Public and Administrative Law

  • Conseil d’Etat (Council of State), 25 November 2015, petition n°383482: The Highest Administrative Court held that, even if no statute or regulation provided for posting by ARCEP[1] on its web page of the decisions by which this authority grants a digital resource, the posting on its web page of such decisions, for the professionals of the industry which this authority regulates, starts the time period for criticizing the decisions.
  • Council of State, 7 December 2015, petition n°383856: The Highest Administrative Court clarified the conditions for administrative oversight, approving a labor agreement relating to a job-protection plan. This oversight will relate to the procedure for consulting employee representatives, the procedure for negotiation, and the terms of the agreement.
  • Administrative Court of Appeal of Bordeaux, 17 December 2015, petition n°13BX03486: The Administrative Court held that a government buyer may not avoid the rules laid down in the Code des marchés publics (Government Procurement Code) by relying on signature and performance of an agreement abroad.
  • Council of State, 7 December 2015, petition n°375643: The Highest Administrative Court held that a contract by which the owner of a “dépendance publique” (dependency) attached to the public domain grants management of such dependency to a third party—in the instant case, under a long-term lease subject to Article L.1311-2 of the Code général des collectivités territoriales (Local Government Code) applicable prior to the Law dated 14 March 2011—is not enforceable against the public body to which the property has been leased to provide a public service, unless the public body has agreed to it.
  • Council of State, 23 December 2015, petition n°376018: The Highest Administrative Court held that the estoppel doctrine does not apply to disputes or litigation about legality. It held admissible the argument—even if raised for the first time on appeal—based on the illegality of recourse to arbitration without the defendant being able effectively to assert the “principle of good faith” between the parties to oppose it.
  • Tribunal des conflits (Court for resolving issues of jurisdiction between the administrative and civil courts) 1 February 2016, petition n°C4038: The Court held that the administrative courts had sole jurisdiction to decide the legality of a decision relating to conduct of the government service itself and not the internal organization of the company responsible for managing it.
  • Notice of the Ministère de l’écologie (Ministry for Ecology) dated 13 January 2016: The purpose of this document is to clarify the legal status of what is produced by a facility whose raw materials have, in whole or in part, the status of waste products.
  • Decree-Law (“Ordonnance”) n°2016-65 dated 29 January 2016 and Decree n°2016-86 dated 1 February 2016:These documents reformulate the law applicable to concession agreements. The Decree-Law ends the traditional duality of the legal treatment of concessions for public works and delegations of public service which were subject to Decree-Law n°2009-864, dated 15 July 2009 and the Loi Sapin (Sapin Act), dated 29 January 1993, respectively. The Decree-Law dated 29 January 2016 refers not only to public works concessions, but also to service concessions. It provides expressly for exclusion from its scope of cases of “quasi-régie” (better known as “exception in house”) and henceforth makes mandatory the annual production, by the concession-holder, of an information report. Finally, the Decree-Law requires that, by 1 October 2018, the granting authorities make available, “in an open and freely re-usable form”, the information essential to the concession contract (purpose, term, name of concession-holder, etc.), except for information that relates to trade or industrial secrets or whose disclosure would be contrary to the public interest.
  • Council of State, 5 February 2016, petition n°383149: The Highest Administrative Court held that the conditions for challenging an agreement as set forth in the “Tarn-et-Garonne” decision (4 April 2004, petition n°358994) applied only to contracts made from and after publication of such decision. For contracts before that date, the appeal will be decided on the basis of the rules resulting from the “Tropic” decision and the “Société Gouelle” opinion (Council of State dated 11 April 2012, n°355446) making it possible, among other things, for any petitioner in whose interest it might be to enter into a contract to raise any argument in support of its claim against it.
  • Cour de cassation,[2] Criminal Chamber, 17 February 2016, petition n°15-85,363: The Cour de cassation held that the offense of favoritism also applies to public contracts subject to Decree-Law (“Ordonnance”) n°2005-649, dated 6 June 2005.
  • Council of State, 26 February 2016, petition n°384424: The Highest Administrative Court held that if, during performance of a contract for public services and because of technological advances that have occurred, the goods become useless, the granting governmental authority must expressly give up use of such property, unless it is indemnified for its value.
  • Council of State, 26 February 2016, petition n°383935: The Highest Administrative Court held that, as a result of the principles relating to the public domain, a private law contractual easement or encumbrance granted before the effective date of the Code général de la propriété des personnes publiques (Code governing ownership of property by public authorities or entities) may continue to apply to a parcel of land belonging to the public domain on the dual condition that it have been granted prior to incorporation of such parcel into the public domain, when such incorporation is also prior to the effectiveness of the Code, and be consistent with its use.    

