Tierce opposition : attention : le cocontractant du pouvoir adjudicateur n’est pas représenté par celui-ci

Third objection: warning: the contracting partner of the contracting authority is not represented by him

by gmorales the 28 April 2017 | Category: Public markets
Tierce opposition : attention : le cocontractant du pouvoir adjudicateur n’est pas représenté par celui-ci Tierce opposition : attention : le cocontractant du pouvoir adjudicateur n’est pas représenté par celui-ci

CE April 19, 2017, Company ACS Production, n ° 401359

A semi-public company, acting for and on behalf of a municipality under a mandate, had launched a tendering procedure for the award of a works contract. This contract was awarded to SMC2. The company ACS Production, a candidate for the award of the contract, asked the administrative court to cancel the contract. This motion having been rejected, ACS Production appealed the judgment, which was quashed by the Administrative Court of Appeal. The successful tenderer then lodged an appeal with the third party. In a second judgment, the Administrative Court of Appeal declared its first judgment null and void and dismissed ACS Production's request for the annulment of the Administrative Court's judgment. ACS Production has lodged an appeal in cassation before the Council of State against this second judgment. The opportunity for this one to bring an interesting precision on the third opposition.

Rule n ° 1: The contracting party of the contracting authority who has formed a third opposition is not represented by him

The applicant argued that the third-party opposition of the successful tenderer was not admissible on the ground that it was bound by a contract to the mixed enterprise company, which was itself present in the first instance before the Court. administrative appeal. However, under Article R. 832-1 of the Code of Administrative Justice, "any person may form third party opposition to a judicial decision that prejudices his rights, since neither she nor those she represents have been present or regularly called upon in the proceeding that led to that decision. ". The Administrative Court of Appeal rejects this plea by finding that the presence of the third party party in the previous instance of the contractor is not sufficient to regard it as having been represented by it. The Council of State validates this reasoning by affirming that "when a third party to a contract of the public order forms an appeal in contest of the validity of this contract, the public person can not be regarded as representing his cocontractant in this instance at meaning of Article R. 832-1 of the Code of Administrative Justice ". Consequently, the Conseil d'Etat considers that the Administrative Court of Appeal did not err in law and dismiss the appeal.

Rule 2: It is incumbent on the applicant who claims that the rapporteur's conclusions are out of time or incomplete

The applicant further claimed that the second judgment of the Administrative Court of Appeal had been handed down following an improper procedure on the ground that the meaning of the conclusions of the public rapporteur had been posted late and incompletely. It will be recalled that Article R. 711-3 of the Code of Administrative Justice states that "if the judgment of the case is to be made after the pronouncement of the public rapporteur's conclusions, the parties or their representatives shall be in a position to know, before the holding of the hearing, the meaning of these conclusions on the case which concerns them ". The Conseil d'Etat has already ruled that this procedural rule is intended to enable litigants "to assess the desirability of attending the hearing, to present oral arguments in support of their written arguments". and, where appropriate, to produce a note under advisement "(EC 18 December 2009, Sogedame Company, application No. 305568, EC Rec., see also in the same sense, CE 21 June 2013, Communauté d'agglomération du pays de Martigues, Application No. 352427, ECR). In the present case, the Conseil d'Etat rejects the applicant's argument, pointing out that this plea is not accompanied by details enabling it to be assessed. The applicant must therefore prove this lateness or incompleteness.


Board of state
No. 401539
7th - 2nd rooms together
Mr Marc Firoud, rapporteur
Mr Gilles Pellissier, public rapporteur
SCP DELVOLVE AND TRICHET; SCP MARLANGE, BURGADE, lawyers
Reading of Wednesday, April 19, 2017

FRENCH REPUBLIC
IN THE NAME OF THE FRENCH PEOPLE

Considering the following procedure:

The company ACS Production has asked the administrative court of Melun to cancel the contract to carry out the work of coverage of tennis court No. 3 Jules Ladoumègue stadium concluded between the joint stock company of mixed economy construction and development of Mitry -Mory (SEMMY), on behalf of the municipality of Mitry-Mory, and SMC2, and to condemn the municipality to compensate him for his loss. By judgment no. 1008501/2 of 3 October 2013, the Melun Administrative Court rejected his request.

