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?

CE 25 January 2019, BEAH, No. 423159

The Council of State considers that, in application of article L127-6 of the Insurance Code, the clause inserted in a public market of civil liability insurance by which the insurer undertakes to take charge of the defense or the representation of his insured in any legal or administrative procedure, when this coverage is exercised at the same time in his own interest, does not constitute a legal protection insurance clause.

Thus, a clause which provides for the intervention of the insurer only in the event of an action calling into question a liability guaranteed by the contract does not constitute a guarantee of legal protection which would be imposed on the insurer regardless of the circumstances of the disaster. In this case, the contract cannot 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 transaction any consistent transaction, upon payment of a previously agreed premium or contribution, to assume the costs of the procedure or to provide services arising from the insurance cover, in the event of a dispute or litigation between the insured and a third party, with a view in particular to defending or representing the insured on a claim in a civil, criminal, administrative or other proceedings or against a claim of which it is the subject or to obtain amicable compensation for the damage suffered ”. Article L.127-2 adds: " legal protection insurance is the subject of a separate contract from that established for the other branches or a separate chapter of a single policy with an indication of the content of legal protection insurance and the corresponding premium ”. Finally, Article L. 127-6 of the Insurance Code, located in the chapter entitled "Legal protection insurance" indicates that: "The provisions of this chapter do not apply: (…) / 2 ° A activity of the civil liability insurer for the defense or representation of its insured in any judicial or administrative procedure, when 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 an additional guarantee, in a contract whose main purpose is to guarantee the civil 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 as part of its civil liability guarantee, in order to allow the latter, on whom, in execution of the contract, will bear the final burden of the debt, to be able to insure the management of the trial, in place of or at the side of the insured, in order to best defend his interests.

In other words, when a public insurance market, the main purpose of which is to guarantee the insured's civil liability, contains a defense-recourse clause according to which the insurer undertakes to defend the insured or to exercise the remedies necessary to protect their rights, it can only be considered to provide an independent and autonomous guarantee if and only it provides for the intervention of the insurer regardless of the risks or events insured by the contract under the insured person's civil liability.

  • The criterion of the interest of the insurer is essential to qualify the contract and it must be assessed according to the scope of the legal assistance guarantee: the insurer has a personal interest after a legal action to which the insured party is a party when this action is likely to lead to a liability which he is required to guarantee. In this case, he must be able to reserve the possibility of ensuring himself the defense of the interests of his insured, in the rights and obligations of which he may be subrogated. The defense and representation clauses are then considered as trial management clauses, ancillary to the guarantee of civil liability which may oblige him to pay for the conviction of his insured. The contract in question is assimilated into a civil liability insurance contract within the meaning of 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. Under the terms of article L. 551-1 of the administrative justice code: »The president of the administrative court, or the magistrate whom he delegates, can be seized in the event of breach of the obligations of publicity and competition which is subject to the awarding by the contracting authorities of administrative contracts for the execution of works, the delivery of supplies or the provision of services, with an economic consideration consisting of a price or an operating right (…) / The judge is seized before the conclusion of the contract. " Under the terms of article L. 551-4 of the same code: "The contract cannot be signed from the referral to the administrative court and until the notification to the contracting authority of the jurisdictional decision". Under the terms of article L. 551-13 of the same code: »The president of the administrative court, or the magistrate whom he delegates, can be seized, once concluded one of the contracts mentioned in articles L. 551-1 and L. 551-5, of an appeal governed by this section “. Under the terms of article L. 551-14 of the same code: »The persons empowered to act are those who have an interest in concluding the contract and who are likely to be injured by breaches of the obligations of publicity and setting in competition to which these contracts are subject, as well as the State representative in the case of contracts concluded by a local authority or a local public establishment. / However, the appeal governed by this section is not open to the applicant having made use of the appeal provided for in article L. 551-1 or in article L. 551-5 since the contracting authority or the 'the contracting entity has complied with the suspension provided for in Article L. 551-4 or in Article L. 551-9 and has complied with the court decision rendered on this appeal “. Under the terms of Article L. 551-18 of the same code: "The judge declares the contract null when none of the publicity measures required for its award have been taken, or when publication in the Official Journal has been omitted of the European Union in the event that such publication is prescribed. / The same cancellation is pronounced when the procedures for reopening the competition provided for the award of contracts based on a framework agreement or a dynamic purchasing system have been disregarded. / The judge also declares the contract null and void when it has been signed before the expiry of the period required after the dispatch of the award decision to economic operators who have submitted an application or an offer or during the suspension provided for in the 'article L. 551-4 or in article L. 551-9 if, in addition, two conditions are met: the ignorance of these obligations deprived the applicant of his right to exercise the recourse provided for by articles L. 551-1 and L. 551-5, and the publicity and competition obligations to which its award is subject have been disregarded in a way which affects the chances of the author of the action to obtain the contract. " Finally, under the terms of article L. 551-20 of the same code: ”In the event that the contract was signed before the expiration of the period required after the dispatch of the award decision to economic operators having submitted a application or an offer or during the suspension provided for in Article L. 551-4 or in Article L. 551-9, the judge may declare the contract null, terminate it, reduce its duration or impose a financial penalty ".

