Référé suspension et délégation de service public : quelques indications sur les éléments permettant de prouver l’urgence!

Referred suspension and delegation of public service: some indications on the elements allowing to prove the urgency!

by Sébastien Palmier on 2 January 2018 | Category: Public service delegations
Référé suspension et délégation de service public : quelques indications sur les éléments permettant de prouver l’urgence! Référé suspension et délégation de service public : quelques indications sur les éléments permettant de prouver l’urgence!

CE 22nd of December 2017, Department of Mayotte, n ° 405006

In this case, the Conseil d'Etat gives interesting indications on the elements that can be taken into consideration by the judge of the interim suspension to assess the condition of urgency to suspend a decision made by a public purchaser within the framework of the execution of a public service delegation.

As a reminder, Article L. 521-1 of the Code of Administrative Justice states that the judge hearing the application for interim measures may order the suspension of the execution of a decision, or of certain of its effects, when the urgency justifies it and when a means of creating, in the state of the investigation, a serious doubt as to the legality of the decision. The condition of urgency to which the imposition of a suspension order is subject must be regarded as satisfied when the contested administrative decision prejudices in a sufficiently serious and immediate manner a public interest, the situation of the applicant or the interests he intends to defend. It must be demonstrated, supporting evidence, which was not the case here.

In that case, the public purchaser refused to issue an authorization to a subsidiary company of an undertaking holding a public service delegation for the management and operation of the Port of Longoni, with a view to enabling it to exercise a handling activity on the port area for the benefit of its parent company, delegate.

This company then challenged this decision of refusal of approval before the administrative court while requesting its immediate suspension. To find that the condition of urgency was satisfied, the judge hearing the application for interim relief relied solely on the fact that the subsidiary in question was prevented by the contested decision from exercising the premises of the Port of Longoni handling activity to which she intended.

The Conseil d'Etat will overturn this order on the ground that in order to request the suspension of the decision it is challenging, the applicant merely maintains that it is prevented, by reason of the refusal of approval, from carrying on an activity the port of Longoni, without providing any information, in particular as regards the nature and extent of its activities, its turnover or the situation of its employees, such as to establish that refusal would seriously affect, in the near future, its economic or cash position so that the condition of urgency can not be regarded as satisfied.


N ° 405006

Reading of Friday, December 22, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

 

  1. The documents in the file submitted to the judge hearing the application for interim measures show that, by a decision of 18 February 2016, the chairman of the departmental council of Mayotte rejected the application filed by the company Mayotte Channel Gateway (MCG), holder of a public service delegation for the management and operation of the Port of Longoni, so that Manu-Port is granted an authorization for carrying out a handling activity in the port area. Manu-Port applied to the judge of the administrative court of Mayotte, on the basis of Article L. 521-1 of the Code of Administrative Justice, for an application to suspend that decision. The department of Mayotte appeals in cassation against the order of 28 October 2016 by which the judge of interim relief ordered the suspension of the contested decision.
  2. According to the first paragraph of 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 for 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 ". The condition of urgency to which the imposition of a measure of suspension pursuant to those provisions is subject must be regarded as satisfied when the contested administrative decision is sufficiently serious and immediate to prejudice the public interest, the situation of the applicant or to the interests he intends to defend.
  3. To find that the condition of urgency was satisfied in this case, the judge hearing the application for interim measures relied solely on the fact that the Manu-Port company was prevented by the contested decision from exercising jurisdiction in the first instance. port of Longoni the handling activity to which it was intended. By ruling in this way, whereas such a circumstance, which does not in itself establish the seriousness of the harm done to the economic situation of Manu-Port, is not, by itself, of a kind to characterize an emergency situation within the meaning of Article L. 521-1 cited above, the judge hearing the application for interim relief made an error of law. As a result, and without any need to consider the other grounds of appeal, his order must be set aside.
  4. In the circumstances of the case, it is appropriate to settle the case under the interlocutory proceedings initiated pursuant to the provisions of Article L. 821-2 of the Administrative Justice Code.
  5. To request a stay of the decision it is challenging, Manu-Port merely claims that, as a result of the refusal of approval, it is prevented from carrying on a handling activity in the port of Longoni. , without providing any information, in particular as to the nature and extent of its activities, its turnover or the situation of its employees, such as to establish that such refusal would seriously undermine, in the short term, its economic situation or cash. It follows from the foregoing that the condition of urgency can not be regarded as satisfied. Therefore, and without it being necessary to examine the plea of inadmissibility raised by the department of Mayotte, the request of the company Manu-Port can only be rejected. 
  6. It is appropriate, in the circumstances of the case, to charge the company Manu-Port the sum of 3,000 euros to be paid to the department of Mayotte, under the provisions of Article L. 761-1 of the administrative justice code. These provisions prevent an amount from being placed in the charge of the department of Mayotte which is not, in the present case, the losing party.

DECIDE:
Article 1: The order of the judge of summary of the administrative court of Mayotte of October 28, 2016 is canceled.
Article 2: The request of the company Manu-Port is rejected.
Article 3: The company Manu-Port will pay to the department of Mayotte the sum of 3,000 euros under article L. 761-1 code administrative justice.