Council of State Ruling on Public Domain Occupation Conventions

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Council of State Ruling on Public Domain Occupation Conventions

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Themes

Public domain occupation conventions, parliamentary assembly, judicial immunity, competition principles, public procurement, cross-border interest, administrative judge competence, public service concessions, transparency, impartiality, Directive 2006/123/CE, services in the internal market, state liability, justiciability, competitive tendering, economic purpose, European case law, Council of State, Paris Tennis Company, public establishment, fundamental principles, AOT regime, public contract, concession, Promoimpresa, CJEU, Court of Appeal, CAA, Senate, Paris Tennis League, delegation of public service, oversight, management activity, economic purposes, strengthened judicial control, necessary clarification, uncertain judicial control extent, restrictive approach invalidation, public procurement obligation, AOTs, cross-border interest absence, error of law, judicial solution implications, Article 8, ordinance of 17 November 1958, parliamentary assemblies functioning, state liability principle, damages caused, assemblies services.

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Abstract
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Abstract

The Council of State asserts that conventions for occupying public domain, including those from parliamentary assemblies, are subject to public procurement principles and competition.

Extract

[...] Article 8 of the ordinance of 17 November 1958 relating to the functioning of parliamentary assemblies establishes a principle of state liability for damages caused by the services of the assemblies1. 2. The extensive interpretation of the Council of State in favor of the justiciability of domain conventions. The Council of State adopts an extensive reading of the regulatory framework by asserting that conventions for the occupation of public domain, including when they emanate from a parliamentary assembly, benefit from no judicial immunity.2. [...]

[...] The exclusion of the regime of public service concessions. The Court of Appeal (CAA) had estimated that the disputed convention did not constitute a delegation of public service, since the Senate had reserved no right of oversight on the management of the activity exercised by the Paris Tennis League3. 2. The implications of this qualification in terms of public procurement. As a public establishment, the disputed convention falls within the fundamental principles of public domain and must comply with the requirements of public procurement, although it is neither a public contract nor a concession4. [...]

[...] The error of law pointed out by the Council of State. The Council of State rejects this interpretation by stating that the application of Directive 2006/123/CE on services in the internal market cannot be conditioned by the demonstration of a cross-border interest6. The affirmation of a general principle of competitive tendering for AOTs with an economic purpose 1. Alignment with European case law. The CJEU, in its decision in Promoimpresa (2016), it has clearly established that permits for the occupation of public domain for economic purposes are subject to the principles of transparency and impartiality7. [...]

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