Public procurement of street furniture: failure to comply with local advertising regulations leads to the cancellation of the procedure!
The City of Paris has launched a procedure for the award of a service concession relating to the operation of public information publicity furniture. After becoming a candidate, the applicant company declined to submit an offer and asked the city to declare the procedure unsuccessful. After the designation of the successful tenderer, the said company decided to refer to the judge of the pre-contractual summary of the Administrative Tribunal of Paris which annulled the procedure on the ground of the non-respect by the documents of the consultation of the local regulation of advertising prohibiting any advertising other than advertising by projection or transparency (TA Paris, Ord. April 21, 2017, Sté Extérion Média France, n ° 1704976).
In cassation, the Council of State decided to confirm this solution.
Rule n ° 1: The specifications of a street furniture market must respect the rules of the local advertising regulations
In that case, the Conseil d'Etat considers that a procedure for awarding an urban furniture contract that does not comply with the rules of the local advertising regulation adopted by the contracting authority must be considered irregular.
The Conseil d'Etat considers that this is the case in the present case insofar as the documents of the consultation authorized the candidates to propose urban furniture supporting digital advertising in violation of the local advertising regulations adopted by the City of Paris.
The consultation documents indicated that urban furniture " will be able to support the display and the advertising not illuminated or illuminated by projection or transparency, or even numeric as an accessory "While stating that" in a proportion that can not exceed 15% furniture set up under the concession, the furniture will support the display and digital advertising ".
Rule 2: Failure to comply with the regulations applicable to the contract constitutes a breach of the obligations of advertising and competition
This judgment gives the opportunity to recall that the lack of knowledge by the specifications of a regulation applicable to the contract constitutes a breach of the obligations of advertising and.
Such a breach is likely by nature to prejudice a potential candidate or ousted to the extent that it does not permit the filing of a regular offer
Board of state
Reading of Monday, September 18th, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedures:
The company Clear Channel France and the company Extérion Media France have asked the judge of the Court of Administrative Court of Paris, on the basis of Article L. 551-1 code administrative justice, to cancel the procedure of awarding the service concession relating to the operation of public or general information urban advertising furniture, engaged by the city of Paris.
By two orders n ° 1705054 and n ° 1704976 of April 21, 2017, the judge of the administrative court of Paris has annulled the procedure of awarding the disputed service concession.
- Considering that the appeals referred to above present to judge the same questions; whereas it is necessary to join them in order to give a decision;
- Considering that according to the article L. 551-1 of the code of administrative justice: "The president of the administrative court, or the magistrate which he delegates, can be seized in case of failure to the obligations of publicity and implementation. the award by the contracting authorities of administrative contracts 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 exploitation, or the delegation of a public service (...) "; that under the terms of I of Article L. 551-2 of the Code: "I. The judge may order the author of the breach to comply with his obligations and suspend the execution of any decision relating to the awarding of the contract, except where it considers that, in the light of all the interests that may be adversely affected, and in particular the public interest, the negative consequences of such measures may outweigh their benefits./ It may in addition, annul the decisions relating to the awarding of the contract and delete clauses or requirements intended to be included in the contract which do not comply with those obligations ... ";
- Whereas it follows from the statements in the contested orders that, by a public invitation to tender, published in the Official Journal of the European Union of 24 May 2016 and in the Official Bulletin of the public procurement announcements of 22 May 2016, the Ville de Paris has initiated a procedure for the award of a service concession relating to the operation of public or general information urban furniture supporting advertising; that three nominations have been selected; that, invited by the city of Paris to submit an offer no later than October 3, 2016 by letters of July 22, 2016, the companies Clear Channel France and Extérion Media France have renounced to submit an offer; that on March 28, 2017, the company of street furniture for the publicity and information (Somupi) was designated like recipient of the concession of services; that, by two orders of April 21, 2017, the Judge pre-contractual summary of the Administrative Court of Paris, seized by the companies Clear Channel France and Extérion Media France, canceled the procedure of award of this concession; that the city of Paris and the society Somupi appeal in cassation against these orders;
