Résiliation pour motif d'intérêt général d'une convention conclue entre deux personnes publiques:

Termination for reasons of general interest of an agreement concluded between two public entities:

by gmorales on March 23, 2015 | Category: Public markets
Résiliation pour motif d'intérêt général d'une convention conclue entre deux personnes publiques: Résiliation pour motif d'intérêt général d'une convention conclue entre deux personnes publiques:

Résiliation pour motif d'intérêt général d'une convention conclue entre deux personnes publiques: Rule n ° 1: the possibility of terminating an agreement concluded between two public entities for a reason of general interest :

An agreement concluded between two public persons relating to the organization of the public service or to the arrangements for the joint realization of a project of general interest may be subject to unilateral termination only if a ground of general interest justified.

Rule 2: Examples of reasons of general interest justifying a unilateral termination

In this case, the Council of State gives some examples of reasons of general interest which can justify a unilateral termination. The disruption of the balance of the agreement or the disappearance of the cause or object of the agreement constitute reasons of general interest justifying a unilateral termination. On the other hand, for the Council of State the only appearance, during the execution of the agreement, an imbalance in the relations between the parties is not likely to justify such a termination.

In the present case, the agreement in question was concluded by the communes of Béziers and Villeneuve-lès-Béziers with the aim of sharing the professional tax resources paid by the companies located in an industrial zone which they had created and which they managed in common. This convention thus served a common public interest to both communities. The Conseil d'Etat considers that the mere fact that the agreement no longer satisfies the interests of one of the two parties can not be regarded as a ground of general interest justifying its unilateral termination.
This solution

Rule 3: Some details on the duration of agreements concluded between public entities

As a reminder, in a judgment dated 3 February 2012, Commune Veyrier-du-Lac, the Council of State has already had the opportunity to recall that a contract by which several contracting authorities, even though no report of control does not bind them, decides to pool contractually their means for the management of their services, is not subject to the rules of the public order (CE 3 February 2012, Commune Veyrier-du-Lac, No. 353737). This type of agreement is therefore subject to contractual freedom between the parties.

In other words, the parties are free to draft their agreement as they see fit, provided that they do not introduce clauses that could be considered illegal or abusive. In this case, the Council of State takes this opportunity to remind logically that such conventions do not require that they include a fixed term.

Rule n ° 4: some clarifications on the rule of the preliminary request indemnity and the connection of the litigation

Except in the case of public works, a claim for compensation before the administrative judge must be preceded by a preliminary compensation application addressed to the administration. In administrative law, this preliminary request allows the liaison of the litigation. In the absence of prior liaison, the complaint is irreceivable. It is therefore a procedural rule that must be respected to avoid any pitfall.

In its judgment of 27 February 2015, Commune de Béziers, the Council of State recalls that this ground of inadmissibility can be regularized, by involving the connection of the litigation during the proceedings: it is sufficient that the claim compensation preliminary be rejected by the administration before the judge decides (this will always be the case a priori when the average duration of a case is 10 months ....).

Therefore, there are two ways to link the litigation in the course of proceedings: the first is to seize the administration of a prior request after the introduction of the request: in this case, an express decision of rejection of the administration, or its silence kept for two months (this period must expire before the judge rules), as is the case in this case, will bind the dispute (see paragraph 9 of the judgment).

Even more subtle, and able to function as a trap for the administration: the Council of State admitted that the litigation could be bound by the mere fact for the administration to defend on the merits (4), which means that if the applicant has failed to send him a preliminary indemnity application, before or after the submission of his application, it must refrain from raising in defense a means other than that of the absence of liaison litigation, under penalty of seeing this cause of inadmissibility of the application disappear.

Board of state

N ° 357028
Published in Lebon collection
3rd / 8th SSR
Mr Guillaume Odinet, rapporteur
Mrs Emmanuelle Cortot-Boucher, public rapporteur
SCP NICOLAY, DE LANOUVELLE, HANNOTIN; SCP ODENT, CHICKEN, lawyer (s)

Reading of Friday, February 27, 2015
FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the summary appeal and the complementary memorandum, registered on February 22nd and May 23rd, 2012 to the secretariat of the litigation of the Council of State, presented for the municipality of Béziers, represented by its mayor; the municipality asks the Council of State:

1 °) to annul the judgment n ° 10MA00087 of December 19th, 2011 by which the administrative court of appeal of Marseilles, on return of the Council of State, rejected its request of first instance tending that the municipality of Villeneuve -les-Beziers be ordered to pay him compensation of 591 103.78 euros and 45 374.70 euros in damages with interest to capitalize from 21 October 1999 in compensation for the damage it suffered as a result of the termination of the agreement which they concluded on October 10, 1986;

2 °) settling the case on the merits, to grant his request of first instance;

3 °) to put in the load of the commune of Villeneuve-lès-Béziers a sum of 4 000 euros under article L. 761-1 of the code of administrative justice;

Considering the other parts of the file;
Considering the note under deliberation, registered on January 28, 2015, presented for the municipality of Béziers;
Given the civil code;
Given the general code of local authorities;
Considering the code of administrative justice;
After hearing in open session:

- the report of Mr. Guillaume Odinet, master of petitions,
- the conclusions of Emmanuelle Cortot-Boucher, public rapporteur.

