CE, 15 juillet 2025, Société Le Chalet des Jumeaux, classé B, France
Article(s) in Directive 2014/24/EU: Art. 46 (2)
Topic: Division of contracts into lots; limitation of lots awarded to a tenderer
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.
The article 46 (2) of the Directive 2014/24/EU was implemented by the Code de la commande publique (CCP), with the articles L. 2113-10 et R. 2113-1.
2. FACTS
By order of 7 April 2017, the Prefect of Var granted the municipality of Ramatuelle a concession for the natural beach of Pampelonne. On 30 June 2017, the municipality of Ramatuelle launched a competitive bidding process for the award of sub-concession agreements for public beach services on this beach. The sub-concession was divided into 30 lots. The consultation rules stipulated that candidates may only submit a bid for one or two lots, provided they indicate their preference. All lots were awarded to different companies on 16 July 2018. Le Chalet des Jumeaux, having failed to win any lots, brought proceedings before Tribunal administratif of Toulon seeking the cancellation of the sub-concession agreements. In addition, the company is claiming the sum of 3,618,121 € in compensation for the damage suffered because of its unlawful exclusion from the procedures for awarding sub-concession contracts.
At first instance, the Tribunal administratif of Toulon rejected the applicant company’s claims. However, on appeal, the judge annulled the contracts and awarded it 2,725,795 € in compensation for the damage suffered as a result of its unlawful exclusion from the procedure. The municipality then appealed to the Conseil d’État, which, in a decision dated 10 March 2023, overturned the ruling of the Marseille Administrative Court of Appeal. The case was referred back to the same court, which, in four judgments in October and November 2023, dismissed all of Le Chalet des Jumeaux‘s claims. It is in this context that the case has been referred back to the Conseil d’État.
Primarily, the applicant company argues that the municipality could not limit economic operators to submitting candidatures and tenders for a maximum of two lots and that such a restriction would undermine the freedom to provide services guaranteed by Article 56 of the Treaty on the Functioning of the European Union. Finally, the company argues that the municipality of Ramatuelle did not define with sufficient precision, for each beach lot, the type of establishment and range of services, fees and rates expected according to user categories, compared bids that were too different and thus exercised discretionary power.
3. JUDGMENT
The ruling addresses a question never raised before the Conseil d’État: could a licensing authority decide to limit the number of bids per economic operator when awarding several “lots”? The Conseil d’État‘s answer is positive in principle, but conditional, and the judge ultimately ruled that the conditions were met in this case, thereby dismissing the appeal.
In principle, there is little surprise on the part of the Conseil d’État. Admittedly, the Public Procurement Code does not expressly provide for this possibility for concessions, but only for public contracts. Nevertheless, it should be remembered that the possibility of such restrictions on access to public procurement had been accepted in principle for public contracts by the Conseil d’État even before the texts provided for it (CE, 20 February 2013, Société Laboratoire Biomnis, n° 363656).
The Conseil d’État explicitly refers to “the purpose of the concession, the specific requirements of the delegated public service, or the contract award procedure” as grounds that may justify such a limitation. With regard to the award procedure, the rapporteur public endorses the reasoning of the Administrative Court of Appeal, which justifies a limitation on the basis of “the need for the granting authority to streamline the award procedure in order to avoid receiving too many bids and the conduct of the procedure exceeding its administrative and financial capacities,” which can be accepted for more or less similar beach concessions. As for the purpose of the concession or the requirements of public service, these are not particularly illustrated by the rapporteur public or the Conseil d’État, which itself lacks “motivation” for its reasoning in this case.
Finally, beyond the grounds, the Council imposes one condition: these restrictions must not be “disproportionate”. Here too, there is a lack of motivation, both in the judgment and in the conclusions. One might think that this refers to the number of bids that can be submitted: here, the limitation to 2 out of 30 lots might seem quite restrictive, but the rapporteur public proposed an asymmetrical review, i.e., the review is limited with regard to the implementation of the restriction, while the decision to restrict (the principle, therefore) must be subject to a normal review.
