CE Ass. 4 April 2014, Departement of Tarn-et-Garonne

Any third party to a public contract likely to be harmed in his interests by its conclusion is now authorised to form a direct appeal challenging the validity of the contract. Previously, only parties to the contract and ousted competitors could do so. However, in order to reconcile the principle of legality, to which public contracts are subject, with the principle of legal certainty requiring that there should not be excessive interference in ongoing contractual relations, third parties may only invoke irregularities in direct relation to the adversely affected interest of which they avail themselves or those of such gravity that the judge should automatically raise them.

1. The availability for third parties of an appeal contesting the validity of the contract

1.1. Legal interest in bringing the appeal

Any third party to a public contract likely to be harmed in his interests in a sufficiently direct and certain way by its conclusion or its terms is authorised to form before the contract judge a full jurisdiction appeal contesting the validity of the contract or of certain of its non-regulatory clauses which are divisible within it.

This action before the contract judge is also open to the members of the deliberative body of the territorial community or the grouping of territorial communities concerned as well as the representative of the State in the department in exercising a control of legality.

This appeal must be exercised, within two months from the completion of the appropriate advertising measures, including if the impugned contract relates to public works.

1.2. Effectiveness of the pleas

The representative of the State in the department and the members of the deliberative body of the territorial community or the grouping of territorial communities concerned, given the interests for which they are responsible, may invoke any grounds to support the thus defined appeal.

The other third parties may only invoke irregularities in direct relation to the adversely affected interest of which they avail themselves or those of such gravity that the judge should automatically raise them.

2. The renewed duty of the contract judge in third parties litigation

Should a third party under the conditions defined above, put the matter before the contract judge with submissions challenging the validity of the contract or of some of its clauses, it is the contract judge’s responsibility, after having verified that the appellant other than the representative of the State in the department or a member of the deliberative body of the territorial community or the grouping of territorial communities concerned, has an interest that is likely to be adversely affected in a sufficiently direct and certain way and that the irregularities that he criticises are those that he may usefully invoke, when he finds the existence of faults vitiating the validity of the contract, to assess the consequences:

  • Thus, it is his duty, after having taken into account the nature of these faults either to decide that the continuation of the performance of the contract is possible, or to invite the parties to take measures to regularise it within a time limit that he sets, unless the contract is cancelled or terminated.
  • In the presence of irregularities that cannot be covered by a regularising measure and which do not allow the continuation of the performance of the contract, it is his duty to pronounce, if appropriate with a delayed effect, after having verified that his decision will not result in excessive harm to the general interest, either the termination of the contract, or, if the contract has illicit content or if it is affected by a defect of consent or any other defect of particular seriousness that the judge must thus automatically raise, its total or partial cancellation.

The applicants may also enter with their appeal an application seeking, on the basis of Article L. 521-1 of the Code of administrative justice, the suspension of the performance of the contract.

Moreover, the contract judge may, if the matter is brought before him, including when he invites the parties to take regularisation measures, allow grounds seeking compensation for the damage arising from the infringement of the adversely affected rights.