Extract
[...] In other words, the public procurement contract is administrative when it contains extraordinary clauses of common law, some of which specify the nature of the contract imperatively linked to the exercise of a public service mission. Bibliography What is an administrative contract? (2024). vie-publique.fr. [...]
[...] In the first part, we will see that ambiguities of qualification exist concerning the nature of the public procurement contract leading to a possible qualification of the public procurement contract as an administrative contract (II). Des controverses doctrinales sur la nature du contrat de marché public A. A determination of the nature of the contract due to its submission to the Public Procurement Code A first doctrinal current considers that the public procurement contract, being subject to the Public Procurement Code, should be considered ipso facto as an administrative contract (i.e. a contract signed by the administrative authority for a general interest). [...]
[...] In order to perfectly grasp what the excessive regime of common law covers, it is necessary to focus on various contributions of the jurisprudence. Is considered as excessive clauses, the faculty of an administration to pronounce unilaterally the end of a contract, without prior formal notice and without compensation July 1962, Cts Cazautets/Ville de Limoges : a contract for the rental of a municipal circus-theater, concluded on 27 March 1923, united the spouses Cazautets with the city of Limoges, the city having decided to build a new real estate complex including a new theater decided to unilaterally break the contract, leading the Cazautets spouses to seize the Limoges Court of First Instance to know the demands for compensation made for the breach of the rental contract, the Tribunal of Conflicts, by a judgment of 2 July 1962, decides that the dispute falls within the competence of the administrative jurisdiction due to the presence of derogatory clauses from common law in the contract such as the unilateral termination of the contract; the imposition on the co-contractor of certain police charges (CE February 1988, SARL Pore Gestion) : the company J.L.P., owner of a site comprising part of the Paul Bert flea market, requests reimbursement by the municipality of the sums it has paid in execution of the agreement of 20 January 1968 and the protocols of agreement that have supplemented it, in which a lump-sum compensation is imposed on it, including police and garbage collection costs; by this clause of the contract, the Conseil d'Etat considers that it is a clause that is extraordinary under common law, allowing the contract to be classified as an administrative contract. [...]
[...] In its decision, the Conflict Tribunal specifies that work carried out by a company on behalf of the National Forestry Office under a contract falling within the CMP, which does not include any unusual clauses and aims to renovate a road for forest exploitation and not to renovate a road for the realization of a public service mission, leads to referring the case to a judicial court, thus excluding it from the qualification of administrative contract. Therefore, to consider the public market as an administrative contract, it is necessary to specify its conditions. II- A possible classification of the public market as an administrative contract A. [...]
[...] These are governed by the Public Procurement Code which defines them as 'contracts concluded for consideration by a buyer or a concession authority, to meet their needs in the fields of works, supplies or services, with one or more economic operators'Art. L2, Public Procurement Code). While the law nor the law n° 2001-1168 of 11 December 2001relating to urgent measures for economic and financial reforms (MURCEF Law) states in Article 2 that 'contracts concluded in application of the public procurement code have the character of administrative contracts', it is possible to question and wonder whether this is still really the case. [...]
