Administrative Contract Qualification Criteria

Extract

[...] II- A decision highlighting the strict distinction between administrative contract and private law contract This strict distinction between the administrative contract and the private law contract has been able to operate through a rigorous assessment of the jurisprudential qualification criteria Consequently, it is the judicial competence that has been consecrated in the face of the inapplicability of administrative law A rigorous assessment of the jurisprudential qualification criteria In order to make their decision, the judges therefore focused on the three main qualification criteria existing, all from jurisprudence: first, the public market character, second, the presence or absence of an exorbitant regime of administrative contracts, and finally, the object of the contract. In addition, they focused on the quality of the contracting parties to position themselves on the competence. They deduced that the present lease contract signed, since it does not meet the criteria of the administrative contract, falls under private law. This solution is quite logical and expected. The judges' assessment is rigorous. [...]

[...] In addition, through this decision, the judges seem to want to maintain a clear and respectful distinction of the principle of specialization of the jurisdictions. In fact, by refusing to qualify a lease contract concluded as a public or administrative market, they avoid complicating the law and creating exceptions. This solution then allows for better protection of the cherished freedom of contract, but also good protection and application of the principles of common law. In this sense, the specificities of administrative law are preserved. [...]

[...] In fact, for a contract to be qualified as an administrative contract, both conditions must be met. The judges of the Tribunal des conflits then also examined the presence or absence of exceptional clauses as well as the potential public market character. The absence of exceptional clauses and the characteristics of a public market It was judged on the one hand that the lease 'does not have the character of a public market' and on the other hand that 'the contract does not contain clauses that, in particular by the prerogatives recognized to the public person contracting party in the execution of the contract, imply, in the general interest, that it falls within the exorbitant regime of administrative contracts'. [...]

[...] Furthermore, it avoids an excessive expansion of the domain of administrative law. [...]

[...] In fact, since the contract signed between the parties is not qualified as an administrative contract, it is up to the judicial judge to rule on the dispute between the parties. The judges of the Court of Conflict, by their present decision, adopt a position that is both pragmatic and restrictive. They have based it on the classical criteria for qualifying administrative contracts, namely the absence of public market and the absence of clauses that are excessive in relation to common law. [...]