Introduction

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If, in terms of principles, this decision does not have the scope that one might be tempted to attribute to it following a quick reading (it should be noted that it was rendered by the 7th and 2nd united chambers, not the Litigation Section, which is likely to attenuate its theoretical force), it remains that it attenuatesthe principle of the relative effect of contracts and is likely to have very important practical consequences in terms of works contracts.

As a matter of principle, and in accordance with the principle of the relative effect of contracts,a third party to a contract cannot invoke contractual breach in the context of an action for extra-contractual liability brought against one of the parties to a contract. This is a classic principle, reaffirmed by the Council of State in a decision ofSection of July 11, 2011, Madame Gilles, even though the Court of Cassation has admitted for fifteen years that “the third party to a contract can invoke, on the basis of tort liability, a contractual breach as long as this breach has caused him damage” (Cass. Ass. Plen., Oct. 6, 2006, Myr-Ho ).

Here, in the specific context of a quasi-tort liability action brought by a participant in a public works operation against a third party participating in the same operation, the Council of State came to attenuate its case law Madam Gilles. In this case, the municipality of Le Havre and the public land establishment of Normandy had awarded an allotment works contract for the construction of a subdivision, as part of a group of orders. The company in charge of the execution of the “structural works” lot had delivered its lot more than six months late, which had, consequently, caused a delay of eight weeks in the execution of the “frameworks” lot, carried out by the applicant company. Considering itself aggrieved by this failure of the first company to fulfill its contractual obligations, CMEG took the matter to the administrative court of Rouen to seek compensation. The court, like the Douai Administrative Court of Appeal on appeal, rejected this request, so that the CMEG appealed to the Council of State.

While annulling the CAA judgment, the Council of State came to provideclarification regarding the faults that can be invoked in the context of a quasi-tort liability action between operators of the same operation in a works contract, which opens up interesting compensation prospects for construction companies.

I – Invocation of a contractual breach in the context of a liability action quasi-delict between participants in the same operation of a works contract

A rigid application of the principle of the relative effect of contracts and the Madame Gilles case law traditionally leads to the impossibility for participants in a public works operation not bound by a contract to only be able to invoke faults of an extra-contractual nature. This was also the judgment of the Council of State during an appeal by the project owner against the subcontractors of one of the contract holders, with whom it was not linked. by no contract (CE, Dec 7 2015, Cne de Bihorel).

In this decision, the Council of State specified that if it was open to the project owner to seek the quasi-tort liability of these subcontractors, being able to invoke for this purpose “in particular, the violation of the rules of the art or the ignorance of legislative and regulatory provisions”, he could not rely on contractual faults, in accordance with the principle of the relative effect of conventions.

The situation seemed similar concerning the action (direct or by way of a warranty claim) of a participant in a work operation vis-à-vis subcontractors (which, let us remember, falls under the jurisdiction of the administrative judge unless the participants are bound by a private law contract,TC, June 2, 2018, Lloyds of London).

However, in a recent judgment, which went under the radar and was unpublished in the Lebon collection, the Council of State already seemed to implicitly admit that faults other than those of an extra-contractual nature could be invoked: "in the context of a dispute arising from execution of public works, the contract holder may seek quasi-tort liability from other participants in the same construction operation with whom he is not bound by any contract, in particular if they have committed faults or contributed to non-performance of its contractual obligations towards the project owner, without having to limit itself in this regard to the violation of the rules of the art or to the ignorance of legislative and regulatory provisions” (CE, Nov. 6, 2020, IOTA Survey Company). One clarification was missing, that of knowing whether contractual faults could be invoked, despite the principle of relative effect. Our decision responds to this:the applicant“may in particular seek their liability due to a breach of the stipulations of the contracts which they have concluded with the project owner ".

The reasons for crossing this mini-Rubicon are explained by Mr. le Corre in his conclusions (available on ArianeWeb). The public rapporteur demonstrates notable pragmatism, since she affirms that in reality, the only argument which would go against the solution rendered would have been due to the fact "of giving priority to general jurisprudence – that of the relative effect of the contract – on particular circumstances or areas”, before listing the practical arguments in favor of his position. Perhaps we were a little hasty in justifying one of the most venerable principles of common contract law...

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II – For businesses: sailing off the coast of Upper Normandy

Where, on the other hand, the solution adopted is laudable is that indirectly, it reduces the rigidity of Haute-Normandie jurisprudence (CE, June 5, 2013, Haute-Normandie region). As a reminder, in this 2013 decision, the Council of State considered that in the context of works contracts concluded according to a fixed price, the responsibility of the project owner due to execution difficulties encountered by the holder(s) could only be incurred in the event of fault on the part of the latter or in the event of disruption of the economic balance of the contract. Widely criticized by the construction sector, this case law has the effect of leaving few avenues of compensation for companies in the event of additional costs generated by execution difficulties.

In particular, when the additional costs not upsetting the balance of the contract were caused – as is the case in this case – by the delay of another company in the execution of its lot, the holder does not could, in the absence of fault on the part of the project owner, only turn towards a participant in the same faulty operation by invoking extra-contractual faults, it being understood that, in the event of a fault having both a nature contractual and an extra-contractual nature, the latter ensuring its invocability.

In practice, it was mainly through the door of breaches of the rules of the art that the applicants could rush in, but it is common to say that this is a fairly small category and, moreover, quite nebula.

But by allowing contractual breaches of another participant in the same work operation to be invoked, the Council of State mitigates the practical consequences of the Haute-Normandie case law, since it will now be possible to impose liability for additional costs. , not on the project owner, but on another participant in the same operation, due to breaches of its contractual obligations.

 

In practice, one question remains unanswered and there is no doubt that the lower courts will give substance to this case law, namely that of the scope of contractual breaches that can be invoked. If the judgment remains silent on the question, the public rapporteur had indeed touched on the question when delivering her conclusions. She stated that those which were concluded in the sole interest of the parties to the contract were “necessarily excluded from these mobilizable stipulations”, giving as the only example “solidarity clauses between the companies of a group”. It will therefore be up to the lower courts to make the distinction between invocable stipulations and non-invocable stipulations, through the criterion of the sole interest of the parties to the contract, which is perhaps too obvious to be simple.

If we can make a more general remark, this decision seems, to soften the rigidity of Haute-Normandie jurisprudence, to establish a sort of circuit of solidarity between companies participating in a public works operation, via the route responsibility: if the additional costs resulting from difficulties in execution are rarely the responsibility of the project owner, then we accept that between them, the companies have to share these additional costs according to the respect of their obligations contractual.
As if a para-contractual bubble encompassing all participants in a work operation was created.

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