CE, 17 avril 2025, n° 501427, Société Consortium Stade de France, classé B, France
Article(s) in Directive 2014/24/EU: Art. 29, 56, 57(4) e) and i), 58, 67
Topic: Exclusion grounds; Conflict of interest; Induly influence; Competitive procedure with negotiation; Selection criteria; Contract award criteria and sub-criteria; Regularisation of tenders.
Member State: FR
Court/rev. board: Conseil d’État
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Although the case concerns a concession contract, the legal issues are also relevant to public procurement. The national provisions cited concern public procurement and concession contracts.
The article 29 of the Directive 2014/24/EU was implemented by the Code de la commande publique (CCP), with the articles L. 2124-3, L. 3121-1 and L. 3124-1. The article 56 of the Directive 2014/24/EU was implemented by the CCP, with the articles L. 2152-1 to L. 2152-4, L. 3124-2, R. 2152-1 and R. 2152-2. The articles 58 and 67 of the Directive 2014/24/EU was implemented by the CCP, with the articles L. 2142-1, L. 2152-7 to L. 2152-9, L. 3123-18 and L. 3124-5. The article 57(4), e) and i) of the Directive 2014/24/EU was implemented by the CCP, with the articles L. 2141-10 and L. 3123-10. With regard to conflicts of interest, the French transposition is more extensive than the Directive, since the CCP covers any person who participates in the concession contract award procedure or is likely to influence the outcome, and not just the purchasers or the awarding authorities
2. FACTS
On 9 March 2023, the Minister for the Economy, Finance and Industrial and Digital Sovereignty launched an award procedure with negotiations in order for the State to conclude a concession contract for the operation of the Stade de France. Two groups of companies submitted their bids on 27 April 2023: Consortium Stade de France and GL Events Venues. Following the submission of their initial bids on 3 January 2024, the French State entered into negotiations with each of the candidates and invited them to submit their “final” bids.
In a letter dated 9 December 2024, the Minister of the Economy, Finance and Industrial and Digital Sovereignty informed Consortium Stade de France that its consortium’s “final” bid had been ranked second and that, pursuant to the consultation rules, it was entering into exclusive negotiations with GL Avents Venues, which had been ranked first.
Consortium Stade de France brought an action before the Tribunal administratif of Montreuil seeking annulment of the procedure for awarding the contract to operate the Stade de France or, at the very least, of the decision of 9 December 2024 by which the Minister decided to rank its final bid second and to enter into exclusive negotiations with its competitor.
In a decision no. 2500595 of 6 February 2025, the judge of the Tribunal Administratif of Montreuil ruled that the bid had to be rejected. Consortium Stade de France is appealing to the Conseil d’État.
Consortium Stade de France complains that the Minister disregarded the principles of equality and impartiality in the procedure, in particular by establishing bid selection criteria that took into consideration the “level” and “firmness” of the commitments obtained from the national sports federations. Lastly, the company claimed that the file contained a manifest error of assessment of the competitor’s technical, economic and financial capabilities.
3. JUDGMENT
In this case, the Conseil d’État ruled on several procedural issues.
On the question of potential conflicts of interest, the rapporteur public Nicolas Labrune rightly pointed out that the French transposition is more extensive than the Public Procurement and Concessions Directives, since the CCP covers “any situation in which a person who participates in the concession contract award procedure or is likely to influence its outcome has, directly or indirectly, a financial, economic or any other personal interest that could compromise his impartiality or independence in the context of the concession contract award procedure” (CCP, art. L. 3123-10), and not just buyers and awarding authorities as in the directives.
This wording also corresponds to the scope of the general principle of impartiality, which the Conseil d’État has long held applies to all persons who play a role in the selection process (CE, 24 June 2011, Ministre de l’écologie, du développement durable, des transports et du logement). In this case, however, the plea was factually flawed, as the Conseil d’État found that the awarding authority had not involved the sports federations, “which were not likely to influence the outcome, in the concession award procedure”. The argument was not without relevance, however, since the State had included a selection criterion relating to the “level” and “firmness” of the commitments obtained from the national sports federations by the two candidates. The applicant pointed to existing links between the FFR and GL Events, the only candidate admitted to continue the award procedure as part of a third negotiation phase. On this point, the Conseil d’État disagreed not only with the decision of the Tribunal administratif of Montreuil, but also with Nicolas Labrune’s conclusions, both of whom considered that there had been no clear conflict of interest after admitting that the principle of impartiality applied to the FFR. We can follow the argument of the rapporteur public:
“And, as a result, insofar as the federations are involved in the award procedure through their negotiations with the candidates, it seems difficult to imagine not applying the requirement of impartiality to them”.
