Key Benefits:
The State Council,
On the report of the 7th subsection of the section of the Litigation,
Vu, registered on 30 July 2002 at the Dispute Secretariat of the Conseil d' Etat, the judgment of 5 July 2002 by which the administrative court of Melun, before deciding on the application of the interinstitutional union of the institutions The second cycle of the second degree of the Hay-les-Roses district for the registration of the transaction agreement which it decided to enter into with the company CDI 2000, decided, by application of the provisions of Article L. 113-1 of the Code of Justice To transmit the file of this application to the Council of State by submitting to its consideration the following questions:
1. If an administrative judge may act, approve or approve an agreement reached in the course of the proceedings In the form of a transaction between the parties for the purpose of compensation for damage, can it be seized for the same purposes, in respect of its adjudicative powers and by applying those of the rules of the ordinary procedure which are compatible With such a request, when no dispute is brought before it;
2 ° If the answer to the previous question is "yes", is the administrative judge competent to deal with transactions intended to terminate or To prevent disputes of an administrative nature or only transactions involving exorbitant provisions of common law or relating to contracts or damage to public works;
Given the other documents in the file;
Vu The Civil Code;
Given the Administrative Justice Code;
After hearing in a public session:
-the report by Mr. Chantepy, State Councillor;
-the conclusions of Mr. Le Chatelier, Commissioner of the Government,
Following:
I.-Pursuant to Article 2052 of the Civil Code, the transaction contract, by which the parties terminate a dispute arising or prevent an unborn protest, has between these parties the authority of the last resort. It is legally enforceable, without prejudice, in particular, to the rules of public accounting.
As a result, apart from cases where the dispute to which it is terminated was previously brought before the administrative judge,
admissibility of such an application for approval must, however, be accepted, in the general interest, where the application is not admissible. The conclusion of a transaction is intended to remedy a situation such as that created by a cancellation or the finding of illegality which cannot give rise to regularisation or where its execution is confronted with particular difficulties. This may be the case in public procurement and public service delegations.
II. -Where this condition is fulfilled-and provided that the transaction has as its object the settlement or prevention of disputes for the judgment of which the administrative court is competent-the judge verifies that the parties consent In fact to the transaction, that the purpose of this transaction is lawful, that it does not constitute a liberality on the part of the public community, and that it does not disregard other rules of public policy. If any of these conditions are not met, the non-approval results in the transaction being void.
III. -The application for approval may relate only to a contract concluded. Where such a contract is subject to the approval of the deliberative assembly of a territorial community or of one or more of the boards of a public institution, the judge may be seized only after that approval. Transaction contracts subject to the review of legality cannot be subject to an application for approval before being transmitted to the representative of the State. The application for approval shall not be subject to the procedures whose completion would be necessary before the court may have before it any finding in order to settle the dispute that the transaction prevents or extinguished
Rules of procedure which are not incompatible with such a request. Applicants are exempt from the Department of Counsel if they would have been required to seize the judge of an application for a determination of the dispute to which the transaction terminates or is intended to prevent.
To exercise the control that The judge directs an adversarial, written or oral hearing.
The application for approval shall be communicated to any person who has had the quality of a party in such an instance.
Where the contract of the transaction is to be addressed To the representative of the State for the exercise of the review of legality, the application for approval of that contract shall be communicated to him.
The judge may ask any person to make observations which may inform his decision. It may order the parties to the transaction to produce any element capable of supplementing its information and may refuse the approval on the sole ground that it does not have the necessary elements of assessment. It shall have all the means of investigation referred to in Title II of Book VI of the Administrative Justice Code.
The approval decision shall be subject to the relative authority of res judic.
This notice shall be notified to the court Administration of Melun, to the inter-communal union of the second-degree institutions of the second degree of the Hay-les-Roses district, to the company CDI 2000, to the Prefect of Val-de-Marne, to the Minister of the Interior, Internal Security and Freedoms The Ministry of Economy, Finance and Industry.
It will be published in the Official Journal of the French Republic.
