It is a very specific – and unprecedented – question of competence to which theConflicts Tribunal in decision of September 13.

 

In this case, the SNCF had published a notice of call for competition with a view to the award, according to the negotiated procedure, of a multi-awardee framework agreement relating to salary portage services, for its own benefit, but also in the name and for the has four of its subsidiaries,SNCF Réseau, SNCF Voyageurs, SNCF Gares & Connections AndSNCF freight.

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The company Cadres en mission, candidate ousted from the procedure, hasreferred to the court of Paris for a pre-contractual summary, in accordance with the provisions of article 5 of the order of May 7, 2009. As a reminder, these provisions make it possible to refer a pre-contractual summary to the judicial jurisdiction, under substantive conditions similar to those provided for by article L.551-1 of the Code of Administrative Justice, when the procedure in question is carried out with a view to the award of a private law contract for public procurement.

 

Considering that there was a serious difficulty regarding thejurisdictional jurisdiction, the Paris judicial court elevated the conflict. This was not the attitude of the Paris administrative court which, seized of the same procedure by another unsuccessful candidate, suspended the procedure so that a new public call for competition was launched by the SNCF. It remains that, seized, theConflicts Tribunal ruled by attributing jurisdiction to the administrative jurisdiction, the contract in question being, according to him,an administrative contract.

 

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However, the solution was not obvious and calls for a certain number of observations although we are aware that given the particular configuration of the species, it is unlikely to be deployed.

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It was not self-evident because theSNCF is, since January 1, 2020 and in accordance with the law for a new railway pact of June 27, 2018,a limited company.

 

However, thearticle L.6 of the Public Procurement Codeborn qualifies as administrative that the public contracts and concessions concluded by thelegal entities under public law.

 

However, the envisaged framework agreement was concluded not only for the specific needs of SNCF, but also in the name and on behalf of four of its subsidiaries, includingSNCF Network for whicharticle L.2111-9-4 of the Transport Code specifies that the contracts concluded within the framework of the execution of certain of its missions areadministrative.

 

Considering that the framework agreement was intended tosatisfy "mostly» the needs of SNCF Réseau, the Conflicts Tribunal concluded that it was an administrative contract, thus overcoming the organic obstacle of the conclusion of the contract by the SNCF company.

 

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I – The organic obstacle overcome: majority competence

 

As we have said, formally, the procedure had been initiated by the SNCF. However, it was expressly specified in the consultation documents that she was also acting in the name andon behalf of four of its subsidiaries. Therefore, in application of the theory of mandate, these four other entities had to be regarded asparties to the future framework agreement. All of these contracting entities being legal entities under private law, the contract was then“presumed to be private law” according to the public rapporteur (whom we thank for the kind communication of her conclusions).

But, and it is here that the great particularity of the species is revealed, for one of these entities,SNCF Network, contracts concluded as part of the execution of certain of its missions in application of the provisions of the Public Procurement Code areadministrativeby determination of law.

 

In reality, we were faced with a mixed contract, meeting both the criteria for identifying an administrative contract for part of its purpose and not meeting them for another part. We note here theinsufficiency of the organic criterionto resolve these kinds of difficulties. The Conflicts Tribunal then retains themajority object criterion to attribute jurisdiction to the administrative jurisdiction.

Indeed, according to the specifications of the framework agreement, salary portage services will be distributed as follows: 32% for SNCF Voyageurs, 12% for SNCF, 3% for SNCF Gares & Connections, 1% for Fret SNCF and 52% for SNCF Réseau. The object of the contract being mainly administrative by determination of the law and it being understood that, as the public rapporteur states, “it cannot be envisaged that the same contract is both administrative and private law”,the contract as a whole must be considered administrative.

 

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II – A limited practical scope?

 

We can naturally question theexact rangeof this truly unique solution. Does this mean that if the share reserved for SNCF Réseau had been a minority, it would have been a private law contract? It is possible to deduce this from the wording of the decision and this would fit well into the recent jurisprudence of the Conflicts Tribunal, which confines itself to a limitation of the extensive potentialities of the qualification of administrative contracts: reduction of the scope of the mandate theory (TC, December 11, 2017, Cne de Capbreton, n°4103), end of the Peyrot Company exception (TC, March 9, 2015, Rispail, n°3984) or organic confinement of the exorbitant clause criterion (TC, 2 Nov. 2020, Sté Évéha, n°4196).

 

But, above all, this case law proves interesting with regard to the classification of contracts concluded within the frameworkshared purchases, particularly with regard toorder groups. As a reminder, in accordance with the provisions of article L.2113-6 of the Public Procurement Code, “ordering groups may be formed between buyers in order to jointly award one or more contracts” and it is entirely possible that This case law applies in the event of a command group composed of public entities and private legal entities. The qualification of the contract as well as the jurisdictional competence which results from it would then dependthe legal nature of the majority beneficiaries of the services provided for in the contract.