 

  1. It appears from the documents in the file submitted to the summary judge of the Administrative Court of Toulon that the intercommunal hospital center of Fréjus Saint-Raphaël launched in October 2017, on behalf of the grouping of orders that it formed with the hospital center of Saint- Tropez and 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 hospital civil liability and related risks, intended to cover the consequences pecuniary of the questioning of the civil responsibility of these two establishments by third parties. By an email dated 12 December 2017, the hospital mutual insurance company was informed of the rejection of its offer and of the award of the contract to the group formed by the European Hospital Insurance Bureau and the companies Amtrust International Underwriters and Areas insurance. The hospital mutual insurance company first asked the judge of the pre-contractual summary proceedings, on the basis of article L. 551-1 of the code of administrative justice, on the one hand, to annul the decision by which the center intercommunal hospitalier de Fréjus Saint-Raphaël had rejected his offer and the decision to award the contract to the grouping formed by the European Hospital Insurance Bureau and the companies Amtrust International Underwriters and Areas Assurances and, on the other hand, to order him to resume the procedure at the stage of the examination of the offers and communicate to him the reasons for the rejection of his offer and the characteristics and advantages of the selected offer as well as a set of documents relating to the market, including the analysis report of the offers. Informed of the signing of the contract by the intercommunal hospital center of Fréjus Saint-Raphaël with the awarding group, it then asked the President of the Court for the cancellation of this contract on the basis of the provisions of Articles L. 551-13 and L. 551-18 of the code of administrative justice relating to the contractual summary procedure. By an order of January 15, 2018, the judge of the summary proceedings of the administrative court of Toulon pronounced a dismissal to rule on the conclusions of the hospital insurance mutual company (SHAM) relating to the pre-contractual summary and rejected his conclusions presented under of the contractual summary. By a decision n ° 417734 of June 25, 2018, the Council of State, ruling in the litigation annulled this ordinance insofar as it rules on the conclusions of the contractual summary procedure and referred the case, to this extent, to the administrative court of Toulon.

 

  1. By an order of July 27, 2018, the summary judge of the Toulon administrative court rejected the conclusions of the request of the hospital company of mutual insurance presented on the basis of article L. 551-18 of the code of administrative justice , but ordered, on the basis of article L. 551-20 of the same code, the termination, from March 1, 2019, of the contract in dispute, which was initially to expire on December 31, 2020. By the appeal that he formed on August 13, 2018 before the Council of State, the European Hospital Insurance Bureau must be regarded as requesting the cancellation of this order as it orders, on the basis of article R. 551- 20 of the Code of Administrative Justice, the termination of the contract from March 1, 2019.
  2. To order the termination of the contract, the judge of the Toulon administrative court noted that the hospital center had disregarded the prohibition to sign it from the referral to the judge of the pre-contractual summary and until the notification of the decision of this, provided for by article 551-4 of the code of administrative justice. It further considered that the market included a legal protection insurance clause 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 Assurances, the only member of the group responsible for guaranteeing legal protection risks, the hospital center had concluded the contract with a candidate whose offer was irregular. The applicant submits that it was at the cost of a breach of Article L. 121-7 of the Insurance Code that the President of the Court of First Instance identified a legal protection insurance clause.

 

  1. It appears from the documents in the file submitted to the judge that the article 2.2.19 of the special technical clauses entitled "Legal protection of agents" stipulates that "The insurer covers the effects of law n ° 83-634 of 13 July 1983 relating to the rights and obligations of civil servants, in particular its article 11 (…), the establishment's obligation to guarantee the costs of criminal defense and the appeal of any agent implicated in the context of his mission within the establishment ", that under the" criminal defense "guarantee," the insurer undertakes to defend the insured, the director of the establishment and persons having received a delegation of power in the exercise of their functions , as well as the agents placed under the authority of the insured during their service, when they are personally prosecuted before a repressive jurisdiction on the occasion of a damage guaranteed under the contract »Civil Liability Insurance e "" and that under the "recourse" guarantee, the insurer undertakes to claim compensation from a third party responsible for the material and immaterial damage which results therefrom, suffered by the insured, and which relate to one of the risks included in the basic guarantees or expressly covered under one of the optional guarantee extensions ".

