Une publication appropriée est suffisante pour déclencher le délai de recours des tiers contre un contrat administratif !

An appropriate publication is sufficient to trigger the appeal period of third parties against an administrative contract!

by gmorales the 28 April 2017 | Category: Public markets
Une publication appropriée est suffisante pour déclencher le délai de recours des tiers contre un contrat administratif ! Une publication appropriée est suffisante pour déclencher le délai de recours des tiers contre un contrat administratif !

TA Montpellier, April 20, 2017, Mr. X, No. 1506220

SNCF Réseau (formerly RFF) has entered into a partnership agreement with SAS Gare de la Mogère with a view to establishing a multi-modal exchange hub, approved by a decree, as well as a indemnity agreement providing for the conditions for prosecution. project in case of appeal. Mr X brought an application for the annulment of the partnership contract and the indemnity agreement before the administrative court, which in this case rules on the publicity measures likely to trigger the appeal third party against an administrative contract.

Rule No. 1: A third party to a partnership agreement and a indemnity agreement may ask the contract judge to cancel it

The Administrative Court first of all recalls that any third party to an administrative contract liable to be prejudiced in his interests in a sufficiently direct and certain manner by his execution or his clauses may form an unlimited remedy before the judge of the contract to contest the contract or some of its non-statutory clauses that are divisible.

This is a new example of the application of case law Department of Tarn and Garonne (EC, 4 April 2014, Department of Tarn and Garonne, n ° 358994) opening to all thirds a direct appeal of full litigation against the administrative contracts. In this case, the court admits the admissibility of such an appeal not only against a partnership contract, but also against a compensation agreement. The latter is not qualified by the administrative contract judge, but the fact that he opens the benefit of this case law suggests that he implicitly qualifies it as such.

Rule n ° 2: The deadline for appeal against a partnership contract can be triggered by the publication in JORF of the decree of approval 

The court then recalls that this recourse by third parties against an administrative contract must be exercised within a period of two months from the completion of advertising measures. But what are the publicity measures to make this period run? In the present case, the notice of award, which should have been published in the OJEU under the texts then in force, had not been published. On the other hand, the decree approving the partnership contract had been published in the JORF, with the contract in its entirety and its date of signature annexed. The appellant argued that only the notice of award allowed the deadline to run, whereas SNCF Réseau claimed that the publication made at the JORF was sufficient.

The administrative court agrees with the latter holding that " this publication, which allows for its consultation, is adapted both to the nature and the importance of the contract and is, therefore, an appropriate publicity measure likely to trigger the two-month period during which the validity of the contract or some of its clauses may be challenged ". He adds that this is the case even if the law provides that the notice of award must be sent to the OJEU. As the petition was filed more than two months after the publication of the decree at the JORF, the administrative court ruled that the appeal was late and declared it inadmissible.

Rule 3: The time limit for appealing a compensation agreement may be triggered by its publication in the Bulletin of the acts of the contracting authority

The same question arose for the appeal against the indemnity agreement. In this respect, the texts do not provide for the publication of any notice for this type of contract. However, this indemnity agreement had been fully published in the Official Bulletin of the SNCF Réseau acts, posted online and accessible to individuals.

Again, the Administrative Court considers that this publicity measure, appropriate to the nature and importance of the contract, made the appeal period of two months ". As the application was filed more than two months after this publication, the Administrative Court finds again that the appeal was out of time and declares it inadmissible.