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The rules of publicity of the acts of the territorial authorities evolve on July 1st, 2022

As of July 1, 2022, dematerialization becomes the common law method of publicizing the acts of local authorities and their groupings.

The ordinance n°2021-1310 of October 7, 2021 and its application decree n°2021-1311 put an end to the obligation to ensure the posting or the publication on paper of regulatory acts and non-regulatory acts.

However, municipalities of less than 3,500 inhabitants, syndicates of municipalities and closed mixed syndicates may choose between posting, paper publication and electronic publication.

The acts published in electronic format must be made available to the public :

  • on the website of the community or grouping in their entirety ;
  • in an unmodifiable format;
  • in conditions that ensure their preservation, guarantee their integrity and allow them to be downloaded.
    In addition, the collection of administrative acts is abolished for all local authorities and their groupings, as well as the minutes of the meetings of the municipal council or the deliberative body of EPCIs with their own tax system, of the syndicates of communes and of the closed mixed syndicates. It is replaced by the posting of a list of the deliberations examined during the meeting.

For urban planning documents that come into force as of January 1, 2023, they must be published on the “national urban planning portal”. This dematerialized publication will become, along with the transmission to the prefect, the formality conferring the enforceability of the act.
Ordinance n°2021-1310 and decree n°2021-1311 of October 7, 2021 reforming the rules of publicity, entry into force and conservation of acts taken by local authorities and their groupings

Energy / Environment

Non referral of the priority question of constitutionality of the rule of distance of 500 meters between the wind turbines and the constructions with use of dwelling and the zones intended for the dwelling

In the context of an appeal against a decision rendered by the CAA of Nantes rejecting the petition against an authorization to operate a wind farm, the petitioners, including municipalities, raised a QPC concerning the insufficiency of the distance of 500 meters provided for in the last paragraph of article L. 515-44 of the Environmental Code. After indicating that the Constitutional Council had already ruled that this rule was in conformity with the Constitution, the Council of State considered that the developments invoked by the applicants, resulting from an evolution in the size and power of wind turbines, were not such as to characterize a change in the factual circumstances justifying that the Constitutional Council be seized again of the constitutionality of these provisions and refused to refer the QPC. The Council of State also refused to admit the appeal.
Council of State, 6th chamber, June 9, 2022, n°460644

Inadmissibility of a department to challenge an authorization to operate a wind farm

The department of Charente-Maritime requested the annulment of the order issuing an operating permit for the construction of a wind farm. The Court held that the department did not justify an interest in acting on the basis of its competences determined by article L. 3211-1 of the CGCT, nor on the basis of the general provisions of article L. 1111-2 of the CGCT or of its competence in terms of sensitive natural spaces. Above all, the Department cannot rely on the fact that the project would affect the convenience of its inhabitants, nor on the fact that it would have manifested itself against the development of wind energy on its territory and would have, as such, created an observatory and requested the imposition of a moratorium.
CAA Bordeaux, May 31, 2022, n°19BX04905

Legality of the order of June 22, 2020 modifying the general requirements for wind turbines

In its decision of May 16, 2022, the Council of State rejected the appeal lodged by the association Fédération Environnement Durable against the order modifying the general requirements relating to wind turbines issued from the order of August 26, 2011, considering in particular that:

i) The environmental monitoring over a complete biological cycle and adapted to the species that the installation is likely to affect, can begin after the commissioning of the installation without disregarding the principle of prevention;
ii) the dismantling obligation provided for by article L. 515-46 of the Environmental Code requires the dismantling of the wind turbines and the constructions linked to them, but it does not necessarily imply the complete excavation of their foundations, so that the provisions providing that the prefect may decide, on the basis of a study demonstrating the unfavourable nature of the environmental balance of a total excavation, to maintain the lower part of the foundations in the ground are validated;
iii) the determination of the amount of the financial guarantees is not vitiated by a manifest error of assessment since the amount of the fixed unit cost was determined by taking into account the actual costs of dismantling the first wind farms, and by taking into account the prospects of recovery of a large part of the construction materials of the wind turbines.
CE, May 16, 2022, n°446923

Public Contracts

The substitution of a member of a consortium during the performance of a contract constitutes a modification which must be subject to a call for competition, unless it falls within the exceptions of articles R. 2194-5 to R. 2194-7 of the Public Order Code

In a decision dated May 16, 2022, the Conseil d’Etat made two important clarifications concerning the modification of the composition of a grouping during the performance of a public contract:

  • on the one hand, the judge of the contractual summary procedure is competent to rule on the legality of the procedure for the award of an amendment having taken note, without a competitive procedure, of the composition of the grouping holding a contract;
  • on the other hand, the substitution, during the performance of a contract, of one of the members of the grouping constitutes a modification which can validly take place without competitive bidding only in the cases provided for by the provisions of article L. 2194-1 of the public order code. It is irrelevant that the representative of the grouping has not changed.

In this case, the change of one of the members of the grouping did not take place in application of a review clause or an option and did not occur as a result of a restructuring operation, so that the modification could not take place without advertising or competition.
Conseil d’Etat, 16 May 2022, Société hospitalière d’assurances mutuelles, n°459408

The rights of administration of social network pages have the character of property of return

The administration rights of the social network pages held by the delegatee constitute assets of return, when they are necessary for the functioning of the public service. In this case, they must be returned free of charge to the delegating authority at the end of the contract, without prejudice to any intellectual property rights relating to these media or to the content hosted by these pages.
Conseil d’Etat, 16 May 2022, Commune de Nîmes, n°459904

The search for savings constitutes a reason of general interest capable of justifying the termination of a contract

In a decision dated May 11, 2022, the Court of Cassation considered that the termination of a contract for the supply and installation of natural stone could be justified by the search for savings, which constitutes a reason of general interest.

In this case, a semi-public development company, the contracting authority, had decided to replace the natural stone paving stones provided for in the contract with a concrete covering, thereby minimizing the cost of the contract.
Cass. 3e civ., May 11, 2022, Sté Les Compagnons paveurs, n°21-12.291

Clarification of the circumstances in which e-mail exchanges between the mayor and elected municipal officials can be qualified as communicable administrative documents

In a decision of June 3, 2022, the Council of State clarified the notion of “communicable administrative documents” by considering that only correspondence issued or received, if necessary by e-mail, within the framework of the functions exercised on behalf of the municipality, by the mayor, his deputies or the members of the municipal council to whom the mayor has delegated part of his functions, have the character of administrative documents within the meaning of article L. 300-2 of the code of relations between the public and the administration.

However, this is not the case for correspondence from local elected officials, which cannot be considered as emanating from the municipality, since they express, in particular, personal positions or positions taken in the context of the free exercise of their elective mandate.
Council of State, June 3, 2022, n°452218

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