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Environmental protection associations have no interest to act against a state occupation agreement, accessory to a wind power project

In a decision dated July 13, 2022, the Lyon Administrative Court of Appeal made a noteworthy application, in the wind power sector, of the assessment of the interest to act of third parties in the context of an appeal challenging the validity of administrative contracts opened by the Council of State in its “Tarn et Garonne” decision (CE Ass, April 4, 2014, No. 358994).

As a reminder, in the context of such an appeal, applicable to agreements for the occupation of the public domain by the École Centrale de Lyon decision, a third party to the agreement is only admissible to file an appeal against this agreement on the condition that it is “likely to be harmed in its interests in a sufficiently direct and certain manner by its conclusion or its clauses” (CE, December 2, 2015, École Centrale de Lyon, n° 386979).

In this case, the applicant association, whose purpose, according to its statutes, was to “safeguard, protect and defend the environment, natural spaces, natural heritage and landscapes” and “to fight against any wind farm project likely to harm the environment” sought the cancellation of a state occupation agreement whose purpose was to reinforce roads, bury networks and install overhanging wind turbine blades on two municipal roads.

The Court noted that this agreement had neither the purpose nor the effect of authorizing the construction and operation of the wind farm.

It then refused to recognize a direct link between the environmental or patrimonial interests that the applicant association had given itself the mission of defending, aiming however directly at the realization of wind projects, and the object of the contested convention, the Court noting the “foreign” character of the object of the convention with respect to the interests defended by the association.

Consequently, the Court rejected the request for the cancellation of the public domain occupation agreement as inadmissible.

CAA Lyon, July 13, 2022, Association À Vent Garde, n° 20LY00422

Energy / Environment

Wind power: a company can justify an interest to act against the rules of the PLU preventing the realization of a wind power project

Even though the realization of a wind farm is now exempted from a building permit, the authorization of these equipments “cannot disregard the town planning rules applicable to the land on which they are to be implanted”. Thus, a court cannot reject as inadmissible the appeal of a development company against a decision of the municipality rejecting its request to modify the PLU without having asked it to regularize its request. The company having produced in appeal the promises of emphyteutic lease concluded with the owners of parcels located on the territory of the municipality, the CAA annulled the decision of the TA and sent the case back.
CAA Bordeaux, 07/07/2022, 22BX00486

Exemption for protected species (DEP)

The Conseil d’Etat, seized of an appeal against the derogation from the prohibition on the destruction of protected species in the context of the Noirmoutiers offshore wind farm project, indicated that i) the DEP application does not have to contain an overall presentation of the project specifying all the necessary operations (connection + wind turbines) and the resulting potential impacts and ii) the question of whether the condition of maintaining a favorable conservation status of protected species is a matter for the sovereign appreciation of the judges of the court of first instance.
CE, July 29, 2022, n°443420

The draft law on the acceleration of renewable energies was submitted to the CNTE (National Council for Ecological Transition) and the Council of State on August 25, 2022

The text contains 20 articles and provides among other measures: simplification measures that will benefit only certain projects and for a limited period of 48 months (facilitate the compatibility of PLUi, accelerate the procedures of instruction …), priority acceleration measures for photovoltaic projects and offshore wind, other measures (recognize the RIIPM to renewable energy projects, simplification of connection procedures, open the possibility of combining a contract of additional remuneration and a PPA …)
The text should be presented to the Council of Ministers in mid-September and will be followed by a parliamentary debate in October.

Legislative and regulatory news

The decree n°2022-970 of July 1, 2022 raises the thresholds of the environmental assessment for photovoltaic installations for electricity production.

  • Exemption for installations on roofs, as well as those on shades located on parking lots
  • Systematic assessment for installations with a capacity of ≥ 1 MWp (except for shaded areas)
  • Case-by-case evaluation for installations with a power ≥ 300 kWp

Another decree should modify the urban planning code so that only installations with a power ≥ 1 MWp are subject to a building permit
Decree No. 2022-1165 of August 20, 2022, creating and organizing the General Inspectorate for the Environment and Sustainable Development.

This decree defines the organization and missions of the General Inspectorate of the Environment and Sustainable Development, which replaces the “General Council of the Environment and Sustainable Development” (CGEDD), and ensures the independence and impartiality of the work of the members of the general inspection service.

Public Contracts

Contracts entered into by an airport concessionaire are governed by private law, unless the concession can be qualified as an agency contract

In a decision of July 4, 2022, the Tribunal des conflits recalled that contracts entered into by a concessionaire are, in principle, governed by private law, except in exceptional cases.