- Considering, on the one hand, that according to the article L. 581-9 of the code of the environment: "In the agglomerations, (...) the advertising is admitted. However, it must comply with (...) requirements laid down by decree of the Conseil d'Etat according to the processes, the devices used, the characteristics of the supports and the size of the agglomerations concerned. This decree also specifies the conditions of use as advertising media for street furniture installed on the public domain (...) "; that under the terms of article L. 581-14 of the same code: "(...) the municipality can elaborate on the whole territory (...) of the commune a local regulation of publicity which adapts the provisions provided for in Article L. 581-9 (...) "; that under the terms of article R. 581-14 of the same code, in its wording in force when the local regulation of publicity was stopped by the mayor of Paris: "The luminous publicity is the publicity to the realization of which participates a light source specially designed for this purpose. / The provisions of this paragraph are not applicable to light advertising devices that only support projection or transparency-lit posters, which are subject to the provisions of Articles R. 581-8 to R. 581-25 "; that under the terms of article R. 581-26 of the same code, in its wording in force on the same date: "The street furniture installed on the public domain may, in an accessory way having regard to its function and in the conditions defined in this paragraph, to support non-illuminated advertising or advertising informed by projection or transparency "; that under the terms of article R. 581-42 of the same code, in its wording resulting from the decree of January 30, 2012: "the street furniture can not support digital advertising in the agglomerations of less than 10 000 inhabitants ( ...). / When supporting digital advertising, it can not be placed within 10 meters of a residential bay (...) ";
- Considering, on the other hand, that according to the article P3.1 of the local regulation of advertising, stopped by the mayor of Paris on July 7th, 2011: "street furniture installed on the public domain can support advertising, as an accessory in view of its function and under the conditions defined by Articles R. 581-14 of the Environmental Code and Articles P3 to P3.8.2 of this Regulation "; that according to the article P4.1.1 of the same regulation: "The luminous advertising, in particular the screens, is prohibited with the exception of the advertising devices installed on the roof-terraces. Advertising flashing, moving, animated or variable brightness is prohibited ";
- Considering that it follows from the combined provisions of Articles P3.1 and P4.1.1 of the Local Advertising Regulation referred to above that any luminous advertising other than advertising illuminated by projection or transparency, which is treated as non-luminous advertising , is banned on street furniture in Paris ; that the reference, by Article P3, to the provisions of Article R. 581-14 of the Environmental Code could not have the purpose or the effect of authorizing any other form of advertising light than that which is illuminated by projection or transparency, which does not include digital advertising, since the provisions of Article R. 581-26 of the Environmental Code cited in point 4, in force when the local advertising regulation has been arrested by the mayor of Paris, forbade street furniture to support light advertising, with the exception of advertising lit by projection or transparency; that if, at the date of grant of the concession in dispute, the provisions of Article R. 581-42 of the Environmental Code authorized digital advertising on street furniture in agglomerations of at least 10 000 inhabitants, the local advertising regulation of Paris has not been modified to remove the ban on digital advertising on street furniture, which results, as has been said, from the combination of its articles P3 and P4.1.1; that it follows that the judge of interim relief tainted his order or error of law or denaturation by holding that digital advertising on street furniture is prohibited by the local advertising regulation of the city of Paris ;
- Considering that it follows from the foregoing that the City of Paris and the Somupi Society are unfounded to seek the annulment of the orders at issue; that their conclusions presented under the provisions of Article L. 761-1 code administrative justice can, therefore, only be rejected; that, on the other hand, in the circumstances of this case, the sum of 5,000 euros each to be paid in equal shares by Clear Channel companies be charged to the City of Paris and Somupi; France and Extérion Media France, under the same provisions;
Article 1: The appeals of the city of Paris and the company of street furniture for advertising and information are rejected.
Article 2: The city of Paris and the public furniture company for advertising and information will each pay a total sum of 5,000 euros, in equal parts, to Clear Channel France and Extérion Media France.
Article 3: This decision will be notified to the City of Paris, the public furniture company for advertising and information, to the company Clear Channel France and the company Extérion Media France.