FRANCE Trends and Developments Contributed by: Thierry Laloum, Jordan Pontal, Julie Sarny and Gabin Dupont-Guianvarch, Willkie Farr & Gallagher LLP
authorities have extraordinary contractual pow - ers, including the ability to unilaterally modify a contract for reasons of public interest, as long as they compensate the private contractor. This power is now codified in Article L. 6 of the Public Procurement Code, which no longer explicitly mentions the need for a public interest justification, although this condition still appears to be present in case law. In practice, administrative authorities sometimes misuse this power, deciding to modify their con - tracts without a legitimate public interest justi - fication. What was once an exceptional right (existing even without explicit mention in the contract and meant to be used with caution) is, through its contractualisation, now seen as a regular right benefiting to one of the contracting parties and accepted by the other, who then inevitably suf - fers from it. There was hope in 2011 when the Council of State allowed for a direct appeal against unilat - eral termination measures in the Béziers II case law: the so-called “appeal to restore contractual relations” . Some believed this could extend to other performance measures, especially unilat - eral modifications, as suggested by the observa - tions of the reporting judge on this case. However, under current law, the private contract - ing party still cannot request the annulment of such contract performance measures but can only claim for compensation before the admin - istrative court (Council of State, 15 November 2017, Société Les Fils de Madame Géraud, case No 402794). In other words, the private con - tracting party must obligatorily comply with the decision of the administrative authority, even if
the private contracting party considers it illegal. With the exception of termination measures, this observation can be extended to all other con - tractual powers of the administration (formal notice, service order, management control, etc). Thus, the performance of administrative con - tracts, including unilateral modifications by the administrative authority, remains a blind spot for judicial review. This gap could be filled by the establishment of the good faith principle, which would encour - age the judge to rule on the abusive or unfair exercise of administrative authorities’ contrac - tual powers. The goal would not be to change the extraordinary powers of the administrative authority but to ensure that they are applied properly. Good faith in the performance of obligations by private contracting parties In practice, administrative contracts are some - times adhesion contracts that place burdens and risks essentially on the private party. In these cases, we are convinced that these contracts could be better managed if the administra - tive authority were required to cooperate more closely. For example, administrative contracts, particu - larly those involving construction work, often place the sole responsibility on the private con - tracting party to obtain all necessary administra - tive authorisations for the project, even though the administrative authority is sometimes also responsible for granting those permits. Simi - larly, the responsibility and risks of controlling and modifying preliminary studies for the work are often placed on the private contracting party, even though those studies were originally pre - pared by the administrative authority.
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