Contractual arrangements: we do not derogate from the jurisdiction of the administrative judge!
The Disputes Tribunal recalls the rule that the parties to a contract can not derogate from the rules of public order relating to the division of powers between the two levels of jurisdiction.
Rule # 1: The clauses of a contract can not derogate the division of powers between the two levels of jurisdiction.
In its decision of December 10, 2018, Isola Development Company 2000 v / Syndicat mixte for the development and operation of Isola 2000 station, No. 4143, the Tribunal des Conflits recalls that the parties to a administrative contract can not choose the order of jurisdiction competent to decide their dispute, even though they would have agreed to an attribution of jurisdiction for the benefit of the judicial judge.
In other words, the jurisdiction clause in the specifications can not defeat the application of the rules of public policy relating to the division of powers between the two levels of jurisdiction. If the contract is administrative, the parties can not insert a clause attributing the settlement of disputes to the judicial judge. And vice versa, if the contract is private law.
Recital 5 of the judgment summarizes the rule reached by the Dispute Tribunal " Considering that the agreement which bound the IAD and the mixed union and which was terminated by the latter was an administrative contract; that the dispute concerns the conditions under which the IAD must, under Article 20 of the contract, be compensated; that even though the parties would have heard, by the stipulations mentioned above, agree an attribution of jurisdiction for the benefit of the judicial judge and therefore, otherwise, that, contrary to the contention of the parties, it results of any legislative provision that the jurisdiction should be attributed to the court, the administrative judge has sole jurisdiction to hear such a dispute, including to set the amount of the capital gain to be taken into account for land surrendered on which works have been realizeds
It should be noted that the Tribunal des Conflits, the Conseil d'Etat and the Court of Cassation had already had the opportunity to recall this rule (TC 22 October 2007 Mr Chaume c / financial company Midi-Pyrenees No. 3624; TC 2 March 2009 Aubrun-Tartarin company c / national inter-professional field crop office No. 3656; EC 18 March 2005 Mr Gombert No 265143 ; Cass. First Civ., 22 January 1991, Appeal No. 89-14,757, Bull. 1991, I, No. 32).
The solution is valid for all public and private contracts whether or not they are subject to the rules of the public commission and whether they are passed by public or private purchasers.
Rule n ° 2: the clauses of a contract can however derogate to the territorial jurisdiction of a court
Article R. 312-11 of the administrative justice code retains the place of performance to determine the jurisdiction of the administrative court responsible for contracts, contracts, quasi-contracts or concessions, specifying that if their execution extends beyond beyond the jurisdiction of a single administrative court, or where the place of performance is not specified in the contract, the court of competent jurisdiction is the place of signature (In this sense CE 26 June 2015 Minister of Defense, No. 389599).
However, if the public interest does not preclude it, the parties may, either in the original contract or in an amendment before the litigation, agree that their disputes shall be submitted to an administrative tribunal other than that which would be competent under the provisions of Article R. 312-11 of the Code of Administrative Justice. The parties may therefore designate, from the outset or during the execution of the contract, the administrative tribunal which will be competent to settle their possible disputes, which may be different from that which would normally be competent by application of the criterion of the place of jurisdiction. execution of the contract, that is to say the derogatory criterion of the place of signature (CAA Bordeaux January 6, 2009, SOGREAH company, n ° 07BX00877).
In that case, the Bordeaux Administrative Court of Appeal considered that the public interest of a good administration of justice precluded derogating from the territorial jurisdiction of the court of the place of performance, since it would impede that the same jurisdiction could devote the responsibility of all the builders and that their condemnation jointly could possibly be pronounced. As a result, it is valid to question the validity of a derogating jurisdiction clause for all public works contracts.
The territorial jurisdiction conferring clause applies, by virtue of the relative effect of the contracts, only to the signatory parties so that the provisions of Article R. 312-11 of the Administrative Justice Code do not apply. the appeal for abuse of power against the detachable acts of the contract or the regulatory clauses of a concession contract (CE 10 December 1997, Musacdier, No. 470292).
Considering that on 2 July 1992 a development agreement was concluded for the development of the Isola 2000 station between the joint syndicate for the development and operation of the Isola 2000 station and the public limited company for the development of Isola 2000 (SAPSI), which was succeeded by the Isola 2000 (SAI) development company; that this agreement included an article 20 which provided that in case of termination at the request of the mixed union, the union could ask its contracting party to return the land that the municipality of Isola had assigned to the SAPSI when it had concluded with it a first management agreement, of which the SAI would still be the owner, in return for an indemnity which, for the land on which works have been carried out, would take into account a capital gain the amount of which would be estimated by the service of the estates and, "in the absence of amicable agreement on this basis", would be fixed "as in the matter of expropriation, the competent jurisdiction being seized by the most diligent party";
Considering that the development agreement was terminated by the joint syndicate on March 6, 2001; that a dispute arose between the mixed union and the SAI following this termination and the Administrative Court of Nice having, by a judgment of March 9, 2012, enjoined the company to return the land claimed by the syndicate, the Marseilles Administrative Court of Appeal, appealed against this judgment, in particular ordered the mixed union, by a judgment of July 7, 2014 become final on this point, to seize the service of the domains for the evaluation of the most -value to be taken into account when calculating the compensation due to the company for land on which work had been carried out; that it has further specified that, in the absence of agreement on the assessment proposed by the department of the estates, "the most diligent party must seize the judge expropriation"; that the service of the domains, seized by the mixed union, not having answered, the SAI asked the judge of the expropriation Alpes-Maritimes to fix the surplus-value contentious; that, by a judgment of June 22, 2017, this judge declared incompetent; that, by a judgment of July 5, 2018, the Court of Appeal of Aix-en-Provence, estimating in turn that the judge of the expropriation was incompetent, returned to the Tribunal the decision to decide on the question of jurisdiction ;
Considering that the agreement which bound the IAD and the mixed union and which was terminated by the latter was an administrative contract; that the dispute concerns the conditions under which the IAD must, under Article 20 of the contract, be compensated; that even though the parties would have heard, by the stipulations mentioned above, agree an attribution of jurisdiction for the benefit of the judicial judge and therefore, otherwise, that, contrary to the contention of the parties, it results of any legislative provision that jurisdiction should be attributed to the court, the administrative judge has sole jurisdiction to hear such a dispute, including to set the amount of the added value to be taken into account for land surrendered on which work has been done;
Whereas it follows from the foregoing that it is for the administrative court to hear the dispute