Un marché public d’assurance incluant une clause de protection juridique : assurance responsabilité civile ou assurance protection juridique ?

A public insurance contract including a legal protection clause: liability insurance or legal protection insurance?

by Sébastien Palmier on February 1, 2019 | Category: Pre-contractual & Contractual referral
Un marché public d’assurance incluant une clause de protection juridique : assurance responsabilité civile ou assurance protection juridique ?  Un marché public d’assurance incluant une clause de protection juridique : assurance responsabilité civile ou assurance protection juridique ?

CE 25 January 2019, BEAH, No. 423159

The Conseil d'Etat considers that, pursuant to Article L127-6 of the French Insurance Code, the clause inserted in a public contract of civil liability insurance whereby the insurer undertakes to take charge of the defense or representation of his insured person in any judicial or administrative proceedings, where such care is exercised at the same time in his own interest, does not constitute a legal protection insurance clause.

Thus, a clause providing for the intervention of the insurer only in the event of an action involving a liability guaranteed by the contract does not constitute a guarantee of legal protection that would be imposed on the insurer whatever the circumstances of the disaster. In this case, the contract can not be reclassified as a legal protection insurance contract under the insurance code.

In the present case, the clauses of the public contract of civil liability insurance contained a clause qualified as legal protection of the agents So that the judge of the contractual recourse had considered that the contract of insurance civil liability had to be requalified in contract of insurance legal protection with obligation for the insurance intermediary carrying the file of candidature to justify the specific mandate of the company member of the group responsible for guaranteeing the risks relating to legal protection.

The Council of State will cancel this order on the basis of Article L127-6 of the Insurance Code and take the opportunity to recall the criterion that qualifies a guarantee of legal protection within the meaning of L.127-1. and following of the insurance code.

According to Article L.127-1 of the Insurance Code: " is a legal protection insurance operation any operation consisting of, on payment of a premium or a previously agreed contribution, to pay costs of proceedings or to provide services arising from the insurance cover, in the event of a dispute or litigation between the insured and a third party, in particular to defend or represent the insured person in an civil, criminal, administrative or other proceedings or against a claim of which it is the object or to obtain amicable repair of the damage suffered ". Article L.127-2 adds: " legal protection insurance a contract separate from the one established for the other branches or a separate chapter of a single font with indication of the content of the legal protection insurance and the corresponding premium ". Finally, Article L. 127-6 of the Insurance Code, placed in the chapter entitled "Legal Protection Insurance" indicates that: "The provisions of this chapter do not apply: (...) / 2 ° A the activity of the civil liability insurer for the defense or representation of its insured in any judicial or administrative proceedings, where it is exercised at the same time in the interest of the insurer ".

 In his conclusions on this case, the Public Rapporteur considers that when it is not the subject of an autonomous contract but is inserted, as a complementary guarantee, in a contract whose main purpose is to guarantee the liability of the insured, "legal protection" should not be confused with the so-called direction of the trial ", who does not dedicate an independent and autonomous guarantee, but is only an extension of the guarantees offered by the insurer under its civil liability guarantee, in order to enable the insurer, on whom, in performance of the contract, will bear the ultimate burden of the debt, to be able to insure the direction of the trial, in place of the insured or at his side, to ensure the best defense of his interests.

In other words, when a public insurance contract, the main purpose of which is to guarantee the insured's civil liability, contains a defense-recourse clause in which the insurer undertakes to defend the insured or to exercising the necessary remedies for the protection of its rights, it can not be considered that it provides an independent and independent guarantee that if and only it provides for the intervention of the insurer regardless of the risks or events insured by the contract under the civil liability of the insured.

  • The criterion of the interest of the insurer is essential to qualify the contract and must be assessed according to the scope of the legal assistance guarantee: the insurer has a personal interest at the end of a court action to which the insured party belongs when this action is likely to lead to a liability which he is obliged to guarantee. In this case, he must be able to reserve for himself the opportunity to defend himself in the interests of his insured, in whose rights and obligations he may be subrogated. The defense and representation clauses are then considered to be trial management clauses, which are ancillary to the civil liability guarantee that may oblige it to take charge of the conviction of its insured. The contract in question is assimilated to a civil liability insurance contract within the meaning of the insurance law.

  • On the other hand, if the legal aid guarantee relates to obligations that it does not insure, it has no personal interest at the end of the litigation. He must only assume from the insurer the expenses incurred by his insured for the defense of his sole interests. In this case, it is a public contract of legal protection insurance within the meaning of insurance law.

