Extract
[...] 1411-1 of the General Code of Territorial Collectivities, which provides « Public service delegations of legal persons governed by public law falling within the scope of this code are subject, by the delegating authority, to a publicity procedure allowing the submission of several competing offers. » Thus, the disrespect of the rules relating to publicity and competition during the conclusion of a contract delegating a public service mission to the company could be a vice of particular gravity justifying the annulment of the contract by the administrative judge. However, the administrative court of appeal does not retain the qualification of 'delegation of a public service activity'. [...]
[...] This can therefore be invoked by third parties. In fact, it considers that "The defects tainting the disputed agreement, arising from the failure to comply with the rules on publicity and competitive tendering, also reveal, in the state of the investigation, a willingness on the part of the public authority to favor a a candidate" and that, due to the particular gravity of the defects and the absence of possible regularization, the contract is annulled. In the present case, the new company for the entertainment industry takes up this means to request the annulment of the contract, denouncing the disrespect of the rules of publicity and competitive tendering. [...]
[...] The administrative court of appeal had to consider whether, by the emphyteutic lease contract for the construction of a cinema complex, the municipality entrusted a public service activity to the company, in which case the contract had to meet various requirements. The administrative court of appeal responds negatively. First, it recalls the conditions under which a contract can be challenged by third parties, distinguishing privileged third parties from other third parties. Then, the court explains the different powers of the judge. [...]
[...] In 1963, the Council of State asserts that in order for there to be a public service, there must be a general interest activity, linked to a public person, and the possession of public power prerogatives.4 This last criterion has since disappeared; an entity can be considered as taking charge of a public service activity, even without public power prerogatives5. In order to know if the activity is linked to a public person, the administrative judge uses a range of indicators to demonstrate the absence of the 'public person' linkcontrol of this activity by the commune ». [...]
[...] However, the administrative court of appeal also dismisses this argument. Indeed, after having justified that the activity of cinematographic projection and cultural animation that the company intends to carry out in the building to be built is not a public service because it is not attached to a public person; the court argues that "the domain parcels subject to this contract could not be regarded as belonging to the public domain, due to their arrangement for the exercise of a public service. [...]
