Précisions utiles sur les modalités d’appréciation de la condition d’urgence à suspendre l’exécution d’un contrat

Useful information on how to assess the condition of urgency to suspend the performance of a contract

by Sébastien Palmier on 3 October 2017 | Category: Public markets
Précisions utiles sur les modalités d’appréciation de la condition d’urgence à suspendre l’exécution d’un contrat Précisions utiles sur les modalités d’appréciation de la condition d’urgence à suspendre l’exécution d’un contrat

CE 18 September 2017, M.AG ... R, req.no. 408894

In this case, the Council of State recalls that the members of the deliberative body of a territorial collectivity or a group of territorial collectivities which concluded an administrative contract are admissible to form before the judge of the contract an appeal in contestation the validity of the latter and may include in this appeal a request for the suspension of its execution on the basis of Article L. 521-1 of the Code of Administrative Justice.

The interest of the judgment lies not in this reminder but in the clarifications that the Council of State makes on the modalities of appreciation of the condition of urgency to suspend the execution of a contract within the framework of an intermediary formed by members of the deliberative assembly of the contracting public entity.

The facts of the case were as follows: in a deliberation of December 15, 2016, the community council of a community of communes approved the recipient of a contract for the design of an intercommunal swimming pool and authorized its president to sign the market. This public institution subsequently merged with two other public institutions that were transferred the rights and obligations of this market.

Several councilors of the new community council then decided to appeal to the Administrative Court of Lyon for the validity of the contract while at the same time introducing an interim order suspending its execution. By an order of 27 February 2017, the judge refused the application on the ground that the condition of urgency was not met.

In cassation, the Council of State confirms the order in the light of the circumstances of the case.

 

Rule n ° 1: The assessment of the emergency condition is assessed in concreto

The Conseil d'Etat first recalls the general rule that it is for the judge hearing the application to concretely, given the justifications provided by the applicant, if the effects of the contested act are such as to characterize an urgency justifying that, without waiting for the judgment of the application on the merits, the execution of the decision is suspended. The urgency must therefore be assessed objectively in the light of all the circumstances of the case.

More specifically, in order to assess whether the condition of urgency is fulfilled in the framework of an interim order suspending the performance of a contract brought by the members of a deliberative body of a contracting authority, the Council of The State recalls that the judge of the interim suspension must take into account all the elements which the applicants claim to be capable of characterizing a sufficiently serious and immediate breach of their prerogatives or the conditions for the exercise of their mandate, the interests of the community or the grouping of public authorities of which they are elected or, where appropriate, to any other public interest.

 

Rule 2: Evidence of the Urgency to Suspend the Performance of a Public Contract

The condition of urgency remains subject to the existence of factors capable of establishing the seriousness and immediacy of the breaches that the performance of the contract is likely to bring to the interests invoked. Thus, where the object of the contract is the construction of a public work: it must be demonstrated that its execution is likely to produce irreversible effects at short notice and to a certain extent so that they can be regarded as constitutive of an emergency situation.

The Conseil d'Etat thus considers that a sufficiently serious and immediate attack on the interests defended by the members of the deliberative body of a local authority or a group of local authorities is likely to be characterized when the cost of the works which are subject to a public contract may substantially affect the finances of the community or group concerned and that the work is imminent and difficult to reverse.

The onus is on the applicant to demonstrate that in the event of performance of the contract, the cost to the public purchaser of the resolution or termination of the contract that may be imposed by the contract judge the substance of the proceedings on the merits will be such that it is preferable to suspend its execution immediately. In other words, in order to fulfill the condition of urgency, it is necessary to demonstrate the importance of the financial consequences of the performance of the contract even during the duration of the contentious proceeding on the merits.

Applying this reading, the Council of State considers that in this case, the condition of urgency is not met to the extent that the applicants merely claim that the contract was concluded for a greater amount of 17TP1 to the original estimate without providing any concrete evidence to establish the existence of a risk for local finances.

Moreover, the Council of State considers in this case that the fact that the contract was concluded by a community of municipalities before it was merged, with two other communities of communes and that, consequently, the latter is execution of a contract on which it has not decided, derives from the application of the rules on mergers of public institutions of inter-municipal cooperation and can not therefore be regarded as seriously and immediately defended by the members of the community council of the new public institutions born of this merger.

 

Rule n ° 3: The condition of urgency must be assessed independently of the means relating to the validity of the contested contract

Finally, the Conseil d'Etat also considers that, assuming that the choice to resort to a design-build contract can be considered as illegal, such an illegality can not be considered, by itself, as constituting a situation urgency within the meaning of Article L. 521 1 of the Administrative Justice Code. Clearly, any irregularities that may vitiate the procedure for the awarding of a contract can not be invoked as an emergency, but only on the condition that there is a serious doubt as to the legality of the contract. contract.

