18 January 2001

Conseil d’Etat

The Conseil d’Etat in dispute resolution; litigation section

Having seen the application filed the 16 January 2001 for Mr. Pierre Morbelli, acting both in the capacity of mayor of the Commune of Venelles and on his own behalf; he requests the Conseil d’Etat:

(1) to annul the order dated 4 January 2001 whereby the president of the first chamber of the Marseille Administrative Tribunal, acting in interlocutory proceedings under article L 521-1 of the Administrative Justice Code, enjoined him to call the town council to a meeting not later than 18 January 2001 with a view to resolving the issue of the nomination of communal delegates to the council of the Aix urban district council;

(2) to reject the claims advanced before the interlocutory proceedings judge of the Marseille Administrative Tribunal;

Having seen the other documents of record;

Having seen the Constitution, particularly article 72;

Having seen the Genral Code on territorial local authorities;

Having seen the Administrative Justice Code;

Having heard in open session:
- the report of Mr. Arrighi de Casanova, Applications Master.
- the observations of Maitre Choucroy, counsel for Mr. Pierre Morbelli
- the submissions of Mr. Touvet, Government Commissioner;

Considering that the first paragraph of article L 521-2 of the Administrative Justice Code provides as follows: ‘On a motion thereto justified by urgency, the interlocutory judge may order any measures necessary to safeguard any basic freedom threatened, by the exercise of the powers of any legal person of public law or private law entity assigned the management of a public service, with a serious and clearly unlawful infringement. The interlocutory judge shall rule thereon within forty-eight hours’;

that, according to article L 523-1 of the same Code: ‘Decisions handed down in application of article L521-1, L 521-3, L 521-4, and L 522-3 are final. Decisions handed down in application of article L521-2 may be appealed before the Conseil d’Etat within fifteen days of their notification. In such a case the president of the Conseil d’Etat litigation section or a counsellor authorised thereto shall decide the issue within forty-eight hours and may exercise, if need be, the powers provided for by article L 521-4’;

On the plea in bar put forward by the respondents:
Considering that it follows both from the very nature of the interlocutory proceedings covered by the above-cited provisions of the Administrative Justice Code, which can be commenced only in matters of urgency and can lead, under article L 511-1 of the same Code only to measures of a provisional nature, as also from the brevity of the time permitted to bring before the Conseil d’Etat any first instance order issued under these provisions, that the mayor, on behalf of the commune, can challenge such an order without having been authorized to do so by the town council; that consequently, even if Mr. Morbelli, mayor of Venelles commune (Bouches-du-Rhône) lacks capacity to appeal on his own behalf against the order whereby the interlocutory judge of the Marseille Administrative Tribunal enjoined him, under article L 521-2 of the Administrative Justice Code, to call the town council to a meeting not later than 18 January 2001 with a view to resolving the issue of the nomination of communal delegates to the council of the Aix urban district council, the mayor can on the other hand contest that order on behalf of the commune, even though the authorization granted him by the town council under heading 16 of article L 2122-22 of the General Local Authority Code had been withdrawn and the said council had not authorized him to bring the present proceedings; that hence the plea in bar of the application of the Venelles commune must be set aside;

On the merits:
Considering in the first place that, if the principle of the free administration of territorial units set out in article 72 of the Constitution is one of the basic freedoms to which the legislature has extended a special judicial protection, the Mayor of Venelles’ refusal to comply with the requests made to him to call the town council in order that it resolve the issue mentioned above, was prompted only by internal matters within the commune and cannot, therefore, be considered as infringing that principle; that it follows therefrom that the interlocutory judge of the Marseille Administrative Tribunal misunderstood the tenor of the above-cited provisions of article L 521-2 of the Administrative Justice Code in complying, on the basis of that text, with the requests made to him to enjoin the mayor to call the town council for that purpose;

Considering in the second place that, despite what was maintained by the claimants at first instance, the disputed refusal to call the meeting in no way infringes the town councillor’s freedom of expression, nor the right of expression of local democracy, any more than it infringes the right to vote and to representation;

Considering that it follows from the foregoing that the Venelles commune is entitled to call for annulment of the challenged order;

Considering that the present decision does not prevent the respondents, if they consider they have standing and grounds, from lodging with the Administrative Tribunal a challenge to the powers of the mayor to decide on refusal, and to file with that tribunal’s interlocutory judge submissions requesting him, under article L 521-1 of the Administrative Justice Code, to order the postponement of that decision, coupled with an indication of the consequent obligations incumbent on the mayor;

On the submissions on the application of article 761-1 of the Administrative Justice Code:

Considering that these provisions prevent the commune of Venelles, which is not the losing party in this case, being ordered to pay to Messrs Saez and others, Mr. Bariguian, and Messrs Bouillet and others, the amounts they claim as expenditure incurred and not covered by costs;

DECIDES:
Article 1: The above-cited Order of the president of the first chamber of the Marseille Administrative Tribunal dated 4 January 2001 is annulled.

Article 2: The requests put by Messrs Saez and others, Mr. Bariguian, and Messrs Bouillet and others to the interlocutory judge of the Marseille Administrative Tribunal are rejected.

Article 3: The submissions of Messrs Saez and others and by Messrs Bouillet and others under article L 8761-1 of the Administrative Justice Code are rejected.

Article 4: This decision will be notified to the Commune of Venelles, to Messrs Saez and others, Mr. Bariguian, and Messrs Bouillet and others, and to the Minister of the Interior.

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