Le recours pour excès de pouvoir des tiers contre les actes détachables du contrat n’est pas mort !

The action for excess of power of third parties against the detachable acts of the contract is not dead!

by gmorales on 27 January 2017 | Category: Public markets
Le recours pour excès de pouvoir des tiers contre les actes détachables du contrat n’est pas mort ! Le recours pour excès de pouvoir des tiers contre les actes détachables du contrat n’est pas mort !

Le recours pour excès de pouvoir des tiers contre les actes détachables du contrat n’est pas mort ! EC December 23, 2016, ASSECO - CFDT and ATTAC Montpellier, n ° 392815

Two associations have asked the State Council to cancel a decree approving a partnership contract for the design, construction, maintenance, maintenance and financing of a multimodal exchange hub. They also asked that the parties be required to apply to the contract judge for the annulment of the contract, its annexes and the indemnity agreement resulting therefrom or, failing that, to terminate them amicably.

The opportunity for the Council of State to affirm the survival of the REP third parties against an act of approval of the contract.

Rule No. 1: The act of approval of the contract may be appealed for abuse of power by third parties, regardless of recourse Department of Tarn and Garonne

We know that before the decision of the Council of State of April 4, 2014, Department of Tarn and Garonne, no. 358994, only the foreclosed competitors and the Prefect could challenge the validity of a contract, the other third parties having only the remedy in excess of power against the detachable acts of the contract, the direct appeal against the contract being closed to them . In that context, the applicants could rely not only on defects affecting the detachable act itself, but also on the illegality of the contract. By the important decision cited above, the Council of State had opened a direct appeal to all third parties of full litigation against administrative contracts and closed the way of REP against detachable acts.

The REP against the detachable acts of the contract was it dead with the judgment Department of Tarn and Garonne ? No, replies the Council of State in its judgment. It holds that, apart from the unlimited jurisdictional appeal against the administrative contract opened by the judgment Department of Tarn and Garonne, third parties are entitled to challenge before the judge of the excess of power the legality of the administrative act approving the contract.

However, the Council of State frames this remedy of conditions.

Rule 2: Third parties must avail themselves of interests to which the performance of the contract is likely to directly and

Firstly, third parties can only act in this context if they can avail themselves of interests to which the execution of the contract is likely to bring about a direct and certain harm. In this case, the two associations did not meet this condition. The Conseil d'Etat notes that ASSECO-CFDT aims to defend the interests of consumers by helping its members to assert their rights in terms of consumption and help CFDT organizations in the Languedoc region -Roussillon to better specify the links between production and consumption and to integrate the consumption dimension into their trade union policies and practices. The Conseil d'Etat considers that the execution of the partnership contract approved by the contested decree can not be regarded as likely to directly and unquestionably prejudice the interests of the consumers or organizations defended by the applicant. He therefore rejected the association's application as inadmissible. As for the association ATTAC Montpellier, its purpose is to produce and communicate information, as well as to promote and carry out actions of all kinds in order to win back, by citizens, the power that the financial sphere exercises over all aspects of political, economic, social and cultural life throughout the world. Here too, the Conseil d'Etat considers the association's application inadmissible considering that, in view of the generality of its purpose, it can not be regarded as availing itself of interests to which the execution of the partnership contract approved by the decree would be likely to bring about a direct and certain attack.

Rule No. 3: Third parties may only raise grounds based on the inherent defects of the act of approval

Secondly, the second condition imposed by the Conseil d'Etat on the exercise by third parties of an action for ultra vires against the act of approval of the contract relates to the grounds raised. Third parties may only raise pleas alleging defects in the act of approval, and not means relating to the contract itself.


Board of state 

N ° 392815

7th - 2nd rooms together

Marc Pichon de Vendeuil, rapporteur
Olivier Henrard, public rapporteur
Reading of Friday, December 23, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedures:

1 ° Under No. 392815, by a motion and a reply filed on August 20, 2015 and October 26, 2016 to the secretariat of litigation of the Council of State, the association Studies and consumption CFDT Languedoc-Roussillon (ASSECO-CFDT of Languedoc-Roussillon) asks the Council of State:

  1. to cancel for an excess of power the implied decision of rejection resulting from the silence kept by the Prime Minister on his request for the withdrawal of Decree No. 2015-154 of 11 February 2015 approving the partnership agreement between SNCF Réseau and SAS Station the Mogère for the design, construction, maintenance, maintenance and financing of the multimodal hub Montpellier Sud de France;
  2. to annul the decree of 11 February 2015;
  3. to order the parties to refer the matter to the contract judge within one month of notification of the decision to be taken, in order to declare the cancellation of the contract, its annexes and the indemnity agreement in arising or failing to amicably terminate the contract, its annexes and the indemnity agreement resulting therefrom within the same period of one month following notification of the decision to be taken;
  4. to charge SNCF Réseau a sum of 5,000 euros under Article L. 761-1 code administrative justice.