The word having been given, before and after the conclusions, to the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the commune of Béziers and to SCP Odent, Poulet, lawyer of the municipality of Villeneuve-lès-Béziers;

1. Considering that under Article 11 of the law of 10 January 1980 on the development of local direct taxation in its then applicable version, when a group of municipalities created or managed a zone of economic activities and that the business tax was levied by a single municipality in whose territory the companies were located, the municipalities members of the group could enter into an agreement to distribute among them all or part of the communal share of this tax; it appears from the documents in the file submitted to the judges of the merits that, within the framework of a multi-purpose intercommunal syndicate they had created for this purpose, the communes of Béziers and Villeneuve-lès-Béziers have carried out an extension of an industrial zone entirely located in the municipality of Villeneuve-lès-Béziers; that, by an agreement signed by their two mayors on October 10, 1986, these collectivities agreed that the commune of Villeneuve-lès-Béziers would pay to the commune of Béziers a fraction of the sums which it would receive under the business tax;

2. Considering that, by letter of 22 March 1996, the Mayor of Villeneuve-lès-Béziers informed the Mayor of Béziers of his intention to terminate this agreement as of 1 September 1996; that, by a judgment of March 25, 2005, the administrative court of Montpellier, seized by the municipality of Béziers, rejected his request that the municipality of Villeneuve-lès-Béziers is condemned to pay him an allowance of 591 103, 78 euros in respect of sums not paid since the termination of the agreement, as well as an amount of 45,374.70 euros for damages; that, by a judgment of June 13, 2007, the Administrative Court of Appeal of Marseille, after having annulled for irregularity the judgment of the Administrative Court of Montpellier, judged that the convention of October 10, 1986 was to be declared null and rejected the request from the municipality of Béziers; that, by a decision of December 28, 2009, the Council of State, ruling in litigation, canceled this judgment insofar as he rejected the request of the municipality of Béziers and returned the case, to that extent, before the court administrative appeal of Marseille; that the municipality of Béziers appeals in cassation against the judgment of December 19, 2011 by which this court has again rejected his request;

3. Considering that an agreement concluded between two public persons relating to the organization of the public service or to the arrangements for the joint realization of a project of general interest can be the subject of a unilateral termination only if a ground of general interest justifies it, particularly in case of disruption of the balance of the agreement or the disappearance of its cause; whereas, on the other hand, the mere appearance, during the execution of the agreement, of an imbalance in the relations between the parties is not likely to justify such a termination;

4. Considering that it follows from the wording of the judgment under appeal that the court noted that the contract at issue, concluded on the basis of Article 11 of the Law of 10 January 1980 for an indefinite period, intended to take account of the decrease in revenue resulting from the transfer to the industrial estate of businesses located on the territory of the municipality of Béziers, the realization of primary equipment by the municipality of Béziers and services provided in the area by this municipality; that it judged that the commune of Villeneuve-lès-Béziers had been able, without committing of fault, to pronounce the unilateral termination of this convention because of the "rupture of the economic equilibrium" of this one from then on, of on the one hand, that the primary equipment was depreciated and that the municipality of Béziers no longer insured, on the date of termination, any services on the area and, on the other hand, that no agreement between the parties had been able to be found to re-examine the content of the agreement; that it thus considered that the balance of the convention had been upset and that the convention had lost its cause;

5. Considering, however, firstly, that it appears from the documents in the file submitted to the judges of the fund that the disputed agreement was intended to distribute the product of the communal share of the business tax levied by the municipality of Villeneuve- les-Béziers on companies established in an area located on its own territory and managed by an intermunicipal group of which it was part with the commune of Béziers; that the payment to which the municipality of Villeneuve-lès-Béziers had committed had thus in counterpart the renunciation of the commune of Béziers to collect a tax on companies which, because of the implantation of the industrial zone on the territory of the commune of Villeneuve-lès-Béziers, were taxable only by this one; that this waiver had remained unchanged at the date of the termination in dispute; that thus, the counterpart that the commune of Villeneuve-lès-Béziers drew from the convention not having been affected, it does not appear from the documents of the file submitted to the judges of the bottom that the convention had lost its cause;

6. Considering, on the other hand, that neither the circumstance, the occurrence of which was known at the date of the signature of the agreement for an indefinite period, that the primary equipment had been depreciated, nor that that the "services provided on the area by the municipality of Beziers ", on which the convention did not contain any precision, had ceased to characterize a disruption of the balance of the convention, especially since, as has been said, it appears the documents submitted to the judges of the merits that the waiver, by the municipality of Béziers, to collect revenue from business tax continued to produce its effects;