 

  1. Under the terms of Article L. 127-1 of the Insurance Code: "A legal protection insurance transaction is any transaction consisting in paying for a premium or a previously agreed contribution, procedural costs or to provide services arising from insurance cover, in the event of a dispute or litigation between the insured and a third party, in particular with a view to defending or representing the insured on demand in civil, criminal proceedings, administrative or other or against a claim of which it is the object or to obtain amicable compensation for the damage suffered ". Under the terms of Article L. 127-6 of this code, located in the chapter entitled "Legal protection insurance": "The provisions of this chapter do not apply: (…) / 2 ° A activity of the civil liability insurer for the defense or representation of its insured in any judicial or administrative procedure, 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 is not liable for loss and damage resulting from an intentional or willful fault of the insured". Under the terms of article L. 121-2 of the same code: »The insurer guarantees loss and damage caused by persons for whom the insured is civilly liable under article 1242 of the civil code, whatever the nature and gravity of these people's faults. "

 

  1. In addition, under the terms of article 11 of the law of July 13, 1983 relating to rights and obligations of the civil servants: "I. - On account of his functions and independently of the rules fixed by the penal code and by the special laws, the civil servant or, where applicable, the former civil servant benefits, under the conditions provided for in this article, from protection organized by the public authority which employs him on the date of the facts in question or of the facts having been imputed in a defamatory manner. / II. - When the official has been prosecuted by a third party for lack of service and the attribution conflict has not been high, the public authority must, insofar as a personal fault detachable from the exercise of its functions does is not attributable to the official, cover him with the civil convictions pronounced against him. / III. - When the official is the subject of criminal proceedings on account of facts which are not in the nature of a personal fault detachable from the exercise of his functions, the public authority must grant him his protection. An official heard as an assisted witness for such acts benefits from 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 civil servant against voluntary attacks on the integrity of the person, violence, acts constituting harassment, threats, insults, defamations or outrages of which he could be victim without that personal fault can be attributed to him. It is required to repair, if necessary, the damage which has resulted therefrom (…) ”;

 

  1. It follows from the provisions of Article L. 127-6 of the Insurance Code, cited in point 6, that a legal protection insurance clause does not constitute the clause by which the insurer undertakes to cover the defense or representation of his insured in any legal or administrative procedure, when this coverage is exercised at the same time in his own interest. Thus, a clause which provides for the intervention of the insurer only in the event of an action calling into question a liability guaranteed by the contract does not constitute a guarantee of legal protection which would be imposed on the insurer regardless of the circumstances of the disaster. The activity provided for under the “recourse” guarantee mentioned in point 5 can 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 carried out under the "criminal defense" guarantee mentioned in the same point, without there obstruct the provisions of article L. 113-1 of the same code. Consequently, by judging that the stipulations of article 2.2.19 of the particular technical specifications, at least insofar as they relate to the "criminal defense" component, institute a guarantee of legal protection governed by articles L. 127-1 et seq. Of the Insurance Code, the summary judge of the Toulon administrative court vitiated his order with an error of law. Consequently, and without there being any need to examine the other grounds of appeal, the European Hospital Insurance Bureau is entitled to request its cancellation in so far as it orders, by its Article 1, the termination of the contract on the basis of article L. 551-20 of the administrative justice code.

 

  1. Under the second paragraph of article L. 821-2 of the administrative justice code: "When the case is the subject of a second cassation appeal, the Council of State decides definitively on this case". The Council of State being seized, in this case, of a second appeal in cassation, it falls to him to rule, within the limits of the cassation pronounced above, on the conclusions of the contractual summary procedure of the hospital society of mutual insurance.

 

  1. The rejection of the conclusions presented by the mutual insurance company hospital on the basis of article L. 551-18 of the code of administrative justice, become definitive, does not prevent that is pronounced, even ex officio, sanction on the basis of the provisions of article L. 551-20 of the same code, if the disputed contract was signed before the expiration of the period required after the sending of the award decision to the economic operators having presented a candidacy or an offer or during the suspension provided for in article L. 551-4 or in article L. 551-9 of the code.

 

  1. It follows from the instruction, as it was said above, that the contract in question was signed by the intercommunal hospital center of Fréjus Saint-Raphaël in breach of the obligation provided for by article L. 551- 4 of the Code of Administrative Justice. It is therefore necessary to pronounce one of the sanctions provided for in article L. 551-20 of the same code.

 

  1. To determine the sanction to be pronounced, it is up to the judge of the contractual summary which notes that the contract was signed prematurely, in disregard of the obligations of delay 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 gravity of the breach committed, its more or less deliberate nature, the more or less great capacity of the contracting authority to know and to implement its obligations as well as the nature and the characteristics of the contract.

 

  1. It follows from the instruction that the intercommunal hospital center of Fréjus Saint-Raphaël, who could not ignore the conditions under which a contract can be signed when the judge of the pre-contractual summary procedure was seized, signed the disputed contract when he was clearly informed of the existence of a pre-contractual summary, which had been notified to him. In these circumstances, it should impose a financial penalty in the amount of 20,000 euros in application of the provisions of Article L. 551-20 of the Code of Administrative Justice.

 

  1. There is no need, in the circumstances of this case, to allow the claims presented by the European Hospital Insurance Office and the mutual insurance company hospital under Article L. 761-1 of code of administrative justice.

 

DECIDE:

Article 1: Article 1 of the order of July 27, 2018 by the judge of the summary proceedings 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 intercommunal hospital center of Fréjus Saint-Raphaël in application of the provisions of article L. 551-20 of the code of administrative justice.

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