The Conseil d’État seems to be adopting a position here that seems a little too formal to us, stating that the federations were not likely to influence the outcome. It is true that we do not know whether this is because they could not do so in any event, as they were not formally involved in the process, or whether it is because in this case the weight of this criterion was relative. But the fact that the weighting of this criterion is not specified in the judgment, whereas the conclusions indicated that it represented one of the 3 components of criterion no. 4, itself weighted at 20%, suggests that the first explanation is the ‘correct’ one, even if it seems open to criticism.
The rejection of other pleas is also open to discussion, starting with the award criterion of the “level” and “firmness” of the commitments obtained by the candidates from the national sports federations concerned (FFF and FFR). The applicant argued that, by using this criterion, the State had unlawfully delegated its power to assess bids to third parties involved in the contract award procedure. This argument was rejected by the Conseil d’État, as it was new at the cassation stage. A reading of the conclusions shows that there could have been a discussion on this point, i.e. on the fact that this argument had not been raised as such before the judge of 1st instance. That is why the rapporteur public had also taken care to say that it was unfounded:
“However, it should be remembered that the ’level and strength of the commitments obtained from the federations‘ was only one of the factors used to assess the ’credibility of the future concessionaire’s business plan‘, which was only one of the three factors mentioned in criterion no. 4 (along with the ’sharing of risks between the State and the concessionaire‘ and the ’strength and robustness of the concessionaire’s financing plan’), and that criterion no. 4 only accounted for 20% of the total score. In these circumstances, we find it hard to believe that the State would have abdicated its responsibility by leaving it entirely to the federations to assess the best bid. Above all, the weight given to the federations in evaluation criterion 4 seems to us to be inherent in the State’s decision to define its needs solely in functional terms and to leave it up to each candidate to negotiate with the federations, as we have already explained to you.”
As much as we agree with the idea that such a specification was not necessary as part of the definition of needs – a method which we rightly reject – it is questionable whether such a sub-criterion is legal, both in terms of illegally delegating competence and in terms of the transparency of this sub-criterion. In our view, the sub-criterion leaves too much room for discretion to the public authority with regard to transparency requirements. Admittedly, its very relative weighting may not have tainted the procedure with illegality, but it would not have been pointless for the judge to specify that such a criterion has no place in an award procedure. It is true that the position of the federations was not called into question on the basis of this argument, but rather on the basis of the argument – among others – that there was a breach of the equality of candidates in view of the role of third parties, in accordance with the Commune d’Houlgate judgment of 10 March 2006 (no. 264098). On this last point, the review of the Conseil d’État is limited, stating only that the judge did not err in law in finding “that neither the fact that Consortium Stade de France was the outgoing concessionaire nor the links that GL Events Venues had with the French Rugby Federation were such as to characterise a breach of equality between the bidders”. Admittedly, it was original, to say the least, to point out that, as the outgoing concession-holder, there was inequality because of the strained relations with the federations… On the other hand, it is reasonable to wonder whether, with regard to the criterion of transparency, this sub-criterion did not amount to “conferring discretionary freedom of choice” on the contracting authority in this case, as has been judged in relation to an aesthetic criterion, likely to undermine the principle of transparency (CE, 28 April 2006, Ville de Toulouse, no. 280197).
The rapporteur public’s argument that the two candidates were still in unfinished negotiations with the federations concerned also seems to us to support the idea that a criterion is irrelevant. In our view, the relationship with the federations should either have been established upstream by the State, or left to negotiation downstream of the procedure, as an element relating to the operating risk, but not as an element to be considered in assessing the bids.
