Decision n. 464955, 13th October 2023, M. Carré et Collectif alétois de gestion publique de l’eau, classé B, France
Article(s) in Directive 2014/24/EU: Art. 18, 21, 22, and 29 - This case concerns concessions (Articles in Directive 2014/23/EU: Art. 3 (2), 28, 29, and 18), but this also applies to public procurement
Topic: Transparency, Confidentiality and Rules applicable to communication; Modification of the subject-matter of the concession during the negotiations; Control of the concession’s duration
Member State: FR
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. L. 3, L. 2132-1, L. 2132-2, and L. 3114-7 of Code de la commande publique
2. FACTS
A concession for water production and distribution had been concluded. Third parties sought the annulment of the contract, challenging its validity. They argued that the modifications made to the contract’s subject matter during the negotiations were contrary to procurement law, especially the principle of transparency, and that the duration of the contract was too short to recoup the investments made.
3. JUDGMENT
Two issues were raised in this case: the possibility of adapting the subject of the contract at the end of the negotiation process, and the judge’s control over the duration of the concession.
Regarding changes to the concession contract during negotiations, the Conseil d’État had to determine whether adaptations to the subject matter of the contract (after the consultation had been launched, but before the contract had been awarded) would result in a breach of the principles of freedom of access to public procurement, equal treatment of candidates and transparency of procedures. The Conseil d’État accepted the possibility of adapting the subject matter of the contract subject during negotiations to certain reservations: “when these adaptations are limited in scope, justified by the interests of the service and are not discriminatory between competing companies“.
Regarding the control of the concessions’ duration, established before awarding the contract, the Conseil d’État rejected the existence of a minimum period of time and affirmed that there is no prohibition “as a matter of principle that the duration of the agreement may be less than that of the recoup of the investments made“.
Link to the original decision: https://www.conseil-État.fr/fr/arianeweb/CE/decision/2023-10-13/464955
