CE Sect. 21 March 2011, Municipality of Béziers (« Béziers II »)
Facing a termination measure, a party to an administrative contract may now ask the contract judge, and when needed the urgent applications judge, to order the restoration of the contractual relations and not only the payment of a compensation.
1. On the judicial remedies that are available to a party to an administrative contract which has been subject to a termination measure
The contract judge, before whom a dispute relating to a measure of performance of a contract is brought by one of the parties, may only, in principle, investigate whether this measure was taken in conditions such as to give an entitlement to compensation. However, having regard to the scope of such a measure of performance, a party to an administrative contract may lodge a comprehensive appeal before the contract judge challenging the validity of the termination of this contract and seeking the restoration of the contractual relations. It must lodge this appeal, including if the contract in question is relative to public works, within a period of 2 months from the date on which it was informed of the termination measure. Such conclusions may be accompanied with a request seeking the suspension of the execution of the termination, in order that contractual relations are temporarily restored.
2. On the duty of the contract judge before whom a comprehensive appeal is lodged seeking the restoration of the contractual relations
It is the responsibility of the contract judge, before whom one party lodges a comprehensive appeal challenging the validity of a termination measure and seeking the restoration of contractual relations, when he notes that this measure is vitiated with faults relating to its legality or proper basis, to determine whether it is appropriate, provided that it is not without purpose, to grant the request to restore contractual relations, on a date that he sets, or to dismiss the appeal, ruling that the observed faults are only likely to give to the applicant’s benefit an entitlement to compensation. Should he grant the restoration of contractual relations, he may decide, if submissions are made to this effect, that the applicant is entitled to compensation for the loss, where appropriate, that the termination has caused him, in particular the fact of the non-performance of the contract between the date of its termination and the date fixed for the restoration of the contractual relations.
To determine whether it is appropriate to grant the request to restore contractual relations, it is the responsibility of the contract judge to assess, having regard to the seriousness of the faults found and, where relevant, to that of the shortcomings by the applicant to its contractual obligations, as well as to the grounds for termination, if such a restoration shall not excessively harm the general interest and, having regard to the nature of the contract in question, the rights of the holder of a new contract whose conclusion would have been made necessary by the contested termination.
3. On the duty of the contract judge before whom submissions seeking the suspension of the execution of a termination measure are brought
Firstly, it is the responsibility of the urgent applications judge before whom, on the basis of Article L. 521-1 of the Code of administrative justice, submissions seeking the suspension of a termination measure are brought, after having verified that the performance of the contract has not become devoid of purpose, to take into account, in order to assess the condition of urgency, on the one hand, the serious and immediate harm that the disputed termination may result in for the public interest or those of the applicant, in particular the latter’s financial situation or the very exercise of its activity and, on the other hand, the general interest or the interests of third parties, in particular the holder of a new contract whose conclusion would have been rendered necessary by the disputed termination, which may be attached to the immediate execution of the termination measure.
Secondly, to determine whether there are grounds to consider creating, in the current state of the proceedings, a serious doubt as to the validity of the termination measure at issue, it is the responsibility of the urgent applications judge to assess whether, in the current state of the proceedings, the alleged faults appear to be sufficiently serious to lead to the restoration of contractual relations and not only to compensation for the harm to the applicant resulting from the termination.