The terms of compensation for return goods at the end of a concession contract
This judgment provides an opportunity to recall the terms of compensation for return goods at the end of a concession contract including in case of early termination
As a reminder, so-called "return" goods are all goods, movable or immovable, made or acquired under a concession contract and which are, in principle, indispensable to the operation of the service.
In the silence of the agreement, these goods are deemed to belong to the public person as soon as they are made or acquired. In addition, the parties have the option to qualify as goods of return, by contractual stipulation, goods that do not appear necessary but only useful for the operation of the service (EC 21 December 2012, Municipality of Douai, n 342788) .
At the end of the contract, the return goods are returned free of charge to the public concession holder. The free nature of the right of return is due to the fact that, since the duration of the concession contract must take into account the nature and amount of the investment requested from the concessionaire, the latter must in principle be able to amortize, in the course of execution of the contract, the installations carried out.
Rule n ° 1: the modalities of compensation for return goods at the end of a concession contract
In the event that, at the date of their return to the granting authority, these assets have not been fully amortized, the concessionaire is entitled to claim compensation up to their undamortized value.
In this respect, it is first of all conceivable that, even though the concession contract has expired, the goods of return have not been depreciated, either because the duration necessary for their depreciation was greater than the duration of the contract. contract provided for by the parties (EC 4 July 2012, Communauté d'agglomération de Chartres Métropole, no. 352417), or because, during the course of implementation, additional investments were made by the concessionaire.
In these two cases, the delegate's indemnity is calculated by reference to the net book value of the assets at the date of their delivery to the delegating authority, provided that the cost of the unamortized investments thus valued does not exceed real value of the goods.
Rule n ° 2: the modalities of return property compensation in the event of early termination of a concession contract
It is also conceivable that the goods of return have not been depreciated because of the early termination of a concession contract.
In this context, if the amortization of the assets has been calculated on the basis of a period of use shorter than the duration of the concession contract, the concessionaire may benefit from compensation equal to the net book value of the assets, such as it is recorded in the balance sheet.
On the other hand, if the amortization of the assets was calculated on the basis of a duration of use greater than the duration of the concession contract, the compensation is then equal to the net book value of the assets which would result from the amortization. the normal duration of the contract (EC 21 December 2012, Commune de Douai, cited above). The reference to the net book value of the assets is explained in particular by the fact that, in the event of early termination of a concession contract for reasons of general interest, the concessionaire is also entitled to compensation for the lack of to win.
Therefore, taking into account the economic depreciation for the calculation of the compensation for unamortized return goods, which includes the profit expected by the delegatee, would have the effect of doubly compensating the missed profit. This principle of reference to the net book value of the assets for the calculation of the compensation of the concessionaire for the unamortized return assets has a suppletive character.
The parties may thus derogate from it, by contractual stipulation, provided however that the amount of the compensation granted does not exceed that calculated according to the aforementioned modalities (EC 21 December 2012, Commune de Douai, cited above).
Lastly, there is nothing to prevent compensation being paid before the end of the contract, including at the beginning of its performance, provided that it corresponds to this net book value of the assets delivered (EC 13 February 2015, Agglomeration Community of Epinal, n ° 373645).
Board of state
Marc Firoud, rapporteur
Gilles Pellissier, public rapporteur
Reading of Wednesday, October 25, 2017
IN THE NAME OF THE FRENCH PEOPLE
Considering the following procedure:
The commune of Le Croisic asked the administrative court of Nantes to condemn the department of Loire-Atlantique to pay him a sum of 1,382,237 euros, with default interest and their capitalization, compensation for damages suffered as a result of the termination of the concession of the Croisic marina. By a judgment n ° 1200815 of May 21st, 2014, the administrative court of Nantes condemned the department of Loire-Atlantique to pay a sum of 957 095,45 euros, with interest arrears from October 21st, 2011 and their capitalization, in the municipality of Croisic to repair the undamaged value of the goods of return, the loss of the profits missed and the loss of the funds of cash.
By a judgment n ° 14NT01984 of June 28, 2016, the administrative court of appeal of Nantes, on appeal of the department of Loire-Atlantique, canceled this judgment and rejected the requests of the commune of Croisic.
