CE Ass. 28 December 2009, Municipality of Béziers (« Béziers I »)

Seized by the parties, the contract judge is entrusted with a new mission. In disputes relating to the validity or the performance of the contract, he shall pay greater attention to the principles of fairness and stability of contractual relations.

Firstly, the parties to a public contract may lodge a comprehensive appeal challenging the validity of the contract which binds them. It is then the judge’s responsibility, where he finds the existence of irregularities, to assess their importance and consequences, after having checked that the irregularities of which the parties avail themselves are among those which, given the requirement of fairness of contractual relations, they may invoke before him. It is his responsibility, after having taken into consideration the nature of the illegality committed and taking into account the goal of stability in contractual relations:

  • either to decide that the continuation of the performance of the contract is possible, possibly subject to regularisation measures taken by the public person or agreed between the parties,
  • or, if necessary with a deferred effect, after having verified that his decision shall not excessively harm the general interest, to terminate the contract or, due only to an irregularity invoked by one of the parties or raised by him of his own motion, regarding the illicit nature of the content of the contract or to a fault of particular seriousness relating to the conditions in which the parties have given their consent, to cancel it.

Secondly, when the parties put before the judge a dispute relating to the performance of the contract which binds them, it is in principle his responsibility, given the requirement of fairness of contractual relations, to cause the contract to be applied. However, in the case only where he finds an irregularity invoked by one party or raised by him of his own motion, regarding the illicit nature of the content of the contract or to a fault of particular seriousness relating to the conditions in which the parties have given their consent, he must set aside the contract and may not settle the dispute in respect of the contract.