INTRODUCTION

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There are comments in the form of homage and this is certainly one. Following the sudden death of Claude Danthony, his beneficiaries decided to resume his last battles, the last proceedings he had initiated. This is particularly the case of those which gave rise to the judgments commented on here.

 

In his capacity as a member of the board of directors of the École Normale Supérieure de Lyon (hereinafter “ENS”),  Mr. Danthony contested, on the one hand, a deliberation of this same council of December 14, 2015 approving the agreement for the subscription and implementation of a public-private partnership contract relating to the rehabilitation, restructuring and implementation project. site standardsMonod from the ENS[1], and on the other hand the partnership contract concluded on April 18, 2016 between the University of Lyon[2] and the company Neolys (one) for the rehabilitation of this same site as part of the “Lyon campus project”[3].

 

We were therefore faced with aaction for abuse of power against a detachable act coupled with aresort Tarn-et-Garonne against the contract itself. Mr. Danthony was dismissed at first instance and on appeal by the Lyon courts, and his beneficiaries will also be rejected before the Council of State which takes this opportunity to specify in a particularly restrictive sense the notion of “privileged third party” and, in a way that is undoubtedly less questionable, that of an “act of approval”.

 

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I – THE STRICT INTERPRETATION OF THE CONCEPT DE “THIRD PARTY PRIVILEGE” 

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As a reminder, in its decision Department of Tarn-et-Garonne[4], the Council of State had opened up to all third parties the possibility of bringing an action directly before the contract judge to contest the validity of an administrative contract. However, in this same decision, he had surrounded the new appeal with a host of restrictions relating to the interest in taking action, the means invoked or the office of the judge, largely inspired by the Béziers I case law.[5] , minus the reference to contractual loyalty.

 

On the interest in acting, which interests us here, the Council of State made a partition between two categories of third parties to the contract. On the one hand, the third parties that the doctrine will soon qualify as “privileged”, limited by the Tarn-et-Garonne decision to “ members of the deliberative body of the local authority or group of local authorities» having concluded the contract and “ representative of the State in the department in the exercise of legality control ”. These, considered as guardians of legality (although with regard to certain municipal, departmental or regional opposition councilors, one can doubt this), can refer the contract to the judge in their capacity, thisquality giving them an interest in acting.

On the other hand, other third parties who, regardless of their "size" as Marcel Pagnol's Marius would say, are only eligible to file such an appeal on the condition that they are likely to be harmed in their interests in a sufficiently direct and certain by the conclusion of the contract or certain of its clauses. We obviously understand the approach of the Council of State, it has been commented on numerous times: the distinction, which is one of the materializations of thesearch for stability of contractual relations, is based on the fact that the prefect and the members of the deliberative body do not pursue particular interests and do not defend subjective rights.

 

In the judgment commented here (no. 454323), after recalling this solution, the Council of State judges that "Mr. Danthony cannot, therefore, be considered as having this faculty in his capacity as member of the council of the administration of the ENS de Lyon, which is, under the terms of the decree of May 7, 2012 establishing its operating and organizational rules, a public establishment of a scientific, cultural and professional nature within the meaning of article L.711- 1 of the education code”.

 

The judge could have said, cautiously, that Mr. Danthony was not entitled to rely on his status as an interested third party since the contract had been concluded, not by the ENS, but by the University of Lyon, within which he was not a member of the board of directors. But it should be noted that the Council of State preferred to clearly assert astrict interpretation of its case lawTarn-et-Garonne by asserting that as a member of the board of directors of a public establishment, Mr Danthony was not a member of the deliberative body of a local authority or a group of local authorities.

 

Such an interpretation appears to us to be deeply criticizable since it does not seemnot guided by the previously mentioned division between third party guardians of legality and other third parties pursuing private interests, it being understood that it was obviously not in the name of his own allegedly injured interests that Mr. Danthony attacked the contract, but in his capacity as a member of what comes closest to a deliberative body, the council of administration of ENS Lyon, wishing to preserve the legality of the action of its school.

 

More generally, this decision, due to its rigidity, does not allow all forms of administrative organization to be adopted. But, undoubtedly, the stability of contractual relations is well worth it...

 

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II – THE CLARIFICATION OF THE CONCEPT OF “ACT OF APPROVAL”

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The second solution (no. 454318) seems, for its part, more well-founded, even if by combining it with the first, we are struck by the fact that the meaning of the whole is that of a limitation of the opening of the courtroom from the judge to third parties to administrative contracts.

 

We remember that the Tarn-et-Garonne decision, in addition to opening an appeal of full jurisdiction allowing third parties to challenge the validity of an administrative contract, put an end to the Martin appeal[6] which made it possible to challenge by way of excess of power the detachable acts prior to the formation of the contract. Thus, under the terms of the Tarn-et-Garonne judgment, third parties are no longer admissible to file such an appeal for abuse of power against “the legality of the choice of the co-contractor, of the decision authorizing the conclusion of the contract and of the decision to sign it”.

 

The doctrine then questioned the survival of the dispute over detachable acts before the judge of excess of power.[7]  and it appears that this, although in decline, survives, if only with regard to acts detachable from the private law contracts of the administration.

 

In particular, the recourse for abuse of power is always open with regard to acts of approval of the contract which aresubsequent to its training and which, therefore, do not participate in the training process but only condition the entry into force of the contract. If the Tarn-et-Garonne decision remained silent on their fate, Bertrand Dacosta estimated in his conclusions that they should continue to be subject to the appeal for abuse of power “to the extent that would bechallenged their own vices»[8] (, a solution adopted by the Council of State two years later[9]  and here confirmed.

 

The contribution of the decision commented here then lies in the question of whether such an appeal is open against aact of approval issued by the public person having concluded the contract, here ENS Lyon whose board of directors had approved the subscription agreement.

 

As noted by the Council of State, in an assessment similar to that delivered by theAdministrative Court of Appeal of Lyon, the acts of approval susceptible to an appeal for abuse of power are only those which emanate from aadministrative authority “separate from the contracting parties”. On appeal, the CAA of Lyon justified this position by considering that since the so-called act of approval was issued by an organ of the contracting administration, it must be seen, although subsequent to the formation of the contract. , asinseparable from the commitment made.

 

By providing this clarification, the judge continues his undertaking to transfer the dispute over acts detachable from excess of power to full jurisdiction.

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[1] Judgment no. 454318

[2] Community of universities and establishments - ComUE - of which ENS Lyon is a member.

[3] Judgment no. 454323.

[4] CE, Ass., April 4, 2014, Department of Tarn-et-Garonne, n° 358994.

[5] CE, Ass., December 28, 2009, Municipality of Béziers, n° 304802.

[6] CE, August 4, 1905, Martin, n° 14220.

[7] See in particular F. Brenet, The future of the litigation of detachable acts in contractual matters, AJDA, 2014, p. 2061; D. Pouyaud, What remains of the recourse for abuse of power in contract litigation?, RFDA, 2015, p. 727.

[8] B. Dacosta, From Martin to Bonhomme, the new recourse of third parties against the administrative contract, RFDA, 2014, p. 425.

[9] CE, December 23, 2016, ASSECO-CFDT of Languedoc-Roussillon, no. 392815.

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