By a summary appeal, an additional memorandum and a new brief, registered on 29 August, 29 November 2016 and 28 March 2017 at the litigation secretariat of the Conseil d'Etat, the commune of Le Croisic asks the Conseil d'Etat:
1 °) to annul this judgment;
2 °) settling the case on the merits, to dismiss the appeal of the Department of Loire-Atlantique;
3 °) to charge the Department of Loire-Atlantique the sum of 4 000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the file;
- the general code of local authorities;
- the code of administrative justice;
- Considering that it appears from the documents of the file submitted to the judges of the bottom that the State conceded to the municipality of Croisic (Loire-Atlantique), by an order of February 27, 1970, the establishment and the exploitation of a port of pleasure ; that following the intervention of the laws of decentralization, the department of Loire-Atlantique replaced the state in 1983; that, by a deliberation of May 6, 2010, the permanent commission of the general council terminated for reasons of general interest the concession of the marina of Croisic as of December 31, 2010; that the town of Le Croisic has asked the department to pay him compensation of 1,382,237 euros for damages suffered as a result of this termination; that, the department having satisfied this request only with amount of 45 367 euros, the commune seized the tribunal administrative of Nantes which, by a judgment of May 21, 2014, condemned the department of Loire-Atlantique to him pour EUR 957 095,45; that, by a judgment of June 28, 2016, against which the town of Croisic appeals in cassation, the administrative court of appeal of Nantes canceled the judgment of the administrative court of Nantes and rejected the demand of the commune of Croisic;
- Considering that, in order to determine the compensation rights of the municipality, the administrative court of appeal of Nantes has applied the provisions of article 45 of the specifications of the concession, according to which, in the event of termination, the grantor shall "provide for the payment of the remaining annuities for the interest and amortization of the loans allocated for the establishment of the tools and bear all expenses regularly incurred which would be connected with the administration of the service"; that it interpreted Article 45 as excluding any additional compensation, in particular for the investments made by the concessionaire out of its own funds, and found that the compensation due on the basis of its provisions did not exceed the amount of 45,367 euros paid by the department; however, it noted that, while the general rules applicable to administrative contracts allow the parties to determine the extent and the terms of the counterparty's rights to compensation in the event of termination of the contract on a ground of general interest, the prohibition granted to public persons to grant benevolence excludes the result, to the detriment of a public person, of a manifest disproportion between the indemnity thus fixed and the injury suffered; that she therefore sought what had been the harm actually suffered by the commune; that, in this context, it considered that the existence of a possible loss of earnings due to the termination was not established, that the municipality was not intended to recover the cash funds of the concession, that it did not justify having financed some of the concession property out of its own resources and, assuming that this was the case, the net book value of the unamortized property would amount to € 200,039.72; that it deduced that the amount paid by the department pursuant to Article 45 of the specifications was not manifestly disproportionate to the damage suffered by the municipality;
Considering, however, that the parties to an administrative contract may determine the extent and the terms of the counterparty's rights to compensation in the event of termination of the contract on a ground of general interest, provided that it does not result , to the detriment of a public person, a manifest disproportion between the indemnity thus fixed and the injury suffered, the setting of the modalities of indemnification of the undepreciated part of the goods of return in a contract of concession obeys, taking into account the the nature of such harm, to specific rules; that when a public person cancels a concession before its normal term, the concessionaire is entitled to claim compensation for the damage he suffers because of the early return of the property free of charge to the public authority's patrimony, since they could not be totally amortized; whereas when the amortization of these assets is calculated on the basis of a period of use shorter than the duration of the contract, this compensation is equal to their net book value entered in the balance sheet; that, in the case where their duration of use was greater than the duration of the contract, the compensation is equal to the net book value which would result from the depreciation of these goods over the duration of the contract; that if, in the presence of an agreement concluded between a public person and a private person, it is open to the parties to derogate from these principles, provided that the indemnity charged to the public person in respect of these goods does not in any event, exceed the amount calculated in accordance with the terms and conditions set out above, it is excluded that such a derogation, allowing the indemnification or partial indemnification of unamortized return assets, to be partially the contract where the concessionaire is a public person;
- Considering, therefore, that in considering that it could be based on the stipulations of Article 45 of the specifications of the concession to assess the compensation rights of the municipality for the undamortized value of goods return subject only to the fact that their application does not lead to an amount which is manifestly disproportionate in the light of the damage suffered by it, whereas it was for it, in the case of a concession contract concluded between two public persons, to verify that the contractual stipulations allowed to assure to the concessionaire the compensation of the undepreciated part of the goods of return in the conditions recalled in point 3 and, failing that, to dismiss them, the court tainted its judgment of error of law and lack of motivation; It follows from the foregoing that the municipality of Le Croisic is founded, without it being necessary to examine the other grounds of its appeal, to request its annulment;
- Considering that it is appropriate, in the circumstances of the case, to charge the Department of Loire-Atlantique the sum of 3,000 euros to be paid to the commune of Croisic under Article L. 761- 1 of the Administrative Justice Code;
Article 1: The judgment of the administrative court of appeal of Nantes of June 28, 2016 is canceled.
Article 2: The case is referred to the Administrative Court of Appeal of Nantes.
Article 3: The department of Loire-Atlantique will pay the commune of Croisic the sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 4: This decision will be notified to the municipality of Croisic and the Loire-Atlantique department.