The impossibility of the contracting party to request the nullity of his own contract!
In that case, the Conseil d'État recalls that the fairness of the contractual relations precludes a co-contracting party from availing itself of the irregularities that it may have committed to claim the nullity of its own contract and to release itself from its contractual obligations.
Teaching n ° 1: No one can invoke his own turpitude to question his contract
In its judgment of 28 December 2009, Beziers I ", The Council of State has already had the opportunity to recall in his famous decision" Beziers I " than " the irregularities on which the parties rely are those which, having regard to the requirement of fair contractual relations, may be invoked before it (CE Ass 28 December 2009, application No. 304802)
Therefore instructs the various cases rendered by the case-law to specify what the true invocation of an irregularity really means.
In its judgment of 4 October 2019, the Conseil d'Etat considers that a contracting party can not avail himself of the irregularities that he may have committed, however serious such, to obtain the cancellation or the non-application of his own contract. (v ° eg: CAA Bordeaux, December 16, 2010, Expert company Melloni and associates, req. No. 09BX02266).
In this case, the public purchaser was attempting to exonerate himself from his contractual obligations by asserting the illegality of the contract concluded on the basis of an endorsement annulled by the administrative court.
Faced with this situation, the judge of the contract since the case law Beziers I "Opposes the fact that the author of the irregularity or who has consented to it for a certain time can use it in litigation to obtain the cancellation or the inapplication of his own contract.
The judgment of 4 October 2019 also specifies the question of shared wrongs. In fact, whether the irregularity is attributable solely to the applicant-contracting party or, on the contrary, that it is attributable to both parties clearly does not affect the disloyalty of the plea relied on (see for example: EC May 4, 2015, Société Bueil street furniture advertising, req. No. 371 455).
Teaching n ° 2: The fate of the contract extended on the basis of an amendment previously annulled by the judge
The Council of State recalls that the extension of a contract on the basis of an amendment previously annulled by the judge is illegal.
For the Council of State, the illegality of the amendment " in the circumstances of the case, are irrelevant to the parties "In particular because it has not been demonstrated that the total absence of advertising and competition was ultimately a maneuver the object and effect of favoring the holder (sic).
This decision of October 4, 2019 confirms the jurisdictional tolerance which can be considered as totally exaggerated in the face of the breaches of the fundamental principles of the public order.
Indeed, under the guise of fair contractual relations, a contract concluded in clear violation of the principles of equal treatment, transparency of procedures in particular is not surprisingly enough to cancel or dismiss the contract to settle the dispute.
Finally, the Council of State adopts a jurisprudence that is gradually outlawed, the principle of legality is now relegated to oblivion ....
Considering the following procedure:
The Joint Union for Sustainable Development of East Var for the treatment and recovery of household waste (SMIDDEV) asked the Toulon Administrative Court to pronounce the resolution of the amendment of 29 December 2009 of the public service delegation agreement concluded with the modern sanitation and cleaning company (SMA), and to condemn it, principal, to pay him the sum of 10 784 777 euros TTC for sums improperly collected, in addition to interest at the legal rate , and in the alternative, to pay him the sum of EUR 2 976 820.90 inclusive of all sums paid in connection with the execution of the addendum. By a judgment n ° 1302364 of June 10th, 2016, the Toulon administrative court, after taking note of the withdrawal of the company Valéor, coming to the rights of the company SMA, of its subsidiary conclusions for the purpose of appointing an expert, has rejected the request of SMIDDEV.
By a judgment No. 16MA03330 of 29 January 2018, the Administrative Court of Appeal of Marseille rejected the appeal filed by SMIDDEV against this judgment.
By a summary appeal and a supplementary memorandum, registered on 27 March and 25 June 2018 at the litigation secretariat of the Conseil d'Etat, SMIDDEV asks the Conseil d'Etat to:
1 °) to annul this judgment;
2 °) settling the case on the merits, to grant his appeal;
3 °) to put at the charge of the company Valéor the sum of 7 500 euros under Article L. 761-1 code administrative justice.
Considering the following:
- It appears from the documents submitted to the judges of the merits that the operation of the site n ° 3 of the center of burying of non-dangerous waste, known as "des Lauriers", located on the territory of the commune of Bagnols-en-Forêt, has been entrusted by the Syndicat intercommunal pour le traitement de ménages (SITOM) of the area of Fréjus-Saint-Raphaël, now the Joint Union for Sustainable Development of East-Var for the treatment and recovery of household waste ( SMIDDEV), to the Modern Sanitation and Cleaning Company (SMA), whose rights are now the company Valéor, by a public service delegation agreement. Concluded on December 31, 2002 for an initial duration of 6 years, it was extended, by way of amendments, until 2009 to allow the continuation of the exploitation on the same site, pending the opening of the site n ° 4, also located on the territory of the municipality of Bagnols-en-Forêt. A two-year extension, for the period from 1 January 2010 to 31 December 2011, was finally authorized by the December 17, 2009 deliberation of SITOM, which led to the signing of Amendment No. 4 of the December 29, 2009. By a judgment of May 6, 2011, become final, the administrative court of Toulon has, at the request of the municipality of Bagnols-en-Forêt, canceled this deliberation. Following the failure of an amicable settlement procedure intended to draw between the parties the consequences of the annulment thus pronounced, SMIDDEV applied to the Toulon Administrative Court for an application tending, in the last state of his writings, that he pronounces the resolution of the amendment n ° 4 of December 29, 2009 and condemns the company SMA to pay him various sums. By judgment of June 10, 2016, the court dismissed these findings. In a judgment of 29 January 2018, against which the SMIDDEV appeals in cassation, the Administrative Court of Appeal of Marseilles rejected the appeal formed by this union against this judgment.
