La résiliation du marché aux frais et risques du titulaire doit être fondée sur une faute grave et mentionnée dans la mise ne demeure

The termination of the contract at the expense and risk of the holder must be based on serious misconduct and mentioned in the bid remains

by gmorales on November 23, 2016 | Category: Public markets
La résiliation du marché aux frais et risques du titulaire doit être fondée sur une faute grave et mentionnée dans la mise ne demeure La résiliation du marché aux frais et risques du titulaire doit être fondée sur une faute grave et mentionnée dans la mise ne demeure

CE 23 November 2016, Hospices Civils de Beaune, n ° 392227

In this case, the Hospices Civiles de Beaune awarded Axima a public works contract, which was terminated at the expense and risk of the company, due to various contractual breaches. She appealed to the Administrative Court asking for the financial settlement of the contract and compensation for various losses she considered to have suffered. The trial judge dismissed his application, as did the Administrative Court of Appeal. The Council of State pronounced a first time, canceling the judgment of the judge of appeal. The latter issued a new judgment fixing the balance of the contract, against which the Hospices de Beaune lodged a main appeal and the company Axima a cross appeal. In this second judgment on this case, the Council of State recalls the conditions of regularity of a termination to the expenses and risks of the holder.

Rule n ° 1: The judge is not obliged to pronounce on a means without influence on a possible right to reparation

Axima argued first of all that the first judges had not responded to its plea alleging the incompetence of the signatory of the notice of default and the failure to comply with the adversarial principle between the stay and the notification. of the termination decision. The Conseil d'Etat holds that the judges of the merits have been able to refrain from answering this plea, without tainting their decision of omission to rule, because the latter has no influence on the existence of a right to compensation. in favor of Axima.

Rule 2: In the absence of a clause, only a fault of sufficient gravity justifies the termination of the contract to the exclusive wrongs of the holder

The Council of State recalls that in the absence of clause in the contract, only a fault of sufficient gravity allows the developer to terminate the market to the exclusive wrongs of the owner. In the case in point, the Hospices de Beaune first of all gave notice to Axima to replace, within 15 days, networks that were not compliant with the CCTP and to evacuate ducts stored in unsuitable conditions at their destination. The investigation shows that this letter of formal notice was only very partially followed by effects. Furthermore, following this formal notice, Axima made proposals to remedy the poor performance of the contract and its consequences, which did not amount to the guarantees provided for by the CTTP. Following the judges of the merits, the Council of State considers that "the importance of the contractual obligations thus ignored and the significant extent of the non-performance in the absence of elements external to the contracting party to explain them justified the termination to his exclusive wrongs ".

Rule No. 3: The termination of the contract can only be based on the non-conformities mentioned in the formal notice

The Conseil d'Etat finally recalls that pursuant to Article 49 of the CCAG Travaux, the contract may be terminated on the basis of a breach of contractual obligations only if the contracting authority has stated in the setting remainder prior to termination. In the present case, the Administrative Court of Appeal noted that the deficiencies indicated in the notice of default were included in the non-compliances mentioned in the report of the judicial expert, who had also noted other non-compliances. not in the formal notice. The applicant company therefore contended that the Administrative Court of Appeal tainted its error of law judgment by holding that breaches of which the notice of default was not mentioned would have justified the termination. The Conseil d'Etat rejects this reasoning by finding that the appeal judge did not accept all these non-compliances as having justified the termination. In fact, the Court relied on the expert's report only to establish the non-compliances mentioned in the formal notice.

Board of state
No. 392227
Unpublished at Lebon collection
5th bedroom
Mr Grégory Rzepski, rapporteur
Mr Olivier Henrard, public rapporteur
Reading of Wednesday, November 23, 2016

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:
By a decision of March 30, 2016, the Council of State, ruling in litigation, pronounced the admission of the conclusions of the appeal of the Hospices civils de Beaune directed against the judgment n ° 12LY03065 of June 2, 2015 of the administrative court of Appeal of Lyon as only that this judgment ruled on the conclusions of the Hospices civils de Beaune tending to the compensation of the cost of the benefits of recovery.