 

CE 25 January 2019, BEAH, No. 423159

 

Considering the following:

  1. According to Article L. 551-1 of the Code of Administrative Justice: "The president of the administrative court, or the magistrate he delegates, may be seized in the event of failure to comply with the publicity and competitive bidding requirements. subject to the award by the contracting authorities of administrative contracts for the performance of works, the supply of supplies or the provision of services, with an economic counterpart consisting of a price or a right of exploitation (...) / judge is seized before the conclusion of the contract ". According to Article L. 551-4 of the same code: "The contract can not be signed from the referral to the administrative court and until the notification to the contracting authority of the jurisdictional decision". According to Article L. 551-13 of the same code: "The president of the administrative court, or the magistrate he delegates, may be seized, once concluded one of the contracts mentioned in Articles L. 551-1 and L. 551-5, a remedy governed by this section ". According to Article L. 551-14 of the same Code: "The persons entitled to act are those who have an interest in concluding the contract and who are likely to be harmed by breaches of the obligations of publicity and implementation. competition to which these contracts are subject, as well as the representative of the State in the case of contracts awarded by a local authority or a local public institution./ However, the recourse governed by this section is not open to the plaintiff who has use of the recourse provided for in Article L. 551-1 or in Article L. 551-5, where the contracting authority or the contracting entity has complied with the suspension provided for in Article L. 551-4 or Article L. 551-9 and complied with the jurisdictional decision rendered on this appeal ". According to Article L. 551-18 of the same code: "The judge declares the contract null and void when none of the publicity measures required for the procurement have been taken, or when a publication in the Official Journal has been omitted. of the European Union in the event of such publication being required./ The same annulment is pronounced when the procedures for reopening the competition for the award of contracts based on a framework agreement or a dynamic purchasing system have been infringed. The judge also declares the contract null and void when it has been signed before the expiry of the deadline after the award decision has been sent to the economic operators who submitted an application or offer or during the suspension provided for in Article L. 551-4 or Article L. 551-9 if, in addition, two conditions are met: the breach of these obligations deprived the applicant of his right to exercise the remedy provided for by Articles L. 551-1 and L. 551-5, and the publicity and competitive bidding requirements to which its procurement is subject, were misunderstood in a way that affected the chances of the plaintiff to obtain the contract. ". Finally, according to Article L. 551-20 of the same Code: "In the case where the contract was signed before the expiry of the period required after the award decision was sent to the economic operators having submitted a candidacy or an offer or during the suspension provided for in Article L. 551-4 or Article L. 551-9, the judge may declare the contract invalid, terminate it, reduce its duration or impose a financial penalty. ".

 

  1. The documents in the file submitted to the judge of the Toulon Administrative Court show that the inter-communal hospital center of Fréjus Saint-Raphaël launched in October 2017, on behalf of the group of orders he set up with the hospital center of Saint-Raphaël. Tropez, of which he is the coordinator, an open tendering procedure for the award of a public contract for the provision of insurance services relating to the hospital's civil liability and related risks, the purpose of which is to cover the consequences pecuniary of the questioning of the civil responsibility of these two establishments by thirds. By an e-mail of 12 December 2017, the mutual insurance company was informed of the rejection of its tender and of the award of the contract to the group consisting of the European Hospital Insurance Office and the companies Amtrust International Underwriters and Areas insurance. The mutual insurance company first asked the judge of the pre-contractual injunction, on the basis of Article L. 551-1 of the Code of Administrative Justice, first, to annul the decision by which the center Inter-communal hospital of Fréjus Saint-Raphaël had rejected his offer and the decision to award the contract to the consortium formed by the European Hospital Insurance Bureau and the companies Amtrust International Underwriters and Areas Insurance and secondly to order him resume the procedure at the stage of the examination of tenders and to inform him of the reasons for the rejection of his tender and the characteristics and advantages of the tender selected as well as a set of documents relating to the contract, including the analysis report of the tenders. offers. Informed of the signing of the contract by the inter-communal hospital center of Fréjus Saint-Raphaël with the awarded group, it then asked the judge for interim relief the cancellation of this contract on the basis of the provisions of Articles L. 551-13 and L. 551-18 of the administrative justice code relating to the contractual referent. By an order of 15 January 2018, the judge of the Toulon Administrative Court dismissed the decision of the mutual insurance company (SHAM) concerning the pre-contractual injunction and dismissed his pleadings submitted under the contractual referee. By decision no. 417734 of 25 June 2018, the Conseil d'Etat, ruling on the dispute, annulled this order in so far as it rules on the conclusions of the contractual summary and remitted the case, to that extent, to the administrative court of Toulon.

