Decision n. 471048, 22nd March 2024, Council of State, Association Bon Sens, A, France
Article(s) in Directive 2014/24/EU: Art. 39
Topic: Cross-border framework agreement; Jurisdictional competence
Member State: FR
Court/rev. board: Council of State
1. IMPLEMENTATION / RELEVANT NATIONAL LEGISLATION
No relevant national legislation since it concerns a framework agreement between the European Commission and Member States.
2. FACTS
The context was the purchase of vaccines against Covid-19, for which the European Commission acted as centralizing body under a mandate from the member States. It concluded a framework agreement, leaving it to the national organizations to sign the purchase orders corresponding to their needs.
As a result of the framework agreement, Santé publique France had purchased vaccines from Pfizer and bioNtech. The Association Bon Sens asked the Tribunal administratif of Paris to annul the “vaccine supplier non liability clause” contained in this “purchase order“, which stemmed from the framework contract signed by the Commission, and in the alternative, to annul the purchase order.
3. JUDGMENT
The first-degree jurisdiction and then the Administrative Court of Appeal rejected the request on the grounds that the French courts did not have jurisdiction. This solution is confirmed here by Conseil d’Etat:
« As a result of this agreement, the participating Member States have decided that each framework contract negotiated by the European Commission on their behalf with a vaccine manufacturer will include stipulations clarifying the law applicable to both the framework contract and the resulting “purchase orders”. They have also agreed that each framework contract will include the same applicable law for all participating Member States, and that the courts of the applicable law will have jurisdiction to hear any disputes arising from the framework contract.
[…] It follows from the terms of the stipulations of this framework contract that it is governed by the laws of Belgium and that any dispute relating to the framework contract itself or to any “order form” arising therefrom is subject to the exclusive jurisdiction of the courts located in Brussels, Belgium.
[…] the contract is entirely subject to Belgian law and to the exclusive jurisdiction of the courts located in Brussels, Belgium. Consequently, the administrative courts do not have jurisdiction to hear the applicant association’s action challenging its validity. »
In reaching this conclusion, the Conseil d’Etat took the view that “it follows from the combination of the provisions and stipulations mentioned in points 2 to 5 that the contractual package in dispute is entirely subject to Belgian law and to the exclusive jurisdiction of the courts located in Brussels, Belgium“. For the Administrative Court of Appeal, on the other hand:
“It follows from the case law of the Court of Justice of the European Union that disputes between a public authority and a person governed by private law may fall within the scope of Regulation (EU) no. 1215/2012 of December 12, 2012, provided that the public authority is not acting in the exercise of its public authority. In signing this purchase order, which does not include any clause in its favor that is exorbitant under ordinary law, the French State did not act “in the exercise of official authority” within the meaning of the case law of the Court of Justice. Consequently, the present dispute, which relates to an order form for vaccines, falls within the scope of civil and commercial matters within the meaning of this regulation.”
As can be seen, the basis is totally different, with the Conseil d’Etat making no mention whatsoever of the Regulation of 12th December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It is true that its rapporteur public justified the non-application of this regulation on two grounds: it could not be set up against third parties, and, furthermore, the prerogatives of contracting public bodies under French rules regarding administrative contracts could be seen as characteristics of administrative matters.
However, the rapporteur public did not fully agree on this point – id est, on the need to specify why this regulation did not apply – as on others, even though he concluded that the administrative courts did not have jurisdiction. It proposed to recall the principles of the Tegos case law (CE 19th November 1999, Tegos, no. 183648), which, going against a long tradition of giving precedence to the administrative nature of a contract over its internationality, recognized the jurisdiction of the administrative courts even in the presence of a strong foreign element. The Tegos ruling thus established the principle that “the French administrative court does not have jurisdiction to hear a dispute arising from the performance of a contract which is in no way governed by French law“, thus making jurisdictional competence and the substance of the law coincide. Ruling on a public employee contract, this solution has been extended to public procurement, positively for a contract governed entirely by foreign law and performed abroad (CE 4th July 2008, Société Colas Djibouti, no. 316028), negatively for a contract performed abroad but governed by French law (CE 29th June 2012, Société Pro 2C, no. 357976).
It proposed reaffirming this principle while providing clarifications, for example by excluding the Tegos jurisprudence for a contract partially governed by French law.
The Conseil d’Etat preferred to stick to a very “European Union law” approach: the lack of jurisdiction of the French courts results from Regulation (EU) no. 2016/369 of 15th March, 2016 on the provision of emergency aid within the Union, amended on 14th April, 2020 to take account of the Covid-19 pandemic, and the agreement signed between the member states and the European Commission giving it a mandate, the framework contract signed on 20th November, 2020 and the “order form” signed by Santé publique France on December 8, 2020. For the Conseil d’Etat, the combination of these provisions and stipulations meant that “the contractual package in dispute is entirely subject to Belgian law and to the exclusive jurisdiction of the courts located in Brussels, Belgium. Consequently, the administrative judge does not have jurisdiction to hear the applicant association’s appeal challenging its validity“.
A further argument can be added: to rule otherwise could have led to divergent interpretations by national courts.
Two related comments are in order here. The reference to a “contractual package” echoes case law from another context, without any real legal issue at stake other than to exclude the qualification of public contract, preferring instead that of “agreements on objectives and means accompanied by subsidies” (CE 24th March 2022, Commune de Toulouse, no. 449826). The comparison referred to by the public rapporteur is therefore not entirely relevant since a framework agreement was not at issue. On the contrary, in the case of framework agreements, case law generally tends to view them as acts that are linked, but with a certain degree of autonomy.
This is where the second comment comes in: both the rapporteur public and the Conseil d’Etat, which is careful to place the expression “purchase order” in quotation marks, do not really consider it as such. The explanation for this, according to the rapporteur public, is that “the term used here may be questionable, because if the ‘purchase order’ were a simple measure for executing the framework contract, it would render inadmissible, as your case law stands, the conclusions directed against the said purchase order (cf. CE 25th October 2013, Région Languedoc-Roussillon, no. 369806)“. However, a reading of this ruling shows that it is the suspension of the execution of the purchase order that is an act of performance which a party may not seek to cancel, and not the purchase order itself. Similarly, the explanation given by the public rapporteur that the said “purchase order” is in fact a “specific contract” within the meaning of the financial regulation of 18th July, 2018 applicable to its award should not be misleading: the Financial Regulation in question, which governs the Commission’s award of public contracts based on the public procurement directives, defines a framework contract as “a public contract concluded between one or more economic operators and one or more contracting authorities for the purpose of establishing the conditions governing the specific contracts resulting therefrom which may be awarded during a given period, in particular as regards prices and, where appropriate, the quantities envisaged“. There is no reason why a “purchase order“, which sets out all the terms of the future order except its date, should not fall into this category, so the quotation marks were not necessary.
Link to the original decision: https://www.legifrance.gouv.fr/ceta/id/CETATEXT000049314861?init=true&page=1&query=471048&searchField=ALL&tab_selection=all?code=1506&article=30631