1. Considering that it appears from the documents of the file submitted to the judge of the bottom that the Hospices civils de Beaune and the company Axima, become Cofély Axima, signed on 23 July 2002 an act of commitment for the realization of the lot n ° T2 "heating, air conditioning, ventilation, smoke extraction" of the operation of reorganization of the emergency department, the operating theater and the central sterilization of the Philippe Le Bon hospital center in Beaune for an amount of 1,165,000 euros excluding taxes; that, by decision of December 18, 2003, the contracting authority pronounced the termination of the market at the expenses and risks of the company; that, by a request, registered on November 14, 2006 at the registry of the administrative court of Dijon, the company Axima asked the condemnation of the Hospices civils de Beaune to pay him, on the one hand, a sum of 497 713,01 euros TTC with the the financial regulation of the contract and, on the other hand, an amount of EUR 3 244 490.86 including taxes for the various losses which it considered that it had suffered as a result of the unjustified and irregular termination of the contract; that, by a judgment of May 27, 2010, the administrative court of Dijon rejected its request as well as the counterclaims presented by the Hospices civils de Beaune tending that the company Axima, the company group 6 SA, the office of studies Otra, Ingebat, Klim'ain, Marmet Godel energie, Gonnet, Pietra industries, Ingedia and Sait are jointly and severally condemned to pay him a sum of € 809,849.60 excluding taxes for the costly consequences of awarding a substitute contract and compensation for delays in the performance of the work attributed to these companies; that, seized a request tending to the cancellation of said judgment, the administrative Court of Appeal of Lyon, by a judgment of December 15, 2011, rejected the conclusions of society Axima tending, on the one hand, to the compensation for the loss resulting therefrom from the termination of the said contract, and the settlement by the co-contracting public company of the contractual debts in his regard on the ground that such claims tending to draw up the general statement of his contract were inadmissible in the absence of a definitive settlement of the replacement contract concluded for the completion of the works; that, by a decision of November 15, 2012, the Council of State canceled the judgment of December 15, 2011 of the Administrative Court of Appeal of Lyon and sent back the judgment of the case; that, by a judgment of June 2, 2015, the court estimated that the balance of the market in dispute should be fixed at the sum of 58 460.97 euros excluding taxes; that, by a decision of March 30, 2016, the Council of State, ruling in litigation, has admitted the conclusions of the appeal of the Hospices Civiles de Beaune against this judgment only as it has ruled on their conclusions tending to compensation the cost of the recovery services rendered necessary, in their opinion, by the lack of conformity of the services provided by Axima; that, by way of cross-appeal, the company Axima request that the judgment be annulled in so far as it dismissed its conclusions compensation;

On the cross-appeal of the company Cofély Axima:

2. Considering that, to request the cancellation of the judgment of May 27, 2010, the company Cofély Axima argued that the first judges had not responded to the plea that the decision of termination of December 18, 2003 was irregular with regard to the incompetence of the signatory of the notice of default and the breach of the adversarial principle between the formal notice and the notification of the decision to terminate; It follows from the statements in the judgment under appeal that the court was right in holding that the Dijon Administrative Court could, without tainting its judgment of failure to act, refrain from answering this plea. that it had no influence on the existence of a right to reparation for the benefit of society; that contrary to what argues the company Cofély Axima in its appeal, the court must be regarded as being doing so, implicitly but necessarily, pronounced on his ground of appeal drawn, again, the incompetence of the signatory of the decision to put in default and the lack of knowledge of the adversarial principle after the formal notice;

3. Considering that only a fault of sufficient gravity is likely to justify, in the absence of a clause provided for this purpose, the termination of a public contract to the exclusive fault of its holder; that to judge that the Civil Hospices of Beaune were justified in terminating the market at the expense and risk of the company Axima on December 18, 2013, the Administrative Court of Appeal of Lyon noted, on the one hand, that the formal notice of the 27 November 2013 to replace networks not complying with the stipulations of the special technical clauses (CCTP) within a fortnight and to dispose of ducts stored under unsuitable conditions at their destination had only been partially followed by 16 December 2013, on the other hand, that the proposals made by Axima following this formal notice to remedy the poor performance of its contractual obligations and its consequences did not amount to the guarantees provided by the CCTP in order to to comply with standards, including health, expected from a hospital; that it is clear from the documents in the file submitted to the judges of the merits that the importance of the contractual obligations thus ignored and the significant extent of the non-performance in the absence of elements external to the contracting party that could explain them justified termination to his exclusive wrongs; that, consequently, the company Cofély Axima is unfounded to maintain that the assessment made by the Administrative Court of Appeal of Lyon on the issue of whether it had committed a fault serious enough to justify this termination is tainted by a legal qualification error