In that judgment, the Conseil d'Etat reiterates that the condition of urgency must be assessed solely in the light of the consequences of the performance of the contract whose suspension is requested and not in the light of any irregularities that may vitiate its award procedure. In order for an application for suspension to be successful, the applicants therefore have every interest in clearly distinguishing in their application the conclusions that demonstrate the urgency to be suspended and the conclusions tending to show the manifest illegality of the contract, as the latter can not no case hoping to justify any urgency.

 

Board of state
N ° 408894
7th - 2nd rooms together

Reading of Monday, September 18th, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

 

Considering the following procedure:

  1. AG ... R ..., MD..F ..., MS..Z ..., M. AB ... AC ..., MI..H ..., M. AF ... Y ..., MN..M ..., MJ..T ..., MD..C ..., ME..O ..., MA..AE ..., B ... AD ... AA ..., B ... W ... U ..., MV..Q ..., MX..G ..., MP..L ... and M. AG .. K ... asked the judge of the interim administrative court of Lyon to order, on the basis of Article L. 521-1 of the Code of Administrative Justice, the suspension of the execution of the public contract of design- realization by the community of communes Center Dombes with the company Citinea, joint agent of a group of companies, for the restructuring of the intercommunal swimming pool of Villars-les-Dombes. By an order No. 1701388 of February 27, 2017, the judge of the Lyon administrative court dismissed their claim.

By a summary appeal, registered on 14 March 2017 at the litigation secretariat of the Conseil d'Etat, Mr AG ... R ..., MD..F ..., MS..Z ..., Mr AB ... AC ..., MI..H ..., Mr. AF ... Y ..., MN..M ..., MJ .. T ..., MD..C ... , ME..O ..., MA..AE ..., B ... AD ... AA ..., B ... W ... U ..., MV..Q ... , MX..G ..., MP..L ... and Mr AG ... K ... ask the Council of State to cancel this order.

By a supplementary memorial and a reply, registered on 28 March and 5 September 2017 at the Secretariat of the Council of State, the applicants asked the Conseil d'Etat:

1 °) with regard to MM.Z ..., AC ..., M ..., Q ..., G ..., L ..., K ... and B ... U. .., to give them notice of their discontinuance of proceedings;

2 °) as regards the other applicants, to rule in cassation after cassation, to grant their request of first instance and to put at the charge of the community of communes of the Dombes, coming to the rights of the community of communes Center Dombes, the sum of 4 000 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Viewed:

- the general code of local authorities;

- Ordinance No. 2015-899 of 23 July 2015;

- Decree No. 2016-360 of 25 March 2016;

- the code of administrative justice;

  1. Considering that it appears from the documents in the file submitted to the judge hearing the application for interim relief that the community of communes of Center Dombes decided to award Citinea, the joint agent of a group of companies, a public contract on 15 December 2016 design-realization relating to the restructuring of the intercommunal swimming pool of Villars-les-Dombes, for an amount of € 5,420,000.20 including taxes; that, by a decree of the prefect of Ain from 1 December 2016, the community of communes Center Dombes was merged with two other communities of communes to constitute, as of January 1, 2017, the community of communes of the Dombes; that this decree provides that the property, rights and obligations of the merged municipalities of municipalities are transferred to the community of municipalities resulting from the merger and that this is substituted for them for the execution of the contracts concluded previously; that, on the basis of the provisions of Article L. 521-1 code administrative justice, AG ... R ... and sixteen other community advisers of the community of communes of Dombes seized the judge of referred by the Administrative Court of Lyon, on February 24, 2017, for an application to suspend execution of this public contract; that, by an order of February 27, 2017, against which Mr AG ... R ... and the other plaintiffs of first instance appealed in cassation, the judge of the summary of the administrative court of Lyon, ruling in application of the Article L. 522-3 of the Administrative Justice Code, rejected this request;

On the conclusions of MM.Z ..., AC ..., M ..., Q ..., G ..., L ..., K ... and AH ... B ... U ... seeking a declaration of their discontinuance:

  1. Whereas the discontinuance of instance of MM.Z ..., AC ..., M ..., Q ..., G ..., L ..., K ... and AH ... B ... U ... is pure and simple; that nothing prevents the act from being given;

On the appeal presented by MM.R ..., F ..., H ..., Y ..., T ..., C ..., O ..., AE ... and B .. .AA ...:

