Scope of settlement clauses and enforceable title
The Council of State reminds that when a contract provides for a conciliation procedure prior to a dispute or litigation the public person can not legally issue an enforceable title for the settlement of sums corresponding to a dispute relating to the performance of the contract without putting previously implemented the mandatory conciliation clause. On the other hand, it can not contractually renounce its power to issue an enforceable title against its co-contracting party after the implementation of the conciliation procedure.
Lesson 1: The obligation to respect the friendly settlement procedure provided for in the contract
Where a contract provides for a prior conciliation procedure in the event of a dispute or litigation, the public entity may not legally issue an enforceable title for the settlement of sums corresponding to a dispute relating to the performance of the contract without first implementing the compulsory conciliation clause.
It follows that an enforceable title is not legally issued if the mandatory conciliation clause is not respected by one of the parties to the contract.
In a judgment dated 28 January 2011, Department of the Alpes Maritimes, the Council of State thus recalled that a title of perception issued in breach of the contractual obligation to implement the procedure of prior conciliation provided by the market is flawed and must be canceled:
" Considering, secondly, that under Article 40 of the concession contract binding the department to the company Cicom Organization, inserted in Chapter 7 entitled Sanctions - litigation and governing all disputes between the parties: "The parties to this contract agree that disputes over the interpretation or execution thereof shall be submitted to an expert appointed jointly by the community and the manager within fifteen days of the declaration of a dispute by one of the parties. between them. (..) Failing conciliation or agreement on the appointment of an expert, disputes between the manager and the community about this contract will be submitted to the Administrative Court of Nice. " that, on the one hand, the Administrative Court of Appeal did not distort the scope of these contractual stipulations by judging that they hindered that the department emits directly enforceable titles for the settlement of the sums corresponding to a contestation on the performance of the contract, without first implementing the conciliation procedure consisting of a declaration of dispute and the joint appointment of an expert; that, on the other hand, while holding that the questioning of the accounts of the delegation by the department, yet previously approved by him, constituted such a challenge, the court gave a sovereign interpretation of the facts of the case , free of denaturation; that it legally deduced that the collection certificates issued, for the recovery of sums corresponding to this challenge, in breach of the contractual obligation to implement the prior conciliation procedure, were tainted illegality (CE 28 January 2011, Department of the Alpes Maritimes, Req.n ° 331986 with the conclusions of the Public Rapporteur Nicolas Boulouis).
The parties to the contract, including the public body, are required to comply with the pre-litigation dispute settlement procedures they have provided for (Section, 19 January 1973, Electric exploitation company of the river of Sant, p. 48). A public person can not therefore seize the judge before having implemented them, nor issue an enforceable title.
On the other hand, the failure of the amicable dispute settlement procedure renders the parties
freedom to pursue the enforcement of their rights by means of common law which are, for the co-contracting private person, the seizin of the judge and, for the public person, the issue of an enforceable title or the referral to the judge.
Teaching n ° 2: The impossibility to renounce contractually a prerogative of public power
On the other hand, the Council of State recalls that a public authority can not renounce contractually the faculty of issuing an enforceable title : " if a public person can agree, by agreement, that his power to issue an enforceable title against his debtor counterparty may be exercised only if a settlement procedure has been conciliation, it may not contractually waive either this power or its power to refer to the administrative court ".
It is a prerogative of public authority in the same way as the power of termination or unilateral amendment of the contract to which the public person can not contractually renounce.
Such a clause is considered unlawful.
The Conseil d'Etat considers therefore that the court did not err in law in rejecting a clause of the contract by which a public person would have waived to issue an enforceable title for the execution of a contractual claim.
CE 20 September 2019, Sté Valéor, Ref. No. 419381
- It appears from the documents submitted to the judges of the merits that the operation of the site n ° 3 of the center of burying of non-dangerous waste, known as "des Lauriers", located on the territory of the commune of Bagnols-en-Forêt, was entrusted by the inter-municipal association for the treatment of household waste (SITOM) of the area of Fréjus-Saint-Raphaël, now the union of sustainable development of East-Var for the treatment and recovery of household waste ( SMIDDEV), to the modern sanitation and cleaning company (SMA), to whose rights Valéor now comes, by a public service delegation agreement concluded on 31 December 2002 for an initial period of 6 years until December 31, 2008 and extended by endorsements. At the end of the delegation and following a financial audit, the SMIDDEV asked the delegate to repay various sums in respect of overpayments. The company has challenged the title of revenue n ° 2014-178 issued against it and made executable on March 28, 2014, of an amount of 735 072,36 euros, corresponding to an overpayment for the 2010 financial year. By a judgment of 22 April 2016, the Toulon Administrative Court annulled the disputed title and discharged the company of the amounts to be paid. In a judgment of 29 January 2018, the Administrative Court of Appeal of Marseilles reformed this judgment, canceled the title of receipts insofar as it had charged to the delegate a sum superior to 730 445,35 euros, unloaded the Valéor company of the obligation to pay the sum of 4,627.01 euros and rejected the surplus conclusions of this company. His appeal must be regarded as seeking the annulment of the judgment in so far as he rejected those latter conclusions.
