Council of State Extends Unilateral Modification Power to Illicit Clauses

Extract

[...] In fact, the Court had estimated that a unilateral modification decision could not be implemented solely to 'purge the contract of illicit stipulations'. The Council of State therefore extends this power to these clauses, provided they are divisible; and this in a concern for the economy of litigation and contractual loyalty. B - The possibility for the public person to modify illicit clauses, useful effect to contractual loyalty One can ask the question of the extension of unilateral modification to divisible illicit clauses of the contract. [...]

[...] Also, in a guarantee of good contractual relations and loyalty between the parties, one can understand why the Council of State (considerations 3 and 4 of the present judgment) extends the modification to illicit clauses in order to make the contract licit. This power of modification must evolve by granting it a useful effect. The counterpart is that this ultimately avoids litigation that would clutter the courts and, in the interest of good governance, the parties will not have to systematically rely on the judge to purge, with a praetorian modification, the illicit clauses of the contract. But the judge has retained the case of non-divisible clauses. If the illicitness of a non-divisible clause affects the contract, only termination is possible. [...]

[...] In order to identify the threshold of substantiality of a unilateral modification, the CCP provides useful clarifications to Article R. 2194-7 by reading it on the contrary since modification is substantial, notably, when at least one of the following conditions is met: 1. It introduces conditions that, if they had been included in the initial procurement procedure, would have attracted more economic operators or allowed the admission of other economic operators or allowed the choice of an offer other than the one retained; 2. [...]

[...] The Court rejected the SIPPEREC appeal on 18 May 2022. In consequence, the SIPPEREC is appealing to the Conseil d'État in cassation. Although this is not explicitly raised in this judgment, we can refer to the conclusions of the rapporteur public, Marc Pichon de Vendeuil (contrary conclusions to the device rendered and consultable at RFDA, p 'The powers of the public person in the case of illegitimacy of a clause of the contract'). The SIPPEREC's request before the Conseil d'État comprises a single means drawn from the error of law of the Court of Appeal, which held that the SIPPEREC could not unilaterally modify article 31B of the three contract charges of the concessions. [...]

[...] And although this is not explicit, like exorbitant clauses (TC,2 November 2020, Institut national de recherches archéologiques préventives (INRAP), n° 4196), It can be easily estimated that the modification is a power of the public person and not of the contractor (even if the latter is a public person). Now the public procurement code lists the cases of authorized modifications. A contract can be modified without being put out to tender when: « 1. The modifications were foreseen in the initial contractual documents; 2. Additional works, supplies or services have become necessary; 3. The modifications are made necessary by unforeseen circumstances; 4. [...]