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The Constitutional Council was seized, by more than sixty members, of an appeal against section 3 of the Guidance and Programming Act for Internal Security, adopted on 31 July 2002. This article contains three sets of provisions that are intended to amend some of the rules applicable to the construction of buildings for the services of the national justice, police and gendarmerie.
The appeal by the Government calls for the following comments:
I. - On Article 3 I
A. - The I of Article 3 of the Law allows the State to derogate from the provisions of articles 7 and 18 of Act No. 85-704 of 12 July 1985 relating to the mastery of public works and its relationship with the mastery of private works for the construction of buildings intended for the police and the national gendarmerie.
To challenge this provision, the authors of the appeal argue that it would ignore the principles of equality, transparency and free competition and would be contrary to the terms of Article 14 of the Declaration of Human and Citizen Rights because it would allow for the removal of certain rules of the public order intended, in their view, to guarantee free competition. They further argue that the disputed provision would be contrary to the principle of equality and the freedom to undertake in that it would, for the purpose of construction operations, deprive small and medium-sized enterprises of the possibility of becoming candidates.
B. - These grievances cannot be accepted.
1. The Government intends to emphasize, first of all, that the principles of transparency and free competition invoked by the complainants are constitutionally invalid.
These ideas, of course, inspire many aspects of public order law that result from regulatory, legislative and community provisions. But they are objectives that the legislator can assign when defining the rules applicable to public order (see, for example, Decision No. 92-316 DC of 20 January 1993), and not principles of constitutional value. They may, as recognized by the Constitutional Council, be reconciled with other objectives of general interest, such as the effectiveness of public order or other concerns, such as social considerations (Decision No. 2001-452 DC of 6 December 2001).
The law of public order is thus the result of choices made by the legislator and by the regulatory authority, in the sole respect of the constitutional principle of equality (Decision No. 2001-452 DC of 6 December 2001), and without the use of Article 14 of the Declaration of Human and Citizen Rights.
It is thus permissible for the legislator to amend or amend some of the provisions governing the public order that it had previously enacted, if it considers that such adjustments are appropriate and allow for a better balance between the various general interests that relate to this matter.
2. The disputed provision cannot, in the second place, be found to be contrary to the principle of equality or the principle of freedom to undertake.
In fact, it is not intended to exclude a class of companies from the possibility of presenting offers as part of the procedures that will be organized. By itself, it does not affect the principle of equality or the freedom to undertake.
If the appeal asserts that the provision in question would prevent small and medium-sized enterprises from accessing the corresponding public markets, it must be noted that this is not the object or effect of the criticized provision. On the contrary, it should be noted that it explicitly reserves the possibility for groupings of companies to be entrusted with the execution of markets. She also points out that the contracting is possible, even if it changes the way of judgment of offers. The intervention of corporate groupings gives the ability to bid to companies that could not compete alone. It may also be noted that small and medium-sized enterprises will be able to participate in the realization of the work considered by subcontracting.
In any case, it cannot be seriously argued that an infringement of the principle of equality would result from the fact that allotment would no longer be mandatory. In itself, allegiance - which is not excluded by the law referred to above - does not constitute a necessary condition to respect the principle of equality. As a general rule, it is only a simple faculty opened under section 10 of the Public Procurement Code. It can certainly be used, even if it is not its only justification, to facilitate access by small and medium-sized enterprises to certain markets. However, one cannot deduce that the removal of an obligation of allegiance is contrary to the constitutional principle of equality.
Since the device established by law is neither the object nor the effect of excluding small and medium-sized enterprises from the markets considered, the grievance derived from the violation of the principle of equality and the freedom to undertake can only be dismissed.
3. As a matter of fact, the adopted system is limited to making limited adjustments to the rules derived from the Act of 12 July 1985 on the Mastery of Public Works. It allows only to derogate from the provisions of section 7 of this Act, which provides that the master's task is distinct from that of the contractor, and section 18, which limits the cases in which design-realization markets can be used. Positive law is already derogated from these provisions (see, for example, article 18 of the Act of 12 July 1985 on the Mastery of Public Works or Act No. 87-432 of 22 June 1987 on the Public Service Penitentiary).
Contracts with companies or business groupings will be passed according to the procedures provided by the Public Procurement Code. The only derogation from the rules of public procurement results from the mention that, in the event of a laying down, bids on multiple lots may be subject to a global judgment, whereas under Article 10 of the Public Procurement Code bids are, in general, considered lot by lot. The intervention of such a global judgment does not jeopardize the allotment, but allows to appreciate the coherence and relevance of the offers in order to retain the best project.
Finally, contrary to what is supported, the device established by the disputed provision does not in any way correspond to a public works enterprise market. This particular category of administrative contracts, which resulted in rare contentious decisions of the Council of State (EC 11 December 1963, city of Colombes, Rec. p. 612; CE, sect., 26 November 1971, Municipal Industrial and Agricultural Company of Humic Fertilizers and SIMA Recovery, Rec. p. 723, concl. Gentot; CE 26 July 1985, Société lyonnaise des eaux et de l'clair, Rec. p. 246; EC 11 July 1986, Prefect of the Creuse, Rec. p. 611; CE 8 February 1999, Prefect of Bouches-du-Rhône c/commune de La Ciotat, AJDA 1999.364 concl. Bergeal, note Chabanol), entrusts the administrative contractor with the construction and operation of a public work, for compensation paid by the public community. These are public procurement and, in the past, some of these contracts have been censored by application of the rules of the public procurement code because they were planning a deferred payment mechanism.
