- CE, Ass., 6 février 1998, p. 30 Case Tête et Association de sauvegarde de lOuest Lyonnais
- 06 February 1998
- Translated by:
- Professor John Bell FBA
- Professor B. S. Markesinis
Considering that the request n° 138777 of M. Tête challenging the deliberation of the council of the urban community of Lyon of 18 July 1991 and the decision of the president of this community on 19 July 1991, and the requests n° 147424 of M. Tête and n° 147425 of the Association de sauvegarde de l’Ouest lyonnais challenging the Decree of 23 February 1993, presenting common questions to be judged; as it is appropriate to join them in order to determine them in a single decision;….
On the arguments directed against the deliberation of the council of the urban community of Lyon on 18 July 1991 and the decision of its president to sign the concession contract on 19 July 1991:
Without it being necessary to examine the other grounds of the request n° 138777
Considering that, in a deliberation on 18 July 1991, the council of the urban community of Lyon decided to carry out a work called the “Lyon ring road – northern section” having approved the terms which would ensure that the costs of its operation and maintenance are met, as well as to agree the provisions of the contract of concession and the agreement between the concessionaire and the urban community, to fix the tariff of charges and the way they would be applied, and to authorise the president to continue the formalities;
Considering that, by reason of art. 12 of the Directive 71305 CEE of 26 July 1971 of the Council of ht European Communities, amended by the Directive 89440 CEE of 18 July 1989 on the co-ordination of procedures for making public works contracts, the awarding authorities should make know by way of an opinion indicating the essential features of the contract which they intend to make if the price is equal or greater than a certain threshold; as under the terms of art. 1 of the Directive: “When the awarding authorities agree to make a works contract, the rules for publicity set out in art. 12 §§ 3,6,7 and 9 to 13, as well as art. 15b shall apply to this contract if its value is equal or greater that 5 million ecus”; as under the Directive of 18 July 1989, the Member States should implement the necessary measures to comply with the requirements of the said Directive at the latest one year after the date on which it was notified on 29 July 1989;
Considering that the concessionaire company cannot rely on the transitional provisions of art. 6-I of Title I of the decree of 31 March 1992, resulting from the Decree of 21 February 1994 which do not apply to contracts before it came into force;
Considering that the national rules applicable on the date of the challenged deliberation to the making of concession contracts for public works did not provide for publicity measures and were not compatible with the objectives of the Directive of 18 July 1989; as they cannot, therefore, provide the legal basis for the challenged deliberation was adopted unlawfully in that it was taken without the urban community of Lyon having publicised its intention to make such a concession contract as required by the objectives of the Directive of 18 July 1989;
Considering that it follows from what has been said that M. Tête is justified in claiming that the tribunal administratif of Lyon unlawfully rejected his request directed against the deliberation of 18 July 1991 of the urban community of Lyon and the decision of its president to sign the concession contract on 19 July 1991 based on this deliberation;
[The other grounds of the decision are not reproduced]
Art. 1 The judgment of the tribunal administratif of Lyon of 16 April 1992 is annulled in so far as it rejected the request of M. Tête for the annulment of the abovementioned deliberation of 18 July 1991 of the council of the urban community of Lyon and of the abovementioned decision of its president to sign the contract of concession on 19 July 1991.
Art. 2. The abovementioned deliberation of 18 July 1991 of the council of the urban community of Lyon and of the abovementioned decision of its president to sign the contract of concession on 19 July 1991 are annulled.