The threshold of 25.000 € HT validated by the Council of State
Decree No. 2016-360 of 25 March 2016 on public procurement was the subject of two actions in excess of power. On this occasion, the Council of State decides on several issues.
Rule n ° 1: The simplified regime of the legal services in connection with a litigation did not disregard the principles of the public order
The first claim for annulment concerned Article 29 of the Decree, providing for a lighter regime for judicial representation services or for legal consultation with a view to the preparation of a procedure. The appellant argued that this provision is contrary to the principles of public procurement. But the Conseil d'Etat points out that these services are not excluded from the scope of the order of 23 July 2015 and that its provisions on the general principles of public procurement are therefore applicable to them. It also notes that the award of these legal services contracts is subject to an obligation to advertise and put in competition. Consequently, the Council of State rejects the request for annulment of these provisions.
Rule n ° 2: The threshold of 25.000 € is not contrary to the principles of the public order
The applicant also challenged the provisions of Article 30 (8) (8) authorizing the award of contracts below € 25,000 without advertising or competitive bidding. The Conseil d'Etat considers that the use of advertising and competitive bidding procedures for these markets is not essential to ensure the efficiency of public procurement and the proper use of public funds and that such procedures could deter some operators to apply. It also considers that the provisions according to which the buyer takes care to choose a relevant offer, to make a good use of the public money and not to contract systematically with the same operator offer a sufficient guarantee. Consequently, the Council of State rejects the cancellation request.
Rule No. 3: Statutory Power to Imply Inconsistency to Enact a New Limitation Regime
The second applicant challenged Article 142 of the Decree, which provides that in the event of a dispute over the execution of public contracts, the parties may have recourse to the company mediator, the requirements and time limits for appeal being then interrupted. The Conseil d'Etat considers that these provisions establish a statute of limitation for the action for the payment of a debt and that only the legislator has this power, pursuant to Article 34 of the Constitution, which reserves to him the determination of fundamental principles of civil obligations. As a result, he cancels 4e Article 142. On the other hand, it rejects the Paris Bar Association's argument that the impugned provisions create a monopoly within the legislature's jurisdiction.
Rule 4: Article 142 of the Decree does not establish an exclusive right
The second applicant also claimed that Article 142 establishes an exclusive right within the meaning of Article L.462-2 of the Commercial Code which requires, in this case, the consultation of the Competition Authority. The Conseil d'Etat points out, however, that the parties are free, before appealing to the judge, to apply to a mediator and thus interrupt the appeal period. It also observes that this interruptive effect already applied to the referral to the Advisory Committee for the Amicable Settlement of Disputes and states that the impugned provisions do not have the purpose or effect of establishing a new exclusive right within the meaning of the provisions of the Code of trade. The plea is rejected.
Rule n ° 5: The creation of a mediation body did not disregard the principle of freedom of trade and industry nor the law of competition
Finally, it was argued that Article 142 would violate the principle of freedom of trade and industry as well as competition law. The Conseil d'Etat rejects the plea by holding that the creation of a mediator offering a free amicable dispute resolution process is part of the general interest mission of the State relating to the development of alternative methods of dispute resolution and that these provisions do not establish a monopoly. Consequently, it considers that the powers of the ombudsman do not involve intervention on a market and do not disregard the principle of freedom of trade and industry or competition law.
Board of state
N ° 403768
7th - 2nd rooms together
Play of Friday, March 17th, 2017
ATNAME OF THE FRENCH PEOPLE
Considering the following procedures:
1 ° Under the n ° 403768, by a request, registered on September 26, 2016 with the secretariat of the litigation of the Council of State, MB..A ... asks the Council of State:
1 °) to cancel for excess of power the decree n ° 2016-360 of March 25, 2016 relating to the public markets, as well as the implicit decision of the Prime Minister of rejection of its request for withdrawal of the decree;
2 °) to charge the State the sum of 3 000 euros under Article L. 761-1 code administrative justice.
2 ° Under the n ° 403817, by a request and a memory in answer, registered on September 27th, 2016 and March 2nd, 2017 with the secretariat of the litigation of the Council of State, the Order of the lawyers of Paris asks the Council of State:
1 °) to annul for excess of power Article 142 of the same decree;
2 °) to order the Prime Minister to amend the contested provisions within four months, subject to a penalty of 500 euros per day of delay;
3 °) to charge the State the sum of 3,000 euros under Article L. 761-1 code administrative justice.