In this case, the legislation criticized does not have the effect of entrusting the operation of the buildings built to the administrative contractor. These buildings will be operated by affective public services. Maintenance and maintenance missions that are likely to be entrusted to contractors cannot, in this regard, be considered as part of the operation of buildings.
In addition, any deferred payment mechanism is excluded and the law does not allow for the derogation of the provisions applicable to these contracts from section 94 of the Public Procurement Code. In the case of a single market, the design, construction and development will be subject to payments on investment credits, while the maintenance and maintenance services of the building will be subject to payments each year, depending on the clauses provided, on operating credits.
II. - On Article 3 II
A. - Part II of Article 3 of the Law adds two provisions to the State domain code. The purpose of paragraph II is to permit the construction of buildings for the services of justice, the national police and the national gendarmerie by means of a convention concluded with the holder of a public domain occupancy permit which, for the benefit of the State, allows him to acquire the facilities before the term fixed. 2° of the same paragraph authorizes the use of the lease for the construction of the same buildings.
According to the authors of the appeal, these provisions would ignore the obligations related to free competition and would be constitutive of a "abuse of procedure". They further argue that the prohibition of the use of leasing would be among the guarantees of the operation of public services and public property required by the Constitution and that the legislator would have remained below its jurisdiction by not determining itself the clauses that could preserve the requirements of public service.
B. The Constitutional Council cannot endorse this argument.
1. As previously stated, it is always lawful for legislators to develop, in accordance with the principle of equality between companies, the rules governing public order. In these circumstances, it cannot be argued that the provisions criticized constitute a "distraction of procedure", since they are intended to derogate validly from existing rules.
In any case, it may be pointed out that the passing of the conventions in question will be subject to competition. They will certainly not be subject to the public procurement code, because the category of real estate leases they fall within its scope. But the decree in the Council of State provided for in this article will clarify their conditions of procurement and guarantee transparency of the procedure and competition. In accordance with the common law of the public order of the State, such provisions fall within the competence of the regulatory authority.
2. It was found that the legislator, when amending the provisions relating to the public domain, must not deprive legal guarantees of the constitutional requirements resulting from the existence and continuity of public services to which it is affected (Decision No. 94-346 DC of 21 July 1994).
On this occasion, the Constitutional Council had noted that Article L. 34-7 of the Code of the State Area had excluded the ability to use the lease in respect of works assigned to a public service, to estimate, while taking into account several other elements, that the law which was then subject to it was not contrary to the Constitution.
But, more than the refusal that the State may resort to a particular type of contract for the construction of public works, this decision manifests that it is the responsibility of the legislator to guarantee the existence and continuity of public services. This is precisely what section 3, paragraph II, of the contested law has ensured, by requiring conventions to include clauses to ensure the requirements of the public service.
By imposing this condition barely equal to the contract, the legislator met the constitutional requirements. Each contract, under the specific circumstances of the transaction, will be required to include the necessary clauses for the continuity of the public service. These clauses will ensure that security rights established by the financing agencies on the buildings in question result in the State losing control of the works assigned to the public service. This will include the cancellation of the lease and the redemption of the building under conditions avoiding any breach of the service.
III. - On Article 3 III
A. - The third of section 3 of the Act amends the general code of the territorial authorities in order to allow these communities, for a limited period of time, on the one hand to use the formula of the emphytéotic lease on a property owned by them in order to carry out a real estate transaction related to the needs of the services of justice, the police or the gendarmerie, on the other hand, to acquire or renovate buildings intended for
The authors of the appeal argue that these provisions would ignore the principle of equality, in that they would imply that the essential conditions of public order would not be identical throughout the national territory.
B. - This argument can only be ruled out.
The provisions that the legislator enacts, of course, cannot lead to the fact that the essential conditions for the application of a law relating to the exercise of public freedoms depend on the decisions of the territorial authorities and, thus, may not be the same throughout the territory (decision 93-329 DC of 13 January 1994).
But, in this case, to assume that this idea is transposed to the essential conditions of public order, the mechanisms allowing territorial authorities to participate in the construction or renovation of buildings intended for the services of justice, police and national gendarmerie, which are inspired by existing mechanisms (e.g., article 18 of Act No. 90-587 of 4 July 1990 on the subject of the general public institutions)
The essential conditions for the maintenance of public order do not depend in any way on the choice of funding arrangements for the construction or renovation of the works necessary for the public services of the justice, the police and the national gendarmerie or the intervention of the local authorities. The possible participation of the territorial authorities in this work cannot thus affect the principle of equality.
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Ultimately, the Government considers that none of the means raised by the authors of the appeal is likely to justify the censorship of the provisions referred to in the Constitutional Council.