 

  1. By an order of July 27, 2018, the judge of the Toulon administrative court dismissed the conclusions of the request of the mutual insurance company mutual insurance presented on the basis of Article L. 551-18 code administrative justice , but ordered, on the basis of Article L. 551-20 of the same Code, the termination, as from 1 March 2019, of the disputed contract, which was originally scheduled to expire on 31 December 2020. By the appeal he was formed on 13 August 2018 before the Council of State, the European Hospital Insurance Office must be regarded as seeking the annulment of this order insofar as it orders, on the basis of Article R. 551- 20 of the Administrative Justice Code, the termination of the contract as of March 1, 2019.
  2. To order the termination of the contract, the judge of the Toulon Administrative Court pointed out that the hospital center had disregarded the prohibition to sign it from the referral to the pre-contractual judge and until the notification of the decision of this one, provided for by article 551-4 of the code of administrative justice. It further considered that the contract included a clause of legal protection insurance within the meaning of Article L. 127-1 of the Insurance Code and that the European Hospital Insurance Bureau did not have a mandate to Areas Insurance, the only member of the awarding group authorized to guarantee the risks of legal protection, the hospital center concluded the contract with a candidate whose offer was irregular. The applicant submits that it is at the price of a breach of Article L. 121-7 of the Insurance Code that the judge hearing the application for interim relief has identified a legal protection insurance clause.

 

  1. The documents in the file submitted to the judge hearing the application for interim measures show that Article 2.2.19 of the special technical clauses entitled "Legal protection of staff" stipulates that "the insurer shall cover the effects of Law No 83-634 of 13 July 1983 on the rights and obligations of public servants, in particular Article 11 (...), the obligation of the institution to guarantee the costs of criminal defense and recourse of any official implicated in the framework of his mission within the establishment ", under the" criminal defense "guarantee," the insurer undertakes to defend the insured, the director of the institution and the persons who have been delegated power in the exercise of their duties, as well as the agents placed under the authority of the insured during their service, when they are personally prosecuted before a criminal court for damages guaranteed under the "Civil Liability Insurance" contract, and that at t of the "remedy" guarantee, "the insurer undertakes to claim compensation from a third party liable for the consequential material and consequential damages suffered by the insured, which relate to one of the risks included in basic coverage or expressly covered under one of the optional warranty extensions ".

 

  1. According to Article L. 127-1 of the French Insurance Code: "Is a legal protection insurance operation any operation consisting, on payment of a premium or a previously agreed contribution, of taking over costs of proceedings or to provide services arising from the insurance cover, in the event of a dispute or dispute between the insured and a third party, in particular for the purpose of defending or representing the insured in demand in civil, criminal proceedings, administrative or other proceedings or against a claim of which he is the object or to obtain amicable repair of the damage suffered ". According to Article L. 127-6 of this Code, placed in the chapter entitled "Legal Protection Insurance": "The provisions of this chapter do not apply: (...) / 2 ° A the activity of the civil liability insurer for the defense or representation of its insured in any judicial or administrative proceedings, when it is exercised at the same time in the interest of the insurer ". Under the second paragraph of Article L. 113-1 of the same code: "the insurer does not answer for losses and damages resulting from an intentional or fraudulent fault of the insured". According to Article L. 121-2 of the same Code: "The insurer is liable for loss and damage caused by persons for whom the insured is civilly liable under Article 1242 of the Civil Code, regardless of the nature and gravity of the faults of these people ".

 

  1. Moreover, under Article 11 of the Act of 13 July 1983 on the rights and obligations of public servants: "I. - Because of his duties and independently of the rules set by the Criminal Code and by special laws, the official or, where applicable, the former public servant enjoys, under the conditions provided for in this article, protection organized by the public authority that employs him at the date of the events in question or facts that have been imputed in a defamatory manner. II - When the official has been sued by a third party for want of service and the conflict of attribution has not been raised, the public authority must, insofar as a personal fault detachable from the exercise of its duties is not attributable to the official, to cover him against civil convictions pronounced against him./ III - When the official is the subject of criminal prosecution for facts which do not have the character of a personal fault detachable from the exercise of its functions, the public authority must grant him protection. An official heard as an assisted witness for such acts shall enjoy this protection. The public authority is also obliged to protect the official who, because of such facts, is placed in police custody or is offered a measure of penal composition. / IV. - The public authority is obliged to protect the official against willful attacks on the person's integrity, violence, harassment, threats, insults, defamation or outrages of which he or she may be the victim. a personal fault can be attributed to him. It is bound to make reparation, if necessary, for the damage resulting therefrom (...) ";