  1. Considering that under Article L. 521-1 of the Code of Administrative Justice: "When an administrative decision, even rejection, is the subject of a petition for annulment or reorganization, the judge of the interim, seized a request to that effect, may order the suspension of the execution of that decision, or of certain of its effects, where the urgency justifies it and where a means of creating, in state of the investigation, a serious doubt as to the legality of the decision (...) ";
  2. Considering that urgency warrants the suspension of the performance of an administrative contract where the latter adversely affects, in a sufficiently serious and immediate manner, a public interest, the situation of the applicant or the interests he intends to defend; whereas it is for the President of the Court to assess concretely, in the light of the justifications provided by the applicant, whether the effects of the contested act are such as to characterize an urgency justifying that, without awaiting the judgment of the application on the merits, the execution of the decision is suspended; that the urgency must be assessed objectively and taking into account all the circumstances of the case;
  3. Whereas it follows from the statements in the order under appeal that, in order to find that it was inappropriate to characterize an emergency situation, the imminent and easily reversible character of the works for the construction of the works which are the subject of the contract, of which the plaintiffs of the Lyon Administrative Court relied on the sole circumstance that they challenged the conditions under which the contract had been awarded and not the very principle of construction; that, however, as stated in point 4, it is for the judge hearing the application for interim measures, when ruling, within the framework laid down by Article L. 521-1 of the Code of Administrative Justice, on the condition in the emergency, to assess whether the effects of the contested act are such as to characterize such a situation, independently of the examination of the pleas raised before him to establish the existence of a serious doubt as to the legality of the this act ; that the judge of interim relief thus marred his order of mistake of law; that, consequently, the applicants are justified, without it being necessary to examine the other grounds of the appeal, to ask for its cancellation;
  4. Considering that, in the circumstances of the case, it is necessary, pursuant to Article L. 821-2 of the Code of Administrative Justice, to settle the case under the interim proceedings initiated
  5. Considering that the members of the deliberative body of the territorial collectivity or the group of territorial collectivities which concluded an administrative contract, or which is substituted for one of the parties to such a contract, are admissible to form before the judge of the an unlimited remedy against the validity of the appeal, provided that the appeal is lodged within two months of the completion of the appropriate publicity measures relating to its conclusion, and may be accompanied by an application tending, on the basis of Article L. 521-1 of the Code of Administrative Justice, to the suspension of its execution; whereas, in order to assess whether the condition of urgency is fulfilled, the judge hearing the application for interim relief may take into account all the factors which the applicants claim to be of such a nature as to characterize a sufficiently serious and immediate breach of their prerogatives or the conditions for the exercise of their mandate, to the interests of the community or group of public authorities of which they are elected or, where appropriate, to any other public interest;

     

  6. Considering that if an attack sufficiently serious and immediate to the interests defended by the members of the deliberative organ of a territorial collectivity or a group of territorial collectivities is likely to be characterized when the cost of the works which are the object of a public contract is likely to substantially affect the finances of the community or group concerned and that the undertaking of works is imminent and difficult to reverse, the applicants, who merely observe that the contract was concluded for an amount of greater than about 17 % in the initial estimate, do not provide any evidence to establish the existence of such a risk; that, moreover, the circumstance that the contract was concluded by the community of communes Center Dombes before this one merges, with two other communities of communes, within the community of communes of the Dombes, and that by subsequently, the latter is required to perform a contract on which it has not pronounced, follows from the application of the rules on mergers of public institutions of inter-municipal cooperation and can not, therefore, be regarded as carrying a serious and immediate attack on the interests defended by the members of the community council of the community of communes of Dombes; that, finally, assuming that the choice to use a design-build contract has in this case been unlawful, such an illegality can not be regarded, on its own, as constituting an emergency situation within the meaning of Article L. 521 1 of the Administrative Justice Code;

  7. Considering that it follows from the foregoing, without it being necessary to pronounce on the existence of means likely to give rise to a serious doubt as to the legality of the contested act, that the request of MR .. and others must be rejected;
  8. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice prevent an amount being put, as such, the charge of the community of communes of the Dombes, which is not in this proceeding, the losing party; whereas, on the other hand, it is expedient to place on the charge of MM.R., F ..., H ..., Y ..., T ..., C ..., O. .., AE ... and AH ... B ... AA ... the sum of 3 000 euros to be paid to the community of communes of Dombes under the same provisions;

 

DECIDE:

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Article1er: It is given act of the withdrawal of instance of MM.Z ..., AC ..., M ..., Q ..., G ..., L ..., K ... and AH ...DRANK....
Article 2: The ordinance of 27 February 2017 of the administrative court of Lyon is canceled.
Article 3: The request of MR .. and others as well as their conclusions presented under Article L. 761-1 code administrative justice are rejected.
Article 4: Mr. AG ... R ..., MD..F ..., MI..H ..., Mr. AF ... Y ..., MJ..T ..., MD ..C ..., ME..O ..., MA..AE ... and B ... AD ... AA ... will pay to the community of communes of Dombes a total sum of 3,000 under Article L. 761-1 of the Administrative Justice Code.
Article 5: This decision will be notified to Mr. AG ... R ..., sole representative, for all the applicants, as well as to the community of communes of Dombes.

 

Referred to the suspension of the performance of a contract introduced by the members of the deliberative body of the local authority or group of local authorities .... ,, To assess whether the condition of urgency is met, the The judge hearing the application for interim measures may take into account all the information on which the applicants claim to characterize a sufficiently serious and immediate breach of their prerogatives or the conditions for the exercise of their mandate, the interests of the community or group of public authorities whose elected representatives or, as the case may be, any other public interest.