- The parties to an administrative contract may submit to the judge an appeal in full dispute challenging the validity of the contract that binds them. It is then up to the judge, when he finds the existence of irregularities, to assess their importance and consequences, after verifying that the irregularities which the parties claim are of the type that they can, having regard to the requirement of loyalty of the contractual relations, to invoke before him. It is incumbent upon it, having taken into consideration the nature of the illegality committed and taking into account the objective of stability of the contractual relations, either to decide that the continuation of the execution of the contract is possible, possibly subject to measures the public body or agreed between the parties, or to pronounce, if necessary with a deferred effect, after verifying that its decision will not involve an excessive breach of the general interest, the termination of the contract or, in only because of an irregularity invoked by a party or relieved of its own motion by the unlawful nature of the content of the contract or a defect of a particularly serious nature, in particular as regards the conditions in which the parties gave their consent, its annulment .
- First, it is apparent from the statements in paragraph 7 of the judgment under appeal that the Marseilles Administrative Court of Appeal first noted that the cancellation of the SITOM's decision of 17 December 2009 authorizing the signing of the endorsement No. 4 in dispute, pronounced by the administrative court of Toulon in its judgment of May 6, 2011, had led "to the absence of any consent of the deliberating assembly of SMIDDEV prior to the conclusion of the rider in dispute, in ignorance of the provisions of the fifth paragraph of Article L. 1411-2 of the general code of local authorities ". It then noted that, in view of the terms of execution of the addendum by the municipality, the deliberative assembly of the union was to be considered "as having given its consent to the execution of the addendum to the dispute after its conclusion. ". It inferred from the evidence thus retained that the principle of contractual loyalty was, in this case, an obstacle to the SMIDDEV being able to rely on a defect of consent. Contrary to what is alleged by the SMIDDEV, it does not follow from these statements that the court would have held that the vice resulting from the violation of the provisions of Article L. 1411-2 of the General Code of Local Authorities was solely attributable to it nor that it would have dismissed as a matter of principle the plea alleging the defect of consent merely because it took part in the occurrence of the irregularity. As a result, the court did not commit the error of law with which it is accused or distort the documents in the file or taint its judgment of a contradiction of reasons.
- Secondly, it is apparent from the statements in paragraph 11 of the judgment under appeal that the Court noted that, in the light of the provisions of Article L. 1411-1 of the General Code of Territorial Communities, in its wording applicable on the date signature of the amendment in dispute, the extension of the public service delegation agreement entered into by the parties could not, in the circumstances of the case, be in the form of an addendum but should have given rise to the signing of a new agreement following an advertising and competitive process. It then dismissed the plea alleging breach of the rules of the general code of local authorities, after having taken into account the requirements of the loyalty of the contractual relations, on the ground that the SMIDDEV had been the only one "at the origin" of the alleged vice and that it had "remained, in the circumstances of the case, without impact on the parties". On the one hand, it does not appear from the documents in the file submitted to the judges of the merits that the court distorted the facts of the case by holding that the SMIDDEV, which took the initiative to maintain by amendment the operation of the center landfill for the general interest in order to ensure the continuity of the public service, was at the origin of the defect related to the conditions of the endorsement. Secondly, it is also not apparent from those documents that the Court distorted the facts of the case in the view that the defect of the award had no effect since it has not been established that the use of an amendment was intended to favor the SMA over other competitors or the financial terms provided for in the amendment would have had the effect of eliminating any risk of exploitation for the benefit of the concessionaire, thus giving the illicit. Thus, the court did not taint its error of law judgment on the basis of the requirement of fair contractual relations to rule out the plea of breach of contract and that of the existence of unlawful stipulations.
- Third, according to the statements in paragraph 12, the judgment is based on the amendments made as a result of the issue of the prefectural authorization on 7 April 2010, only a few months after the deliberation authorizing the signing of the amendment. , making it possible under the Landfill Law for the continued operation of the "Lauriers" site, to infer that "the addendum to the dispute had been immediately purged of all the defects identified in point 3 "and reject the request for resolution of the addendum for the period after 7 April 2010. On the one hand, it is apparent from the statements in that judgment that the reference to" point 3 " of a simple error of pen, the court to be regarded as having heard refer to point 9 of its judgment. On the other hand, taking into account the objective of stability of the contractual relations and taking into consideration the regularization measures resulting from the above-mentioned prefectoral authorization, the court did not commit any error of law or error in the legal qualification of the facts, and it did not distort the material in the file or the facts.
- Lastly, it is apparent from the statements in paragraph 13 of the judgment that the court relied on the general interest ground which is attached to the continuity of the public waste treatment service to refuse to pronounce the resolution of the amendment for the only period from 1 January to 6 April 2010, that is to say the one preceding the intervention of the prefectural decree mentioned in the previous point. In so doing, the court, having made a sovereign assessment of the facts without denaturing, did not vitiate its judgment, which is sufficiently reasoned, of an error in the legal characterization of the facts.
- It follows from all the foregoing that the SMIDDEV is not justified in seeking the annulment of the judgment it is attacking.
- The provisions of Article L. 761-1 of the Code of Administrative Justice preclude the payment of compensation to Valéor, which is not, in the present case, the losing party . It is appropriate, in the circumstances of the case, to charge SMIDDEV a sum of 3,000 euros to be paid to Valéor on the same basis.
Article 1: The appeal of SMIDDEV is rejected.
Article 2: The SMIDDEV will pay the sum of 3 000 euros to the company Valéor on the basis of article L. 761-1 code administrative justice.
Article 3: This decision will be notified to the Joint Union for Sustainable Development of East-Var and the company Valéor.