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After his victories on the green meadow at the start of the season, it is on thejudicial terrain what'Olympic Marseille has just recorded a new success.

The case which gave rise to thisdecision, rendered by the combined 8th and 3rd chambers of the Council of State and which will be published in Lebon, caused a lot of noise.

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July 16, 2009, as part of the organization of a Madonna concert at the Vélodrome stadium by the company Live Nation France, which had concluded aprovision agreement of the stadium with the commune of Marseille, the metal structure of the stage collapsed, causing the tragic death of two workers.

This eventand the judicial investigation operations that it had caused had made it impossible to hold the Ligue 1 match between OM and Lille. However, Olympique de Marseille and the municipality of Marseille were linked by a biennial agreement to make the stadium available in particular so that club meetings can take place there, with priority over any other event. The match having to be played at the Mosson stadium in Montpellier,Olympique de Marseille has filed a contractual liability action against the municipality with the Marseille administrative court, the latter having been unable to honor its contractual commitments due to the event.

 

 Legal background 

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In this case, after the Council of State initially censored the decisions of the lower courts for reasons to which we will return only marginally, the administrative court, followed in its reasoning by the court administrative appeal of Marseille (CAA Marseille, March 6, 2020, Olympique de Marseille), had judged thatthe collapse of the stage constituted an event of force majeure capable of exonerating the municipality from its contractual liability.

This appears to be a classic application of the theory of force majeure which assumes three conditions:

 

1. unpredictability,

2. irresistibility and

3. exteriority of the event in relation to the parties to the contract

(CE, Jan. 9, 1909, Maritime Message Company).

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But in the decision commented here, theCouncil of State annuls the Court’s judgment and, settling the matter on its merits, grants the club's request for compensation.

 

Two points, of unequal importance, deserve attention.

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1.Reduction of the scope of force majeure

 

This is themost notable contribution of the judgment, which justified its classification in A by the Council of State.

Indeed, the latter believes that “the unavailability of the stadium, although it results from errors committed by the company Live Nation France and the latter's subcontractors in the assembly of the stage structure, could not have occurred without the initial decision of the municipality of Marseille to make the Vélodrome stadium available to this company for the organization of a concert". Such writing, quite astonishing it must be said, calls for several remarks:

 

• First, it seems, even if this does not emerge clearly from the conclusions of therapporteur public, that the Council of State hasabandoned the condition of exteriority to substitute that retained by the newarticle 1218 of the Civil Codein its wording resulting from the order of February 10, 2016 and according to which the event must escape “the control of the debtor”. Here, the fact that the debtor of the obligation to make the stadium available, the city therefore, is party to the contract whose execution gave rise to the event could meet this control criterion, particularly in an administrative contract where the person public always has a certain control over its co-contractor.

 

• Then, and to qualify what has just been said,it is difficult to see where the border would be between what is under control and what escapes control. In this case, the collapse of the stage was caused by faults of the subcontractors of the co-contractor of the municipality: the latter's control over the operations was rather remote, to say the least. say. By adopting such a restrictive conception of this criterion of control, the Council of State deals a clearly severe blow to the theory of force majeure in contractual matters.

 

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2. A “folkloric” assessment of harm

 

Let us also return, and briefly, to the assessment of the damage retained by the Council of State. As you can imagine, the areas of damage studied were numerous, the unavailability of the stadium and the relocation of the OM-Lille match having required significant logistics - and therefore costs -: no less than seven positions were the subject of a compensation claim by the club. Certainly, the city clumsily tried to argue that there was no causal link between these various damages and the unavailability of the stadium, believing that the club had relocated the meeting “on its own initiative”. Such an argument did not, logically, stand up to analysis (especially since the Council of State had rejected it when the matter was first presented to it in2019), the club having only taken the lead in the face of a contractual non-performance which was, in the state of the legal procedure, inevitable.

 

Concerning more particularly the quantification of the damages - in addition to the club's comical request to be compensated for unjustified personnel costs and concerning people not employed by the club - it is above all the assessment of the loss of revenue from ticketing (remember that the Mosson stadium only has 32,900 seats where the Vélodrome, at the time, could accommodate 60,000 people) which is quite special, sincethe Council of State proceeds by comparison. It is true that an estimate of a shortfall by reference to a given accounting year is made by the administrative judge, but here, the data was very specific since it involved comparing two football matches... The judge then opts not for a comparison between the previous matches between OM and Lille, but reasons by temporality. He then uses the match against AJ Auxerre which took place the previous season at the same period to assess the shortfall, a method which could be transposed to other similar types of sporting events moved for external reasons. .

Article written by Valentin Lamy
ConsultantDOREANLAWYERS

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