Provision of television services, telephone and Internet access to patients of a Hospital Center: The State Council decides for the DSP
A recent decision of the State Council on a public service delegation agreement concerning the provision of television, telephone and Internet access services to patients at a hospital center has made it possible to clarify finally the legal regime of these benefits. It is a meritorious stop but raises new difficulties.
According to the decision of the Council of State of March 7, 2014 (University Hospital of Rouen, No. 372.897 and 372.909), the provision of television subscriptions, telephone, internet access and associated services (management of physical reception, management of the patient standard, rental of PCs and tablets ...) is intended to entrust a co-contracting a mission of general interest linked to the hospital's care activity consisting in implementing all the means and activities for ensuring the communication of patients with the outside world and the contract concluded must be qualified as public service delegation.
It will be remembered that the Tribunal des Conflits, first for a contract of the same type concluded in a penitentiary institution (TC 23 November 1998, Bergeas, 03124) and then in a hospital (TC 21 May 2007, CODIAM, n ° C3609) had held that such a contract was not intended to involve the company in the performance of the public administrative service: "(...) concluded only for the needs of the public service, it does not include exorbitant clauses common law; that the fact that it authorizes the provider to occupy a specially designed room in the hospital does not have the effect of conferring on him the nature of a contract of occupation of the public domain; Whereas it follows from the foregoing that it is for the court to hear the dispute arising from its termination 'before concluding that it was a private law contract.
In the CODIAM case, the government commissioner explained: "The contract in question, which essentially concerns the rental of televisions for hospitalized patients, if it participates, no doubt in adjusting their conditions of residence, can not be regarded as tending to involve the CODIAM company in the hospital public service, which consists of a mission of diagnosis, surveillance and care. At most there is a mission incidental or peripheral to this public service and participating in the comfort of the hospital stay. "
Since then, there was total uncertainty about the legal status of these contracts and some hospitals sometimes concluded private-law contracts, sometimes public-domain occupancy agreements, sometimes public service delegation agreements and often public procurement contracts.
The CHU of Rouen had implemented a public service delegation procedure and LOCATEL had challenged this pre-contractual procedure by claiming that the contract in question was in fact a public contract. The judge of the Rouen Administrative Court by order of 4 October 2013 described the contract as a public contract and annulled the procedure.
Both the CHU and the company awarded the contract have filed an appeal in cassation before the Council of State. Recalling that this order was vitiated by error of law because the hospital did not pay any remuneration to his co-contractor, the Council of State cancels it and settling the case basically examines the qualification of the contract.
The Council of State is bold in making the activity of providing television subscriptions, telephone, Internet access a mission of general interest related to the care activity of the hospital consisting of implement all means and activities to ensure the communication of patients with the outside. The LOCATEL company had obviously argued that the care of patients and the care activity of the hospital did not imply an obligation for it to allow patients to surf the internet or access the television.
In doing so, the Council of State was confronted with the debate of the beginning of the preceding century: is any activity intended to satisfy the interest of all or part of the governed (the activity of greater service of which the Professor Chapus) can be recognized as a public service activity? Professor Hauriou refused that public theaters could be public services because the theater, according to him, "exalts the imagination, habituates the minds to a fictitious and fictitious life, excites the passions of love which are as dangerous as those of the game" (note under CE 7 April 1916, Astruc); Hauriou was not followed and were subsequently qualified as public service activities, the theater, a festival of comics, fireworks organized by the municipalities on July 14 ...
Thus, in line with this logic of extending the notion of public service, particularly to leisure and leisure activities, regardless of whether they are serious or not, the State Council is now making patient access to the Internet and on television, and therefore their communication with the outside world, a mission of general interest linked to the hospital's care activity.
The Conseil d'Etat also stresses that the contract requires the service provider to provide, free of charge, the broadcasting of television programs on televisions located in certain rooms, particularly in pediatrics.
Then, very rigorously, the Council of State rolls out the characteristics of the public service delegation by noting that its criteria are all met in this case: a public service activity, a public service type organization, obligations imposed on the public service. co-contractor and remuneration ensured by the results of the operation since the patients pay their access. The contract is therefore a public service delegation agreement.
However, the shutdown, if it solves a recurring interrogation for several years, that of the qualification of contracts for provision of television services, telephone and Internet access to patients, raises other difficulties.
By asserting that the judge hearing the application for interim relief made an error of law in finding that the contract should be regarded as concluded for value within the meaning of the provisions of Article 1 of the Code des Marches Publics when the public body did not pay no remuneration to his co-contractor and received, in return for the occupation of his domain a fee, the Council of State pursues the logic started with the CBS Outdoor judgment of May 15, 2013 (Ref # 364.593) which had refused the public contract qualification to an agreement for the installation and operation of columns and display masts.
It will be remembered that in the case of CBS Outdoor, which concerned the nature of the contract by which the city of Paris entrusted the exploitation of the Morris columns in its public domain to JC Decaux, through of an agreement which it had itself described as an agreement of State occupation, the Paris Administrative Court had qualified this contract as a public service delegation; the Paris Administrative Court of Appeal had described it as a public contract considering that an onerous counterpart existed. The Court's judgment was consistent with the DECAUX case-law of 4 November 2005 (Req No 247.298), in which the Conseil d'Etat had ruled that the exemption of royalties for occupation of the estate public constituted a benefit for consideration by the public corporation in return for the services provided by the company even though these benefits do not translate into any actual expenditure for the community.
This was not the approach of the Council of State, which considered in the judgment of May 15, 2013, that the contract did not meet the needs of an activity provided by the municipal services but also that the contract no was not concluded for value in the absence of a waiver from the public body to collect royalties.
By making the onerous nature of the contract - and thus its qualification as a public contract - dependent on the payment of remuneration to the co-contractor by the public body, the judgment of the Conseil d'Etat of 7 March 2014 follows this logic and leads to to question the qualification that the Council of State could in future put on contracts for street furniture for which no remuneration is paid by the public body to the contracting party.
Moreover, in the judgment of 7 March 2014, the Conseil d'Etat does not rule on another essential element of the public service delegation: that of the transfer of operating risk. It will be remembered that, in the judgment of 10 September 2009 WAZV Gotha (Case C-2006-08), the ECJ underlined that it was necessary to conclude that there was a public service delegation that the person public transfers all or at least a significant part of the operating risk to the concessionaire.
The administrative judge, in line with this judgment, carries out an economic analysis of the risk of exploitation (see in this sense EC ruling of 5 June 2009 "Société Avenance Teaching and Health", No. 298641).
Nothing of the sort in the judgment of March 7, 2014 which does not examine the transfer of the risk of exploitation nor does a search for the very existence of this risk ...
The judgment of March 7, 2014 finally cutting the qualification contracts for the provision of television subscriptions, telephone, internet access in hospitals offers a salutary solution but raises new questions.