Action to cancel a concession contract by a local taxpayer: beware of false joys!
When a local taxpayer disputes the validity of a contract, it is his responsibility to establish that the agreement or the clauses whose validity he disputes are likely to have significant consequences on the finances or the heritage of the community. The Council of State also specifies the possibility of claiming the cancellation of an already terminated contract.
Lesson 1: On the possibility of obtaining the cancellation of a terminated concession contract
In its judgment, the Council of State considers that there is no reason to deprive of object the appeal in dispute against contracts which are already terminated. Specifically, the administrative judge indicates that " the fact that the concession contract was terminated is not such as to deprive the object of the present appeal ".
This position of the Council of State is not surprising since a terminated contract no longer has an effect only for the future, but its past effects remain. Consequently, they can cause harm to a third party and justify the challenge to the validity of the contract in the context of an appeal “ Tarn-et-Garonne "(CE, Ass., April 4, 2014, req. N ° 358994). Any third party can have a commercial, strategic or other interest in asking the judge for the outright cancellation of a contract and not its simple termination.
Lesson 2: On the assessment of the local taxpayer's interest in taking action
Contrary to what may have been written, this judgment of March 27, 2020 does not mark the opening of the action “ Tarn-et-Garonne To local taxpayers. Indeed, as of 2014, the Council of State laid down as a principle the opening of this recourse to “ any third party And therefore, by definition, local taxpayers.
Unlike prefects and elected officials who, by virtue of their quality, are exempt from demonstrating an interest in taking particular action, the local taxpayer must establish that the contract or the clauses whose legality he challenges " are likely to have significant consequences on the finances or the heritage of the community ".
Examination of all appeal decisions " Tarn-et-Garonne Shows the extreme severity of the judge on the interest to act of third parties. The vast majority of decisions rendered by the appellate courts and by the Council of State consider that the interest in bringing proceedings is not fulfilled. For the local taxpayer, the increase demonstration exercise " significant "Charges on local finances will be particularly complicated if not impossible and the judge will have the leisure to use the vagueness of the term" significant To dismiss third party claims. The current state of jurisprudence on this subject is far too protective of the Administrations.
Consequently, if this judgment of the Council of State breaks that of the Administrative Court of Appeal of Nancy, it does not give reason for local taxpayers. The High Court criticizes the appellate court for not having correctly reasoned its judgment and therefore refers the dispute to this same Court. We must now wait for a modulation of the case law " Tarn-et-Garonne »So that the principle of legality finds its proper place.
Considering the following:
- It appears from the documents in the file submitted to the trial judges that, by a deliberation of April 15, 2011, the council of the urban community of Grand Nancy, which has since become the metropolis of Grand Nancy, authorized its president to sign with the ERDF companies, now Enedis, and EDF, a concession contract for the public service for the development and operation of the distribution and supply network of electrical energy at regulated prices. By a judgment which became final on May 12, 2014, the Nancy Administrative Court of Appeal annulled this deliberation as well as the decision of the president of the urban community to sign this agreement as contained in its specifications articles 2 and 19 relating to the ownership of electric meters, and article 31 concerning the indemnity at the end of the contract in the event of early termination, which included illegal clauses. Drawing on the consequences of this judgment, the urban community of Greater Nancy signed, on February 25, 2015, with the companies EDF and ERDF an amendment to amend the clauses of articles 2, 19 and 31 of the contract. Availing themselves of their status as users of the public service and of local taxpayers, MIH and others asked for the annulment of this endorsement before the Administrative Court of Nancy which rejected their request by a judgment dated May 2, 2017. They appeal in cassation against the judgment of October 16, 2018 by which the administrative court of appeal of Nancy rejected the appeal which they brought against this judgment.
On the conclusions for dismissal presented by the metropolis of Grand Nancy:
- The metropolis of Grand Nancy argues that by a decision of the metropolitan council of December 20, 2019, the disputed concession contract was terminated from December 31, 2019 and that the claim of the applicants is consequently private object. However, the fact that the concession contract was terminated is not such as to deprive of object of this appeal, which tends to the annulment of the endorsement adopted on February 25, 2015 and which was in force as from from this date. His claims for dismissal must therefore be dismissed.