 

  1. It follows from the provisions of Article L. 127-6 of the Insurance Code, cited in point 6, that the clause under which the insurer undertakes to take charge of the defense or the representation of its insured person in any judicial or administrative proceedings, where this assumption of responsibility is exercised at the same time in his own interest. Thus, a clause providing for the intervention of the insurer only in the event of an action involving a liability guaranteed by the contract does not constitute a guarantee of legal protection that would be imposed on the insurer whatever the circumstances of the disaster. The activity provided for under the "remedy" referred to in point 5 may be regarded as exercised also in the interest of the insurer. It also follows from the aforementioned provisions of Article L. 121-2 of the Insurance Code that the same applies to the activity performed under the "criminal defense" guarantee mentioned in the same point, without the provisions of Article L. 113-1 of the same Code. Consequently, in holding that the stipulations of Article 2.2.19 of the special technical clauses, at least insofar as they relate to the "criminal defense" aspect, establish a guarantee of legal protection governed by Articles L. 127-1 et seq. Of the Insurance Code, the judge hearing the application for interim relief from the Toulon Administrative Court tainted his order with an error of law. Accordingly, and without it being necessary to examine the other grounds of appeal, the European Hospital Insurance Office is entitled to seek the annulment of that decision in so far as it orders, by Article 1, the termination of the contract on the basis of Article L. 551-20 of the Code of Administrative Justice.

 

  1. According to the second paragraph of Article L. 821-2 of the Code of Administrative Justice: "When the case is the subject of a second appeal in cassation, the Council of State ruled definitively on this case". Since the Conseil d'Etat has before it a second appeal on points of law, it is incumbent upon it to rule, within the limits of the above-mentioned appeal, on the conclusions of the contract of the hospital society. mutual insurance.

 

  1. The rejection of the conclusions presented by the mutual insurance hospital society on the basis of Article L. 551-18 of the Administrative Justice Code, which has become final, does not preclude the pronouncement, even automatically, of sanction on the basis of the provisions of Article L. 551-20 of the same Code, if the contract in question was signed before the expiry of the period required after the award decision was sent to the economic operators who submitted an application or an offer or during the suspension provided for in Article L. 551-4 or Article L. 551-9 of the Code.

 

  1. It follows from the investigation, as stated above, that the disputed market was signed by the inter-communal hospital center of Fréjus Saint-Raphaël in breach of the obligation laid down in Article L. 551- 4 of the Administrative Justice Code. It is therefore appropriate to pronounce one of the penalties provided for in Article L. 551-20 of the same Code.

 

  1. In order to determine the sanction to be pronounced, it is incumbent upon the judge of the contractual representative who finds that the contract was signed prematurely, in breach of the obligation of time mentioned in Article L. 551-20 of the Code of Administrative Justice, to assess the all the circumstances of the case, taking into account, in particular, the seriousness of the breach, its more or less deliberate nature, the greater or lesser capacity of the contracting authority to know and implement its obligations and the nature and the characteristics of the contract.

 

  1. It follows from the investigation that the inter-communal hospital center of Fréjus Saint-Raphaël, which could not ignore the conditions under which a contract may be signed when the pre-contractual judge has been seised, signed the disputed contract even though it was clearly informed of the existence of a pre-contractual summary, which had been notified to him. In these circumstances, it is appropriate to impose a financial penalty of 20 000 euros pursuant to the provisions of Article L. 551-20 of the Code of Administrative Justice.

 

  1. It is not necessary, in the circumstances of this case, to grant the form of order sought by the European Hospital Insurance Office and the mutual insurance company under Article L. 761-1 of the code of administrative justice.

 

DECIDE:

Article 1: Article 1 of the ordinance of July 27, 2018 of the judge of the summary of the administrative court of Toulon is canceled.

Article 2: A penalty of 20,000 euros, which will be paid to the Treasury, is imposed on the hospital intercommunal hospital of Frejus Saint Raphael in application of the provisions of Article L. 551-20 code administrative justice.

Article 3: The conclusions presented by the European Hospital Insurance Office and the Hospital Insurance Company under Article L. 761-1 of the Administrative Justice Code are rejected