Decision n. 465913, 17th October 2023, Council of State, Commune de Viry-Châtillon and n. 469071, Syndicat intercommunal d’énergies du département de la Loire, classé B, France
Article(s) in Directive 2014/24/EU: Art. 71(3)
Topic: Subcontractor qualification and payment
Member State: FR
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
Art. L. 2193-11 of Code de la commande publique
2. FACTS
Both cases concerned public works contracts in which the contractor entrusted part of the work to another company.
In the first case (n.° 465913), the contractor and the maître d’ouvrage (project owner) agreed to reduce the sums paid to the other company performing part of the work. This company contested these reductions and requested direct payment by the maître d’ouvrage, but the contractor refused the request.
In the second case (n.° 469071), the subcontractor requested a direct payment from the maître d’ouvrage. Since the contractor rejected the request, the maître d’ouvrage also refused the direct payment.
3. JUDGMENT
The first case (n.° 465913) dealt with the criteria for qualifying as a subcontractor, aiming to analyze whether the product must have been designed and manufactured specifically for the needs of the contract and/or the specificity of the installation of that product.
Drawing on the case law of the Cour de Cassation in this area, the Conseil d’État considered that the specific nature of the design and manufacture of the product was sufficient: “(g)oods with specific features designed to meet the particular requirements of a given contract cannot be regarded, for the application of these provisions, as mere supplies”.
In the second case (n.° 469071), the question was whether the maître d’ouvrage had any discretionary power regarding the refusal of direct payment to the subcontractor by the contractor. French law clearly states that the subcontractor’s request for direct payment must first be sent to the contractor, who must then give his agreement (explicitly or implicitly if he remains silent for more than fifteen days from receipt), depending, for example, on the conformity of supporting documents sent by the subcontractor, before the maître d’ouvrage can proceed with direct payment. The law doesn’t however indicate whether the maître d’ouvrage has a power of assessment if the contractor refuses direct payment. The Conseil d’État clarified this point by rejecting such power of assessment : “(a)s the contractor had thus notified its reasoned refusal to accept the request for direct payment made by the company NGE Infranet within the period of fifteen days allotted to it, the SIEL Territoire d’énergie was, as a result, entitled, on this ground alone, which it had, moreover, raised with the company NGE Infranet in its letter of 24 May 2018 rejecting its request for direct payment, to refuse to make this payment”.
Link to the original decisions: n.° 465913: https://www.legifrance.gouv.fr/ceta/id/CETATEXT000048222713?juridiction=CONSEIL_ETAT&juridiction=COURS_APPEL&juridiction=TRIBUNAL_ADMINISTATIF&juridiction=TRIBUNAL_CONFLIT&page=1&pageSize=10&query=465913&searchField=ALL&searchType=ALL&sortValue=DATE_DESC&tab_selection=cetat ; n.° 469071: https://www.legifrance.gouv.fr/ceta/id/CETATEXT000048222718?juridiction=CONSEIL_ETAT&juridiction=COURS_APPEL&juridiction=TRIBUNAL_ADMINISTATIF&juridiction=TRIBUNAL_CONFLIT&page=1&pageSize=10&query=469071&searchField=ALL&searchType=ALL&sortValue=DATE_DESC&tab_selection=cetat
