INTRODUCTION

 

This interesting decision involved a financing agreement between the State, the French Transport Infrastructure Financing Agency (AFIT France), the “feu” Réseau Ferré de France (RFF) and various local authorities and public establishments. intercommunal cooperation (EPCI). The purpose of this agreement was to finance the Tours-Bordeaux section of the South Europe Atlantic high-speed line, in which the said communities and EPCI participated. As a reminder, the construction of this section, which was put into service in 2017, was only one step in the creation of the line, to which the Bordeaux-Spain, Bordeaux-Toulouse and Poitiers sections were to be added. Limoges, which are still today in the state of simple projects. Faced with this significant delay and the uncertainty weighing on the effective completion of these sections in the near future,several communities and EPCI had suspended their payments to RFF, thus violating the financing agreement. RFF then initiated their contractual liability before the administrative courts and obtained compensation for the sums not collected, a solution confirmed on appeal. Three urban communities have appealed to the Court of Cassation. 

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Two essential points will be analyzed here. Before the trial judges, the applicant communities requested the nullity of the financing agreement due, in particular, to their incompetence to conclude it and the disappearance of the cause of the contract, the entire line having not been completed. Conclusions rejected by the Paris administrative court of appeal in astop here confirmed. 
 

 

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I – INCOMPETENCE, A DEFECT OF PARTICULAR GRAVITY: CLARIFICATIONS ON JURISPRUDENCEBEZIERS I

 

In addition to a means relating to the admissibility of SNCF Réseau's request – coming to the rights of RFF – at first instance, easily dismissed by the Council of State, the first means of cassation put forward bythe agglomeration communities blamed their own incompetence to conclude the agreement, which should lead to its cancellation. 

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This is a fairly rare question in the dispute over the validity of administrative contracts as defined by the Béziers I case law. It is so rare that in his conclusions, the public rapporteur specifies that the Council of State does not never had to decide the question, reporting moreover that only that of the incompetence of the authority having decided in the name of the public entity to conclude a contract had already been decided by the High Court, the latter having then ruled that it was not a particularly serious defect in the sense of Béziers I (for exampleCE, Oct. 8, 2014, Cne d’Entraigues-sur-la-Sorgue).

 

In reality, it has already done so, implicitly in a company decisionCDA Publimedia of 2018 rendered in a Tarn-et-Garonne dispute. While the administrative court of appeal of Bordeaux had canceled a street furniture contract concluded by the municipality for incompetence, the Council of State censured this reasoning by considering that the municipality was indeed competent to conclude it. In doing so,he seemed to implicitly admit that the defect of incompetence was indeed one of those that could justify the cancellation of a contract.

 

In the decision commented here, the situation is similar:without explicitly stating that the lack of competence is a particularly serious defect justifying the cancellation of the contract, it judges that the applicant urban communities were perfectly competent to conclude the financing agreement, it being understood that the construction of the Tours-Bordeaux section, although not passing through their territory, was likely to “improve the accessibility of their territories […] and, consequently, to promote their economic development”, the actions of economic development of community interest being among the powers automatically exercised by the urban communities. 

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To tell the truth, such a solution should not be surprising, since incompetence is a means of public order, it is difficult to imagine that defects which could lead to the cancellation of a contract would be excluded. So much so that we are a little surprised when reading the conclusions of the public rapporteur who, invoking the principle of contractual loyalty, states:

 

“we will be allowed to doubt that this requirement is satisfied when a contracting community invokes its own incompetence" before concluding "you may consider it appropriate to specify thatin any case and in the circumstances of the present case, the applicant communities could not usefully invoke their own incompetence» (emphasis added).

 

The court did not follow him on this point and, we want to say, fortunately, because this would seem to give the principle of contractual loyalty the power to neutralize a means of public order that the judge is otherwise supposed to having to lift automatically…

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II – ELEMENTS ON THE CAUSE

 

The decision also provides an opportunity to briefly return tothe contentious treatment of the cause which, having formally disappeared from the civil code since the order of February 10, 2016, remains mobilized by the administrative judge. Here, the applicant urban communities actually put forward two arguments: one relating to the absence of cause, the other, in the alternative, to the disappearance of the cause due to the non-construction of the other sections.

 

Firstly, communitiesagglomeration The applicants argued that there was no initial cause, an argument rejected by the administrative court of appeal and analyzed here by the Council of State through its distortion control.

 

The High Court considers that the trial judge did not distort the documents in the case by considering that the agreement was not without cause. And for good reason ! The financing agreement did not subordinate their commitment to the completion of additional sections, so that the cause of the obligation was found here “in the completion of this single section” (Tours-Bordeaux, therefore).It must be said that it is particularly rare for the administrative judge to cancel a contract for lack of cause: in recent case law, we can mention the case of a contract relating to work already provided for in a previous contract. (CE, September 26, 2007, OPHLM du Gard).

 

Secondly, they considered that the non-completion of the additional sections had been likely to eliminate the initial cause of the contract – which would have resulted in the contract being void – a plea which the Council of State rejected as ineffective.