On the appeal:
- Independently of the actions available to the parties to an administrative contract and of the actions opened before the judge of the excess of power against the regulatory clauses of a contract or before the judge of the summary judgment on the basis of articles L. 551-13 and following of the administrative justice code, any third party to an administrative contract likely to be injured in its interests in a sufficiently direct and certain way by its conclusion or its clauses is admissible to form before the judge of the contract an appeal of full jurisdiction contesting the validity of the contract or of some of its non-regulatory clauses which are divisible from it. This appeal must be exercised within two months of the completion of the appropriate publicity measures, in particular by means of a notice mentioning both the conclusion of the contract and the procedures for consulting it while respecting the secrets protected. by the law.
- Seized by a third party under the conditions defined above of conclusions contesting the validity of a contract or certain of its clauses, it is up to the judge of the contract to verify that the author of the appeal other than the representative of the State in the department or that a member of the deliberative body of the territorial collectivity or grouping of territorial collectivities concerned avails itself of an interest likely to be injured in a sufficiently direct and certain manner. When the author of the action claims to be a local taxpayer, it is up to him to establish that the agreement or the clauses whose validity he disputes are likely to have significant consequences for the finances or the heritage of the community.
- It appears from the grounds of the judgment under appeal that MIH and others relied in particular on their status as local taxpayers to contest, on the one hand, the validity of the clauses of the addendum relating to the delimitation of the perimeter of the concession works, of which they considered that they did not include in return goods which, in principle, return free of charge to the granting authority at the expiration of the concession, devices for intelligent monitoring, control, coordination and storage of electrical flows mentioned in article 2 of the amended specifications, according to them, that this equipment was necessary for the operation of the Linky meters and, therefore, for the operation of the public service. They also contested the validity of the clauses relating to the compensation likely to be paid to the concessionaire in the event of early termination of the contract, the application of which they considered could exceed the amount of the damage actually suffered by the latter and thereby constitute a prohibited gift.
- To rule out the applicants' interest in acting as local taxpayers, the court first of all based on the random nature of the deployment of the devices excluded from the list of works conceded by article 2 of the specifications and on the uncertain nature of the implementation of the clause relating to early termination of the contract. In doing so, it erred in law, the possible or uncertain nature of the implementation of clauses being in itself devoid of any impact on the assessment of their possible impact on the finances or the assets of the granting authority . Secondly, based on the specificity of the provisions of the energy code, of which article L. 111-52 fixes exclusive service areas for public network operators and thereby attributes a legal monopoly to the Enedis company, and over the duration of the disputed agreement, which was concluded for thirty years, to consider that the implementation of the compensation for early termination of the contract was too hypothetical to be sufficient to establish that the finances or the assets of the metropolis would be significantly affected, whereas in the light of scientific, technical, economic and legal developments specific to the energy sector, modifications to such a concession are likely during the period covered by the contract and could in particular require the implementation of the clauses criticized, the court committed another error of law. Consequently, and without there being any need to examine the other grounds of appeal, his judgment must be set aside.
- It is necessary, in the circumstances of the case, to charge the metropolis of Grand Nancy and the companies Enedis and EDF respectively for the sum of € 1,000 to be paid each to the applicants, under the provisions of the article L. 761-1 of the code of administrative justice. The same provisions, on the other hand, prevent an amount from being charged against the applicants in this respect, who are not, in the present proceedings, the losing party.
Article 1st : The judgment of October 16, 2018 of the Nancy Administrative Court of Appeal is set aside.
Article 2: The case is referred to the Nancy administrative court of appeal.
Article 3: The metropolis of Greater Nancy, the company Enedis and the company EDF will each pay a total sum of € 1,000 to the applicants, under the provisions of article L. 761-1 of the
administrative justice. The conclusions of the metropolis of Grand Nancy, of the company Enedis and of the company EDF presented under the same provisions are rejected.