4. Considering that under Article 49 of the General Conditions of Contract (GCC) applicable to the contract in question: "- 1 (...) where the contractor fails to comply with the provisions of the contract or the service, the person responsible for the contract shall give him notice to satisfy, within a specified period, by a decision notified to him in writing (...) - 2. If the contractor has not complied with the formal notice, a setting in control at its expenses and risks can be ordered or the termination of the market can be decided (...) "; it follows from these stipulations that a breach of contractual obligations can not base the termination of a contract unless it has been reported in the formal notice prior to such termination; that in the present case, in order to establish the reality of the only shortcomings which founded the decision to terminate the Hospices Civils de Beaune and which was mentioned in the formal notice of 27 November 2013, the Administrative Court of Appeal found that they were among the non-compliances in the performance of the benefits owed by the company Axima noted by the expert appointed by order of 12 March 2004 of the judge of interim relief appointed by the president of the administrative court of Dijon; that, however, it does not appear from the statements of the judgment under appeal that the judges of appeal have looked at all these non-conformities noted by the expert, that they quote while some were not mentioned in the setting in effect from 27 November 2013, as having justified the termination; that, consequently, the company Cofély Axima is unfounded to maintain that the Administrative Court of appeal tainted its judgment of error of law by judging that defaults of which the formal notice did not make state would have justified the termination ;
5. Considering that it follows from the foregoing that the cross-appeal of the company Cofély Axima must be dismissed;

On the main appeal of the Hospices Civils de Beaune:
6. Considering that it appears from the documents in the file submitted to the judge of the fund that the sum of 7 144 euros excluding taxes requested by the Hospices civils de Beaune in reimbursement of the performance of work made necessary by the lack of conformity of services performed by the company Axima is not included in the sum of 72,220 euros excluding taxes corresponding to the works not conforming to the specifications of the CCTP retained by the expert for the work refused; that by estimating that Hospices civil de Beaune did not justify that the amount of 7 144 euros was not included in that of 72 220 euros, the Administrative Court of Appeal of Lyon tainted its denaturation stop; that, therefore, its judgment must be annulled in so far as it rules on the conclusions of the Hospices Civils de Beaune for the inclusion of the sum of 7 144 euros in the cost of recovery services;
7. Considering that under the second paragraph of Article L. 821-2 code administrative justice: "When the case is the subject of a second appeal in cassation, the Council of State decides definitively on this case " ; that the case must therefore be settled on the merits;
8. Considering that it does not follow from the instruction that the work of detachment of heating pipes made for an amount of 7 144 euros HT would have been made necessary by the lack of conformity of the services carried out by the company Axima; that, consequently, the Hospices civils de Beaune are not founded to ask for reimbursement;
9. Considering that it is not necessary, in the circumstances of the case, to grant the conclusions presented by the Hospices civils de Beaune under the provisions of Article L. 761-1 of the Code of Justice administrative;

DECIDE:
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Article 1: The judgment of the Administrative Court of Appeal of Lyon of June 2, 2015 is canceled in so far as it has ruled on the conclusions of the Hospices civils de Beaune tending to the compensation of the cost of the services of recovery.
Article 2: The conclusions of the Hospices Civiles de Beaune for compensation of the cost of recovery benefits are rejected.
Article 3: The conclusions of the Hospices civils de Beaune presented under Article L. 761-1 code administrative justice are rejected.
Article 4: The conclusions of the cross-appeal of the company Cofély Axima are rejected.
Article 5: This decision will be notified to the Hospices Civiles de Beaune and Cofély Axima.