By judgment no. 13PA04255 of 23 March 2015, the Paris Administrative Court of Appeal, on appeal by ACS Production, quashed that judgment in so far as it dismissed ACS Production's claims for damages. cancellation of the contract, as well as this contract.

By a second judgment no. 15PA02272 of 23 May 2016, the same court upheld the third-party opposition filed by SMC2 against the judgment no. 13PA04255 of 23 March 2015 and declared that judgment null and void. on the other hand, dismissed ACS Production's appeal against the judgment of 3 October 2013 of the Melun Administrative Court.

By a summary appeal and an additional memorandum, registered at the litigation secretariat of the Conseil d'Etat on 15 July and 17 October 2016, ACS Production asked the Conseil d'Etat to:

1 °) to cancel the judgment of 23 May 2016;

2 °) settling the case on the merits, to reject SMC2's application for third-party opposition against the judgment of 23 March 2015;

3 °) to charge the company SMC2 a sum of 3 500 euros under Article L. 761-1 code administrative justice.

Considering the other parts of the file;

Considering the code of administrative justice;

After hearing in open session:

- the report of Mr Marc Firoud, master of requests in extraordinary service,

- the conclusions of Mr Gilles Pellissier, public rapporteur.

The word was given, before and after the conclusions, to the SCP Delvolvé and Trichet, lawyer of the Company ACS Production, and to the SCP Marlange de Burgade, lawyer of the company SMC2.

1. Considering that it appears from the documents in the file submitted to the judges of the merits that a tender procedure for the award of a contract for the realization of the cover of the tennis court no. 3 of the Jules Ladoumègue stadium in Mitry-Mory was launched by Mitry-Mory (SEMMY), a joint-stock company of mixed economy construction and development, acting in the name and on behalf of the commune of Mitry-Mory; that at the end of this procedure, the contract was awarded to SMC2; that, by judgment of October 3, 2013, the administrative court of Melun refused to grant the request of the company ACS Production, candidate for the award of this market, tending to its cancellation; that, on the request of this company, the court of appeal of Paris annulled, in a judgment of March 23, 2015, this judgment as well as the market litigious; that after having been seized of a third-party appeal filed by SMC2, the Paris Administrative Court of Appeal declared, in a judgment of 23 May 2016, null and void the judgment of 23 March 2015 and dismissed the appeal of ACS Production; that the company ACS Production appeals in cassation against this judgment;

The lawfulness of the judgment under appeal:

2. Considering that the plea alleging that the judgment under appeal was delivered after an improper procedure, on the ground that the meaning of the conclusions of the public rapporteur was posted online late and incomplete, is not accompanied by details enabling the assessment of its merits; that, consequently, this means must be rejected;

On the merits of the judgment under appeal:

3. Considering that according to Article R. 832-1 of the Code of Administrative Justice: "Anyone may form third party opposition to a judicial decision that prejudices his rights, since neither she nor those whom she represents have been present or regularly called upon in the proceedings leading to this decision ";

4. Considering that, when a third party to a contract of the public order forms an appeal against the validity of this contract, the public person can not be regarded as representing his co-contractor in this instance within the meaning of Article R. 832-1 of the Administrative Justice Code;

5. Considering that it is apparent from the statements in the judgment under appeal that SMC2 was neither present nor regularly challenged in the proceedings which gave rise to the judgment of the Administrative Court of Appeal of Paris of March 23, 2015; that as it was said in the previous point, the court did not err in law by stating, in its judgment of 23 May 2016, that the fact that SEMMY, acting in the name and on behalf of the municipality of Mitry-Mory, was present in this instance did not allow to look at the company SM2C as having been represented within the meaning of Article R. 832-1 code administrative justice, and judging, by way of Consequently, the third-party opposition of this company was admissible;

6. Considering that it follows from the foregoing that the appeal company ACS Production must be dismissed, including its conclusions tending to the application of the provisions of Article L. 761-1 code administrative justice; that in the circumstances of the case, to pay the company ACS Production a sum of 3 000 euros to pay the company SMC2 pursuant to this article;

DECIDE:

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Article 1: The appeal of the company ACS Production is rejected.
Article 2: The company ACS Production will pay the company SMC2 a sum of 3 000 euros under Article L. 761-1 code administrative justice.
Article 3: This decision will be notified to ACS Production and SMC2.