Considering the other parts of the files;
- the Constitution, in particular Article 34;
- the civil code;
- the commercial code;
- Ordinance No. 2015-899 of 23 July 2015;
- Decree No. 2010-1525 of 8 December 2010;
- Decree No. 2015-1163 of 17 September 2015;
- the code of administrative justice;
After hearing in open session:
- the report of Mr Thomas Odinot, auditor,
- the conclusions of Olivier Henrard, public rapporteur.
The word having been given, before and after the conclusions, to SCP Coutard, Munier-Apaire, lawyer of the Paris Bar Association.
Considering the note under deliberation, recorded on March 7th, 2017 presented by the Paris Bar Association.
- Considering that the motions of MA..and of the Paris Bar Association are directed against the same decree; whereas it is necessary to join them in order to give a decision;
- Considering that MA..is to be regarded as requesting the cancellation for excess of power of the only provisions of article 29 and 8 ° of I of article 30 of the decree of March 25, 2016 relating to the public markets; that the Paris Bar Association challenges the provisions of Article 142 of the same decree insofar as they relate to the business mediator;
On the claims directed against Articles 29 and 30 of the Decree:
- Considering, in the first place, that Article 29 of the Decree provides that its provisions, with the exception of Articles 2, 4, 5, 12, 20 to 23, 30, 48 to 55, 60, 107, 108 and the title IV of the first part, do not apply to public procurement of "legal services of legal representation of a client by a lawyer in the context of judicial proceedings, before public authorities or international institutions or within the framework of 'alternative dispute resolution', and contracts for 'legal advice provided by a lawyer with a view to the preparation of any procedure referred to in the preceding paragraph or where there are tangible signs and high probability that the issue to which the consultation relates will be the subject of such a procedure "; that, however, these two categories of legal services are not among those which are excluded from the scope of the order of 23 July 2015 relating to public procurement by 10 ° of Article 14; that they are therefore applicable the provisions of Article 1 of the Ordinance, according to which: "I. - The public contracts subject to the present order respect the principles of freedom of access to the public order, equality of treatment of candidates and transparency of procedures "; Article 29 of the contested decree specifies that the award of contracts for legal services falling into one of these two categories is subject to an obligation to advertise and put in competition, and that, if to the buyer to freely define the terms, these must be determined according to the amount and characteristics of the market; that, consequently, MA ... is not founded to maintain that article 29 exonerate the markets in question from the respect of the general rules recalled in article 1 of the order of July 23, 2015;
- Considering, secondly, that pursuant to the provisions of Article 30 (I) of Article 30 of the contested decree, public contracts meeting a requirement whose estimated value is less than EUR 25 000 excluding VAT may be negotiated without advertising or prior call for competition; that, on the one hand, this faculty open to purchasers is justified by the need to avoid the imposition on them of procedures, the implementation of which is not indispensable, for small contracts; to ensure the efficiency of public procurement and the proper use of the latest publics, which could even, in certain cases, dissuade economic operators from applying; whereas the definition of a threshold relating to the estimated value of the requirement constitutes an objective criterion which will increase the legal certainty of the procurement for the buyer and the candidate; that, on the other hand, by stating that, for the public contracts passed without publicity nor putting in competition in application of the 8 ° of I of the article 30, the purchaser takes care to choose a relevant offer, to make a good use public money and not to contract systematically with the same economic operator when there is a plurality of offers likely to meet the need, the contested provisions provide guarantees governing the use of this possibility; that, therefore, without it being necessary to rule on the admissibility of the conclusions of the request, the plea alleging that the provisions attacked would have disregarded the principles of freedom of access to the public order, equality of treatment candidates and transparency of procedures must be rejected;
On the claims directed against Article 142 of the Decree:
- Whereas under Article 142 of the contested decree: "In the event of a dispute concerning the execution of public contracts, purchasers and holders may appeal to the enterprise mediator or the advisory committees for the amicable settlement of disputes or disputes relating to public procurement under conditions laid down by decree (...). / The business ombudsman acts as a third party, without decision-making power, to help the parties, who have expressed their willingness, to find a mutually acceptable solution to their dispute./ The referral to the company mediator or an amicable settlement advisory committee interrupts the course of the various prescriptions and the contentious appeal periods until the notification of the closing statement of the mediation or the notification of the decision taken. by the buyer on the opinion of the committee (...) ";
- Considering that the Paris Bar Association argues that these provisions are unlawful in so far as they concern the ombudsman, on the ground that they establish for his own benefit a new legal regime, which excludes other persons carrying out an activity mediation;
Regarding the Prime Minister's competence to issue rules on the interruption of limitation periods:
- Considering that the provisions of Article 142 establish a statute of limitation for the action for the payment of a debt for enterprises which seize the business mediator or an amicable settlement advisory committee; whereas, however, it follows from Article 34 of the Constitution that it is for the legislator alone to determine the basic principles of civil obligations, which include the fixing of a limitation period for the action for payment; a claim; that, consequently, and without it being necessary to examine on this point the means of the request, Article 142 of the decree of March 25, 2016 is tainted of illegality as it provides that the seizin of the mediator companies or an amicable settlement advisory committee interrupts the course of the different requirements; whereas, however, having regard to the scope of the form of order sought in the application, it is necessary to annul those provisions only in so far as they relate to the referral to the ombudsman;
As regards the means of the request:
- Considering, in the first place, that under the terms of Article L. 462-2 of the Commercial Code: "The Authority is compulsorily consulted by the Government on any draft regulatory text instituting a new regime having the direct effect: ...) 2 ° to establish exclusive rights in certain areas "; that the Paris Bar Association argues that the rule according to which the seizin of the mediator of companies interrupts the course of the contentious deadlines constitutes an exclusive right within the meaning of these provisions; that, however, it is open to the parties to a public contract to provide for the intervention, before the referral to the judge, in the event of a dispute, of a body entrusted with a conciliation and mediation mission and that they may thus, if they wish, to give an interruptive effect of the time limits of recourse to the referral of the mediator of their choice; that, moreover, such an effect was already attached ipso jure, prior to the intervention of the contested decree, to the referral of an advisory committee for the amicable settlement of disputes, an organism also placed before the Minister in charge of the economy, the the provisions in question merely extending that rule to the ombudsman of undertakings; they can not be regarded as having the purpose or the effect of instituting a "new system" establishing an exclusive right within the meaning of the aforementioned provisions of the Commercial Code; that they did not, consequently, have to be submitted to the opinion of the Competition Authority;
- Considering, secondly, that the contested provisions, contrary to the contention of the Paris Bar Association, do not in any way constitute a monopoly for the benefit of the company mediator, the contracting parties to a public contract remaining free to resort to the mediator of their choice; Thus the plea that only the legislature would have been competent to provide for the intervention of the business ombudsman can only be dismissed.
- Considering, thirdly, that public persons are responsible for carrying out the activities necessary for carrying out the public service missions for which they are invested and for this purpose enjoy the prerogatives of public authority; whereas, moreover, if they intend, independently of these missions, to take charge of an economic activity, they can legally do so only with due respect for both the freedom of trade and industry and the law of competition; In this respect, in order to intervene in a market, they must not only act within the limits of their powers but also justify a public interest, which may result in particular from the lack of private initiative. that, once accepted in principle, such an intervention must not take place in such a way that, because of the particular situation in which that public person would be in relation to other operators operating on the same market, it would distort the free game of competition on this one;
- Considering that the business mediator, a service of the Ministry of the Economy and Finance, is intended to offer free to all buyers and businesses, regardless of their resources, and therefore especially to those with limited means, an organized process to reach, with his help, the amicable resolution of their disputes; that by giving purchasers and enterprises the possibility of resorting to the service of the ombudsman, Article 142 of the contested decree has confined itself to implementing the mission of general interest, which is the responsibility of the State, to to develop alternative methods of dispute resolution, a corollary of a good administration of justice; whereas, moreover, as stated in paragraph 9, the provisions in question in no way constitute a monopoly for the benefit of the ombudsman; that thus, none of the attributions entrusted to the mediator of the companies does not involve intervention on a market; Consequently, the provisions of Article 142 of the contested decree had neither the object nor the effect of disregarding the principle of freedom of trade and industry and the law of competition.
- Considering that it follows from all the foregoing that the decree of 25 March 2016 should be annulled only insofar as it provides that the referral to the company mediator interrupts the course of the various prescriptions; that, consequently, the conclusions of the request of MA..and the rest of the conclusions of the request of the order of the lawyers of Paris, including its conclusions for the purpose of injunction, must be rejected;
The conclusions submitted under the provisions of Article L. 761-1 of the Administrative Justice Code:
- Whereas the provisions of Article L. 761-1 of the Code of Administrative Justice preclude that the sum requested in this respect by MA..is put at the charge of the State which is not the losing party in the dispute which opposes it to this applicant ; that it is not necessary, in the circumstances of the case, to put at the expense of the State sums that the Paris Bar Association ask for the same title;
Article 1: The fourth paragraph of article 142 of the decree of 25 March 2016 relating to public contracts is canceled in so far as it provides that the referral to the company mediator interrupts the price of the various prescriptions.
Article 2: The request of MA..and the surplus of the request of the Paris Bar Association are rejected.