As you can see, the role of these third parties gave rise to a number of arguments which, even if rejected, still leave us with a feeling of unease. It would have been preferable for the Conseil d’État, in an obiter dictum, to have made it clearer that the future use of the stadium by these federations should have been settled beforehand, or failing that, that this should not have been considered when assessing the bids.
The other pleas fell into several categories, one of which also related to another award criterion, namely “any commitments requested from the State and economic benefits for the State”, whereas the consultation regulations specified that “this criterion assesses the level of any subsidies or payments requested from the State under the concession contract, as well as the level of royalties and other financial flows to be paid by the concessionaire to the State”. The Conseil d’État ruled that “in considering, in a sovereign assessment free from distortion, that this criterion was sufficiently objective and precise, even though it took into account a forecast relating to the level of variable fees, given that the conceding authority had precise financial data, accompanied by contractual undertakings from the tenderers as to the methods of calculating the variable fee, the interim relief judge did not commit an error of law”, which seems logical.
With regard to the assessment of bids, it may be accepted that the judge relied on the sales figures of the parent company’s subsidiaries without there being any need to require firm commitments from the latter, given company law, and that it was then sufficient to state that the consolidated sales figures were “higher than those projected for the operation of the Stade de France”: in fact, the judge’s review is limited to that of a manifest error of assessment in such cases. The same applies to the assessment of the technical and professional capabilities of GL Events Venues, which intended to rely on those of another company that was not its subsidiary. Here, the Conseil d’État was content with a simple certificate from the managing director of this company stating that the applicant “would have all the capabilities, skills and resources of this company for the performance of the concession contract”, without, however, verifying whether the managing director had the authority to bind the company. Last but not least, the rapporteur public had doubts as to whether this overall assessment was consistent with the consultation documents, which seemed to imply that the turnover should come from the candidate itself, but he considered that this did not mean that the judge of first instance had “distorted” the facts, a view that the Conseil d’État endorsed.
With regard to the regularisation of bids during the negotiation procedure, the Conseil d’État reiterates what it ruled in the Société Ciné Espace Evasion judgment of 30 December 2024 (no. 491266):
“These provisions do not preclude the concession-granting authority, when it resorts to negotiation, from admitting, in compliance with the principle of equal treatment of candidates, a tenderer who has submitted an irregular initial bid. Compliance with this principle means, however, that it may not select a candidate whose regularisation of the bid would result in the submission of what would constitute an entirely new bid. In any event, the concession-granting authority is obliged to reject bids that remain irregular at the end of the negotiations”.
Above all, the conclusions of the rapporteur public make it possible to specify that this is possible even if intermediate bids are still irregular, including as in this case when it was irregular at the “final bid” stage, but there was still a phase of “fine-tuning” the bid with a single successful candidate… which is quite accommodating all the same. In addition, we learn that such a regularisation was prohibited under the tender rules, but that this had never been invoked before the first judge and therefore could not be invoked for the first time on appeal to the Conseil d’État. However, the rapporteur public considered that the bid was not in fact irregular.
Lastly, with regard to the duration of the contract, the Conseil d’État ruled that “in ruling out the plea that the duration of the Stade de France concession was unlawful because it was set at 30 years, even though the awarding authority had required the bidders to carry out minor works while allowing them to propose renovation, restructuring or extension works of their own, restructuring or extension, the judge noted that the bidders had precise and sufficient information about the scope of the concession, the State’s needs, particularly as regards the nature and type of investment expected, and the bid selection criteria, enabling them to present their bids in a meaningful way. In relying on this reasoning, by which he must be considered to have found that Consortium Stade de France had not been harmed by the breach of contract that it was alleging, the interim relief judge did not err in law”. In addition to the fact that the applicant had not been harmed, the rapporteur public emphasised the inoperability of this argument raised in a pre-contractual summary procedure, which is debatable.
The fact remains that, given the very different bids made by the two candidates – 100 million worth of works for the successful candidate, 400 million for the rejected candidate – such an option could have justified varying the duration, as initially envisaged (25 or 30 years), even though it was mainly a service concession.
The general impression that emerges from reading this judgment and the conclusions is of a certain “flexibility” left to the contracting authority. Could this be because we were dealing with a concession rather than a public procurement contract, and moreover with the State rather than a local authority?