2 ° Under the n ° 392819, by a request and a memory in answer, registered on August 20, 2015 and October 25, 2016 with the secretariat of the litigation of the Council of State, the association ATTAC Montpellier asks the Council of State:

  1. to cancel for an excess of power the implied decision of rejection resulting from the silence kept by the Prime Minister on his request for the withdrawal of Decree No. 2015-154 of 11 February 2015 approving the partnership agreement between SNCF Réseau and SAS Station the Mogère for the design, construction, maintenance, maintenance and financing of the multimodal hub Montpellier Sud de France;
  2. to annul the decree of 11 February 2015;
  3. to order the parties to refer the matter to the contract judge within one month of notification of the decision to be taken, in order to declare the cancellation of the contract, its annexes and the indemnity agreement in arising or failing to amicably terminate the contract, its annexes and the indemnity agreement resulting therefrom within the same period of one month following notification of the decision to be taken;
  4. to charge SNCF Réseau a sum of 5,000 euros under Article L. 761-1 code administrative justice.

....................................................................................

Considering the other parts of the files;

Viewed:

  • the general code of local authorities;
  • the code of public contracts;
  • Order No. 2004-559 of 17 June 2004;
  • the code of administrative justice;

After hearing in open session:

  • the report of Marc Pichon de Vendeuil, master of petitions,
  • the conclusions of Olivier Henrard, public rapporteur.

Considering the note under deliberation, recorded on December 6th, 2016, presented by associations ASSECO-CFDT of Languedoc-Roussillon and ATTAC Montpellier.

1.Considering that requests nos 392815 and 392819 are directed against the decree of 11 February 2015 approving the partnership agreement between SNCF Réseau and the SAS Gare de la Mogère for the design, construction, maintenance, maintenance and the financing of the Montpellier Sud de France multimodal exchange hub; whereas it is necessary to join them in order to give a decision;

2.Considering that irrespective of the unlimited jurisdictional remedy available to third parties to an administrative contract to challenge its validity, under the conditions set out in Decision No. 358994 of 4 April 2014 of the Conseil d'Etat, ruling on the dispute, third parties who avail themselves of interests to which the performance of the contract is likely to bring a direct and certain harm are admissible to challenge before the judge of the excess of power the legality of the administrative act approving the contract; However, in the context of such an appeal, they may only raise pleas alleging defects in the act of approval, and not the pleas relating to the contract itself.

3.Considering, firstly, that the purpose of the ASSECO-CFDT Languedoc-Roussillon is, in particular, under the terms of its statutes, to defend the interests of consumers by helping its members to assert their rights with regard to consumption and "to help the CFDT organizations in the Languedoc-Roussillon region to better specify the links between production and consumption and to integrate the consumption dimension into their trade union policies and practices"; that the execution of the partnership contract approved by the decree that the association attacks can not be regarded as likely to bring a direct and certain attack on the interests of the consumers or the organizations which the applicant defends;

4. Considering, secondly, that the purpose of the ATTAC Montpellier association is to produce and communicate information, as well as to promote and carry out actions of all kinds with a view to the citizens' reconquest of the power of the financial sphere in all aspects of political, economic, social and cultural life throughout the world "; that in view of the generality of its purpose, the applicant association can not be regarded as availing itself of interests to which the execution of the partnership contract approved by the decree it attacks would be likely to certain;

5.Considering that it follows from all the foregoing that the applications of ASSECO-CFDT Languedoc-Roussillon and ATTAC Montpellier are inadmissible and must be dismissed, including their conclusions for the purpose of injunction and their conclusions presented to the provisions of Article L. 761-1 of the Code of Administrative Justice; that it is not necessary, in the circumstances of the case, to accede to the conclusions presented by SNCF Réseau and by the SAS Gare de la Mogère under the same provisions;

DECIDE:

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  • Article 1: Applications Nos. 392815 and 392819 are rejected.
  • Article 2: The conclusions presented by SNCF Réseau and the SAS Gare de la Mogère pursuant to Article L. 761-1 of the Administrative Justice Code are rejected.
  • Article 3: This decision will be notified to the CFDT Studies and Consumption Associations of Languedoc-Roussillon and ATTAC Montpellier, to SNCF Réseau, to the SAS Gare de la Mogère, to the Prime Minister and to the Minister of the Environment, Energy and the sea, responsible for international climate relations.

Record

Record