The plea relating to the stipulations of article 12 of the public service delegation agreement:
- The documents in the file submitted to the trial court show that Article 12 (1) of the public service delegation agreement in dispute, relating to the "financial terms and conditions of payment", provides, on the one hand, that the delegate is paid by the union for waste brought by the member municipalities and by its customers and, on the other hand, that the unit prices charged are determined on the basis of an estimated operating account annexed to the agreement. The II of this article stipulates that: "The delegatee is obliged to submit annually to the Syndicate in its annual report a financial report which will have to be established on the basis and according to the model of the estimated operating account appended to this [agreement] / If the controls on the items in this operating account show that in reality the costs in the estimated operating account are higher than those actually incurred in a proportion of at least 10%, the The tariffs referred to in paragraph I of this Article shall be automatically reduced in the same proportion with effect for the year following that for which the control of the operating account has occurred.
- Firstly, the court held that if the delegate was required to produce annually a financial report detailing in particular the operating expenses actually exposed to be submitted to the deliberating assembly of SMIDDEV, the absence of observations to the annual review by the deliberative assembly that followed the submission of the financial report could not be regarded as a waiver by the delegate of any subsequent control of the minutes of the financial year in question and the implementation of implementation of the tariff revision in the manner provided for by the provisions of Article 12 II of the Convention. In so ruling, the court did not misrepresent the documents submitted to it and, in any event, did not disregard the principles of good faith and contractual loyalty.
- Secondly, by holding that the rate applicable to the tariff revision for the year following that under which the control of the financial report produced by the delegate shows that its operating costs are lower by more than 10 % the costs appearing in the estimated account annexed to the agreement is equal to that of the disproportion found at the time of this control and not, as argues the company Valéor, to the fraction of this rate exceeding 10 % of the estimated cost of exploitation, the court did not distort the provisions of Article 12 of the Convention which were submitted to it.
The plea relating to Article 15 of the public service delegation agreement:
- On the one hand, where the parties submit to the court a dispute concerning the performance of the contract which binds them, it is in principle incumbent upon the latter, having regard to the requirement of fair contractual relations, to apply the contract . However, in the case only where it finds an irregularity invoked by a party or relieved of its own motion by the unlawful nature of the content of the contract or a defect of a particular gravity relating in particular to the conditions under which the parties have given their consent, he must dismiss the contract and can not settle the dispute on the contractual ground.
- On the other hand, a public authority is inadmissible to ask the administrative judge to pronounce a measure that it has the power to take. In particular, local authorities, which can issue executory titles against their debtors, can not directly appeal to the administrative judge of a claim for recovery of their debt. However, where the claim originates in a contract, the power to issue a writ of execution available to a public body does not preclude the person from applying to the administrative court for an application for recovery, particularly in respect of part of an interim injunction initiated on the basis of Article R. 541-1 of the Code of Administrative Justice.
If a public person can agree, by an agreement, that his power to issue an enforceable title against his debtor counterparty may be exercised only if a procedure has been implemented. conciliation, it may not contractually waive either this power or its power to refer the matter to the administrative judge under the conditions set out in the preceding paragraph.
- The court found, by a sovereign undramed interpretation of denaturing, that pursuant to Article 15 of the disputed public service delegation agreement, on the settlement of disputes, the parties were required to submit their disputes to a commission. formed amicably and were then required, in case of failure of this conciliation, to bring the dispute before the competent administrative court. The court inferred from this that the contracting authority should be regarded as having waived the exercise of the power to issue an enforceable title for the recovery of its claims in the event of failure of the amicable settlement procedure. By dismissing these stipulations as unlawful, given the interpretation it thought it could give, the court did not err in law.
- It follows from all the foregoing that Valéor is not justified in seeking the annulment of the judgment it is attacking.
Article 1: The appeal of Valéor is dismissed.
Article 2: The company Valéor will pay to SMIDDEV the sum of 3,000 euros under article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the company Valéor and the Joint Union for Sustainable Development of East-Var for the treatment and recovery of household waste.