Author: Sylvain Bergès, Partner
In recent years, the French administration tend to turn preferably to public procurement contracts rather than to unilateral decisions. French administrative case law has evolved to address this trend, ensuring both the stability of contractual relationships and compliance with the principle of legality, which leads administrative action. It appeared essential to renew the administrative judge office to offer him a wide range of powers related to the contract future.
Nevertheless, his office differs, depending on the claimants’ status – party or third-party to the contract – and the circumstances in which the judge is referred to.
The judge office in a dispute raised by a party to the contract
Parties have been recognized the ability to challenge the validity of the awarded contract, its execution or termination.
Before 2009, actions challenging public procurement contracts were conceptually closer of actions in cancellation of administrative acts. In the event of an irregularity, whatsoever its nature and importance, the judge could only cancel the contract signed. This could lead to legal uncertainty. Since 2009, the French administrative supreme court, le Conseil d’Etat, renewed the powers awarded to the judge when facing a remedy from the parties challenging the validity of a contract . To determine the validity of the claim, he will take into account the principle of loyalty of contractual relationships and the nature and importance of the alleged breaches. If they are particularly serious or arise from the unlawful content of the contract, he will be entitled to order its cancellation. Otherwise, the court may order its further enforcement, subject, if needed, to regularization, or its termination for the future.
Assuming the termination of the contract is challenged by a party, the claimant can ask for the recovery of contractual relationships (action en reprise des relations contractuelles). In consideration of the gravity of the breaches and the termination motives, the judge may order the parties to recover their contractual relationships. Nevertheless, his decision should not unduly restrain neither public interest nor the rights of the third-parties that may benefit from the termination.
The judge office in a dispute raised by a third-party to the contract
Until recent years, third parties could only challenge the separative administrative decisions attached to the public procurement contract (actes détachables). Since 2014 , remedies against such contracts are open to third parties which interests have been affected in a direct and certain way by its awarding conditions or its provisions.
Consequently, the judge has been granted the same range of powers over the contract as given when a party challenge the validity of the contract. However, cancellation of the contract may only be ordered provided that it does not interfere excessively with public interest or the rights of the parties.
Such a remedy is also open to members of the local authority deliberative assembly and to the French state representative in the department.
Third parties can also challenge the parties’ refusal to terminate the contract.
The judge office in emergency proceedings
The administrative judge may prevent breaches and punish violations of publicity and competition rules related to the tender procedure, through two specific emergency proceedings. They fall within the jurisdiction of a single judge (juge des référés) and are enclosed within a limited time frame.
As long as the contract is not yet signed, a pre contractual summary action (référé précontractuel) is open to the representative of the state in the department, and to anyone interested in being awarded the contract, such as unsuccessful bidders, and affected by a breach of publicity and competition rules. The judge can order the contracting authority to comply with its obligations and suspend the tender procedure or the execution of any decision relating thereto. He must take into account the benefit-risk balance of his ruling, regarding all interests likely to be affected including the public interest.
During this proceeding, the contracting authority must suspend the signing of the contract. If it does not comply, the claimant is allowed to bring a contractual summary action (référé contractuel) before the court, as are the representative of the state in the department or unsuccessful bidders who did not file a pre contractual action.
The same conditions apply to the precontractual and contractual summary actions. However, in the latter one, only the more severe publicity and competition breaches will be sanctioned. To that end, the judge is granted a limited range of powers among which order the termination of the contract, the reduction of its duration or financial penalties. He may order cancellation in defined cases such as the absence of any advertising and competition procedures or the violation of the standstill period.
- Conseil d’Etat, 28 décembre 2009, Commune de Béziers, n°304802, (aka. “Béziers I”).
- Conseil d’Etat, 21 mars 2011, Commune de Béziers, n°304806, (aka. “Béziers II”).
- Conseil d’Etat, 4 avril 2014, Département du Tarn et Garonne, n°358994.
- Conseil d’Etat, 30 juin 2017, Syndicat mixte de promotion de l’activité transmanche, n°398445.
- Articles L. 551-18 to 551.20 of the french code de la justice administrative.