concluded by the Bordeaux Urban Community, which provided a ten-year guarantee from the manufacturers for the waterproofness of the polypropylene shell;
7. Considering that under the terms of Article 26 of the leasing contract binding Lyonnaise des Eaux France to the CUB: "The farmer is authorized, either directly or through the community, to exercise recourse open to it vis-à-vis contractors and suppliers by the legislation in force "; that it is permissible for the owner to transfer to a third party to the contract, including to the principal contractor, his right to take legal action on the basis of the contractual guarantee he has against contractors of works to which he is linked ; that it follows from the actual terms of Article 26 of the contract of leasing that the common intention of the parties was to allow the company Lyonnaise des Eaux France to exercise actions in court originally belonging to the delegate, also master of the work ; that, consequently, by considering that the stipulations cited above excluded from the field of recourse opened by the legislation in force the action tending to seek the contractual responsibility of the group of companies in charge of the works on the ground that this one, unlike the decennial guarantee or the guarantee of perfect completion provided for in the Civil Code, which is based only on contractual stipulations, the Bordeaux Administrative Court of Appeal misrepresented the documents submitted to it. ;
8. Whereas it follows from all the foregoing that, therefore, its judgment must be annulled in so far as it rules on the contractual liability of the contractors;
The conclusions submitted under the provisions of Article L. 761-1 of the Administrative Justice Code:
9. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of an amount to Lyonnaise des Eaux France, which is not not, in this case, the losing party; that on the other hand, it is appropriate, in the circumstances of the case, to put on the load, on the one hand Urban Works Company and the company Axa France Iard, on the other hand, companies SMA SA and SMA brokerage and, finally, Sobebo, the sum of 1,000 euros each to be paid to the company Lyonnaise des Eaux France, under the same provisions;
Article 1: The judgment of the Bordeaux Administrative Court of Appeal of 8 June 2015 is set aside in so far as it pronounces on the contractual liability of the contractors.
Article 2: The case is remitted, within the limits of the cassation thus pronounced, to the Administrative Court of Appeal of Bordeaux.
Article 3: Urban Works and Axa France Iard, on the one hand, the companies SMA SA and SMA Brokerage, on the other hand, and finally the company Sobebo, will each pay a sum of 1,000 euros to the company Lyonnaise France under Article L. 761-1 of the Code of Administrative Justice.
Article 4: The conclusions of Urban Works, Axa France Iard, SMA SA and SMA Brokerage and Sobebo, and the remainder of the appeal by Lyonnaise des Eaux France are dismissed.
Article 5: This decision will be notified to Lyonnaise des Eaux France, Sobebo, Urbaine de Travaux, Axa France Iard, SMA Brokerage, SMA SA and the Center of Expertise. building and public works.
Copy will be sent to the urban community of Bordeaux - Bordeaux Métropole.