The Tribunal des conflits recalls, first of all, that a legal person under private law, entrusted with the operation of an aerodrome and the provision of airport services under a concession contract concluded with the State, is not an agent of the State. This is only the case if it follows from the stipulations defining its mission or from a set of specific conditions provided for the execution thereof, that the concession must in fact be considered, in part or in whole, as an agency contract.

In this case, the Tribunal des conflits considered that none of these particular conditions were met and that, consequently, the contracts entered into by the concessionaire for the renovation of the airfield’s runway lighting are private law contracts and that disputes relating to them fall within the jurisdiction of the courts.
Tribunal des conflits, July 4, 2022, Allianz global corporate and Aéroport Toulouse Blagnac, n°C4247

The rules of the consultation provided for by a delegating authority are mandatory in all their terms, subject to two exceptions: irrelevance or material error

In a decision of July 20, 2022, the Conseil d’Etat reaffirmed, in the form of a recital of principle, the binding force of the rules of consultation relating to the award of a concession contract and the only two cases in which the conceding authority may disregard a failure to comply with these rules:
when the requirement of the rules of consultation “is clearly of no use for the examination of the applications or tenders” or “if the disregard of this requirement results from a purely material error of such a nature that no one could rely on it in good faith in the event that the candidate’s offer was accepted.

In this case, the Administrative Court of Appeal of Marseille had noted that if the draft contract submitted to the municipality by the candidate did not include his name or the amount of the fee he proposed, this could not be considered as an irregularity of such a nature as to exclude his candidacy since the identity of the candidate was apparent from the letter of presentation of the candidacy and the amount of the fee was set out in a separate form.

The Conseil d’Etat considered that neither of the two exceptions to the mandatory nature of the consultation regulations could be invoked in this case, considering that the missing information “was necessary for the delegating authority to ascertain the identity of the person with whom it would contract, and cannot, therefore, be regarded as having been manifestly unnecessary”, and that, moreover, “the omission in question cannot be regarded as a purely material error, since none of the information relating to the identity of the holder of the concession had been provided in the draft contract”.
CE, July 20, 2022, Commune du Lavandou, n° 458427

The non-renewal of a public contract is not a termination decision that can justify the resumption of contractual relations

The Conseil d’Etat has clarified its decision of March 21, 2011, known as “Béziers II” (no. 304806), in which it admitted, for the first time, that the administrative judge could order the parties to resume their contractual relations interrupted by a termination decision.

In this case, the applicant challenged the municipality’s refusal to renew the temporary occupancy agreement for the public port domain, allowing him to benefit from a berth.

The Conseil d’Etat considered that while the decision to terminate the contract may give rise to the resumption of contractual relations, this is not the case with the decision to refuse renewal, which is analyzed as a measure for the execution of the contract, likely to give rise only to a right to compensation:

“The contract judge may, in principle, when seized by a party of a dispute relating to a measure of performance of a contract, only investigate whether that measure occurred under conditions likely to give rise to a right to compensation. However, a party to an administrative contract may, in view of the scope of such a measure of execution, bring before the contract judge a full remedy challenging the validity of the termination of the contract and seeking the resumption of contractual relations. This exception relating to termination decisions does not extend to decisions by the public authority refusing to apply the provisions of the contract relating to its renewal. These are measures for the execution of the contract which have neither the object nor the effect of unilaterally terminating a current agreement.

Consequently, the Conseil d’Etat censured the decision of the Administrative Court of Appeal which had annulled the commune’s refusal to renew the agreement.
CE, July 13, 2022, Commune de Sanary-sur-Mer, n° 458488

Clarification of the notion of useful expenses in case of cancellation of a contract

In the specific context of anti-competitive practices that justified the cancellation of a contract for cartel, the Conseil d’Etat clarified the notion of useful expenses.

After recalling that “useful expenses include, to the exclusion of any profit margin, expenses directly incurred by the contracting party for the realization of supplies, works or services intended for the administration”, the Conseil d’Etat considers that only a share of the general expenses can be taken into account as useful expenses.

On the other hand, the following cannot be considered as useful expenses incurred for the execution of the contract
communication costs ;
financial costs incurred by the co-contractor in the context of a public contract, except in the case of a partnership contract.
CE, June 17, 2022, Société Lacroix City Saint-Herblain, n° 454189

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