7. Considering, therefore, that in holding that the municipality of Villeneuve-lès-Béziers could, without committing any fault, pronounce the unilateral termination of this agreement because of the "rupture of the economic equilibrium" of that ci, the court tainted its judgment of error of legal qualification; that judgment must, for that reason and without it being necessary to examine the other grounds of the appeal, be set aside;

8. 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;

On the submissions tending to the commitment of the contractual liability of the municipality of Villeneuve-lès-Béziers:

With regard to the end of non-reception opposed by the municipality of Villeneuve-lès-Béziers:

9. Considering that it follows from the investigation that the municipality of Béziers has seized the administrative court of Montpellier of indemnification conclusions without having previously submitted a request to the municipality of Villeneuve-lès-Béziers; that, however, the litigation was bound by the birth of an implied decision of rejection of the claim for compensation presented on November 6, 2003, in the course of proceedings, by the municipality of Béziers to the municipality of les-Béziers; that the end of non-receipt of the municipality of Villeneuve-lès-Béziers must, therefore, be dismissed

With regard to the application of the contract:

10. Considering, on the one hand, that the circumstances that the retranscription in the record of deliberations of the deliberation authorizing the municipal council of Villeneuve-lès-Béziers to sign the contested agreement is incomplete, that the register was not signed by all the councilors present without mentioning the cause that prevented the other councilors from signing it, that the register bears the signature of an absent municipal councilor and that the stamp relating to the posting of the The extract from the register does not bear the signature of the mayor can not characterize a vice of a particular gravity relative to the conditions in which this commune gave its consent; that the plea of absence of minutes of the meeting is in fact lacking;

11. Considering, on the other hand, that no principle governing the operation of the public service required the agreement in question to contain a specific term;

12. Considering, finally, that the absence of transmission of the deliberation authorizing the mayor to sign a contract before the date on which the mayor proceeds to his signature, from which it follows that this deliberation is not yet enforceable, constitutes a defect affecting the conditions under which the parties gave their consent; that, however, having regard to the requirement of loyalty of the contractual relations, this sole defect can not be regarded as of a gravity such that the judge must dismiss the contract and that the dispute which pits the parties must not be decided on the contractual field;

13. Considering, therefore, that the disputed convention must be applied;

Regarding liability:

14. Considering that, as has been said, the agreement in dispute was concluded by the municipalities of Béziers and Villeneuve-lès-Béziers in order to share the professional tax resources paid by the companies located in the industrial zone that they had created and managed in common; that it thus responded to a common public interest in both communities; that in these circumstances, the only circumstance, assuming established, that the convention no longer satisfied the interest of the municipality of Villeneuve-lès-Béziers can not be regarded as a ground of general interest likely to justify the unilateral termination; that the municipality of Villeneuve-lès-Béziers does not invoke any other element likely to characterize a ground of general interest, appreciated taking into account the various public interests affected by the convention in dispute, justifying the termination of this convention; that, in particular, it follows from what was said in points 5 and 6 that the cause of the agreement in question had not disappeared and that its balance had not been upset;

15. Considering, therefore, that in pronouncing the unilateral termination of the disputed agreement on the sole ground that it was now aggrieved by its stipulations, the municipality of Villeneuve-lès-Béziers committed a fault of a nature to commit its responsibility ;

16. Considering that the municipality of Béziers is entitled to obtain compensation for the direct and certain damage resulting from the wrongful termination of the agreement; this is the case of the fraction of the sums collected by the municipality of Villeneuve-lès-Béziers in respect of the business tax which was to be paid to him by virtue of the stipulations of the terminated agreement; that the municipality of Béziers only asks for the compensation of the sums it did not collect for the years 1996 and 1997, of which it evaluates the total amount, according to the application which had been made of the stipulations of the contract of September 1st 1986, to 591 103.78 euros; that, if the municipality of Villeneuve-lès-Béziers contests the calculation of this amount, it brings no element relating to the determination of the sums which it should have paid back in application of the convention; it does not follow from the investigation that the amount requested by the municipality of Béziers proceeded to an exaggerated evaluation of its damage; that the municipality of Villeneuve-lès-Béziers must therefore be ordered to pay him a sum of 591 103.78 euros for its damage resulting from the absence of repayment of the fraction of business tax provided by the convention;

17. Whereas, on the other hand, if the municipality of Béziers maintains that it suffered a loss of 45,374.70 euros because of the fact, not of the premature termination of the contract, but of the conditions of its termination, it does not provides no evidence to justify the reality and extent of such harm; that it is therefore unfounded to claim compensation;

18. Considering that it follows from the foregoing that the claim for compensation of the municipality of Béziers should be granted in the amount of 591 103.78 euros; that the municipality is entitled, as it asks, that this sum bears interest at the legal rate from the date of presentation of its prior application to the municipality on November 6, 2003;

19. Considering that, if the municipality requested the capitalization of interests by registered memories on May 18, 2000, October 12, 2000, February 7, 2001, November 12, 2002 and June 16, 2003, it follows from what has just been said that on these dates he was not due more than one year of interest; whereas on the other hand, on December 22, 2004, when the municipality again requested the capitalization of the interests, it was due more than one year of interest on the sums requested; whereas, therefore, in accordance with Article 1154 of the Civil Code, it is necessary to order capitalization on that date and each subsequent annual maturity;

On the claims for liability for quasi-delictual and quasi-contractual liability of the municipality of Villeneuve-lès-Béziers:

20. Considering that the municipality of Béziers, which is linked to the commune of Villeneuve-lès-Béziers by a contract, can not exert against it, because of the damages for which it demands compensation, other action that resulting from this contract, since it must be applied; that, consequently, the conclusions presented by the municipality of Béziers tending to the commitment of the quasi-contractual responsibility of the municipality of Villeneuve-lès-Béziers with reason of unjust enrichment and the commitment of the quasi responsibility -delictuelle thereof due to the fault of his mayor to have entered into a convention without being regularly authorized by the city council must be rejected;

The conclusions presented under Article L. 761-1 of the Administrative Justice Code:

21. Considering that the provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of a sum in this respect to the municipality of Béziers, which is not, in the this proceeding, the losing party; On the other hand, in the circumstances of the case, it is appropriate to charge the municipality of Villeneuve-lès-Béziers the sum of 6 000 euros to be paid to the municipality of Béziers under these provisions. ;

DECIDE:
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Article 1: The judgment of the Marseille Administrative Court of Appeal of 19 December 2011 is set aside.
Article 2: The commune of Villeneuve-lès-Béziers is condemned to pay to the commune of Béziers the sum of 591 103,78 euros. This amount will bear interest at the legal rate effective November 6, 2003. The interest accrued on December 22, 2004, then each annual maturity from that date, will be capitalized on each of these dates to produce their own interest.
Article 3: The commune of Villeneuve-lès-Béziers will pay to the municipality of Béziers the sum of 6 000 euros under Article L. 761-1 code administrative justice.
Article 4: The rest of the conclusions of the commune of Béziers and the conclusions presented by the municipality of Villeneuve-lès-Béziers under Article L. 761-1 code administrative justice are rejected.
Article 5: This decision will be notified to the municipality of Béziers and the municipality of Villeneuve-lès-Béziers.

39-04-02-01 1) An agreement concluded between two public entities relating to the organization of the public service or to the joint implementation of a project of general interest may not be subject to unilateral termination that if a reason of general interest justifies it, especially in case of disruption of the balance of the convention or disappearance of its cause. On the other hand, the mere appearance, during the execution of the agreement, of an imbalance in the relations between the parties is not such as to justify such a termination. ,,, (2) In this case, the The disputed agreement had been concluded by two municipalities with the aim of sharing the professional tax resources paid by the companies located in the industrial zone which they had created and managed jointly. It responded to a common public interest in both communities. In those circumstances, the mere fact that the agreement no longer satisfies the interests of one of the two communes could not be regarded as a ground of general interest capable of justifying unilateral termination. The municipality wishing to terminate does not invoke any other element likely to characterize a ground of general interest, assessed taking into account the various public interests affected by the agreement at issue, justifying the termination of this agreement.

39-08-03-02 1) The circumstances that the retranscription in the record of proceedings of the deliberation authorizing the municipal council of one of the two signatory municipalities to sign the agreement in question is incomplete, that the register has not been signed by all the councilors present without mentioning the cause that prevented the other councilors from signing it, that the register bears the signature of an absent municipal councilor and that the stamp relating to the posting of the extract of register does not bear the signature of the mayor can not characterize a vice of a particular gravity relative to the conditions under which this commune gave its consent. ,,, 2) The absence of transmission of the deliberation authorizing the mayor to sign a contract before the date on which the mayor proceeds to his signature, from which it results that this deliberation is not yet enforceable, constitutes a vice affecting the cond in which the parties gave their consent. However, having regard to the requirement of fair contractual relations, that one defect can not be regarded as so serious that the court must dismiss the contract and the dispute between the parties must not be settled on the ground. contractual.

[RJ1] Cf. EC, June 4, 2014, Municipality of Aubigny-les-Pothées, n ° 368895, to mention at the tables ,, [RJ2] Cf. CE, Assembly, December 28, 2009, Municipality of Béziers, No. 304802, p. 509; EC, 12 January 2011, Mr Manoukian, No. 338551, p. 5.