Energy

  • European Commission, 13 November 2015, Decision n°C (2015) 7805 final: The European Commission analyzed, under the European regulations on state aid, the French mechanism on capabilities introduced by the so-called “Nome”[3]law of 7 December 2010 and requested that France supply any and all useful information on this subject. This decision should be viewed in light of the binding referral by the Council of State on 9 October 2015 on the same subject (petition n°369417).
  • Council of State, 2 December 2015, petition n°384204: The Highest Administrative Court held that the installations and works “fondés en titre[4] are subject to the provisions of the Code de l'environnement (Environment Code) that define the system for policing water and, in particular, those that establish the conditions on which the authorization may be rescinded or amended without indemnification.
  • Administrative Court of Rennes, 17 December 2015, petition n°1301372: The Administrative Court held that the Minister responsible for energy was not bound by the classification of bids made by the Commission de régulation de l’énergie (CRE—Energy Regulatory Commission) in connection with “Offshore” bid tenders in 2011. It concluded that the Minister could accept a bid that had not been classified first in connection with the procedure for bid tenders on the ground that risks of completion of projects in France should be adequately shared.
  • Autorité de la concurrence (Competition Commission), Evaluation Report, dated 18 December 2015, on the ARENH:[5] This independent administrative authority took the position that, if the continuity of the ARENH system was to be assured, “an enquiry needed to be conducted on the possibility of facilitating access to base-load electricity generating facilities, mostly nuclear, on a permanent basis, because only real sharing of the benefit of such facilities would make possible effective upstream competition”.[6]
  • Decision, dated 22 December 2015: This document sets forth, among other things, the general technical terms and conditions of the interruptibility scheme.
  • Council of State, 30 December 2015, petition n°376826: The Administrative Court partly cancelled the deliberation of the CRE[7] on 17 October 2013 involving a decision relating to the rules for sale and marketing of transmission and transportation capacity to the link between the North and South Zones of GRTgaz,[8] to the interface between GRTgaz and the TIGF (“Transport Infrastructures Gaz France”), and to interconnections with Spain, as long as it does not exclude the possibility for natural gas-intensive facilities to resell, in certain circumstances, excess capacity for transporting natural gas that they may have acquired.
  • Decree n°2015-1823, dated 30 December 2015: This Decree codifies the regulatory portion of the Code de l'énergie(Energy Code) and amends the provisions applicable to regulated rates for sale of electricity and the scheme for certificats d'économies d'énergie (energy savings certificates).
  • Decree n°2015-1825, dated 30 December 2015: This Decree defines the terms and conditions for sharing the obligations for energy savings imposed on certain suppliers for the third period of obligations (2015-2017). It also clarifies the terms and conditions for meeting the specific energy savings obligations for the benefit of households that are in a precarious situation as far as energy is concerned.
  • Administrative Court of Lyon, 31 December 2015, petition n°1300440: The Administrative Court held that “ERDF and EDF, under Articles L.111-52 and L.334-3 of the Energy Code, have an exclusive right to enter into concessions for electricity distribution and the supply thereof at regulated prices.[9] Articles 49, 56, and 106, §2 of the Treaty on the Functioning of the European Union and Article 24 of the Directive dated 13 July 2009 relating to common rules for the internal electricity market have no effect on the existence of such exclusive right.
  • Decree n°2016-9, dated 8 January 2016: This document establishes the dispute resolution mechanism applicable to various decisions relating to facilities for production of renewable energy at sea and the facilities relating thereto, to facilities for public electricity grids or networks at least a part of which is located at sea, and port infrastructure made necessary for construction, storage, and pre-assembly thereof.
  • Decree n°2016-23, dated 18 January 2016: This document sets forth the terms and conditions for calculating installed capacity of facilities for generating electricity using renewable energy. It should be borne in mind that facilities having an installed capacity equal to, or less than, certain thresholds are deemed approved.
  • Decree n°2016-43, dated 26 January 2016: This document sets forth the membership, modus operandi, and characteristics of the Comité de distribution publique d'électricité (Committee on public distribution of electricity) created by the law on energy transition. This Committee is responsible for reviewing the investment strategy of the company that manages public channels for sale and distribution of electricity and the organizing authorities for public sale and distribution of electricity set forth in Article L.322-1 of the Energy Code. It is to this Committee, in particular, that forecasted programs for all proposed investments envisaged for distribution channels are sent.
  • Administrative Court of Cergy-Pontoise, 28 January 2016, petition n°1200718: The Administrative Court held that, where the licensee of an exclusive permit to search for liquid hydrocarbon resources agrees not to use hydraulic fracking, the permit on which it relies may not be rescinded, unless the governmental authority can show that, in fact, such a technique was being used.
  • Decree n°2016-55, dated 29 January 2016: This document completes the transposition into French law of Directive 2009/119/EC, dated 14 September 2009 requiring Member States to maintain a minimum level of crude oil inventory and/or petroleum products. In particular, it amends the storage conditions for strategic petroleum reserves as well as the terms and conditions for setting the level of such obligation.
  • Constitutional Court, 2 February 2016, Decision n°2015-518 QPC: Article 323-4 3 of the Energy Code complies with the Constitution in that it authorizes concession holders of public electricity networks or grids to build structures and towers for high tension lines on private, unimproved real estate.
  • Decree n°2016-141 dated 11 February 2016: This document sets out the terms and conditions and rules for attributing reductions in rates for using the public network or grid for transporting electricity to companies or facilities consuming significant amounts of electricity that have a predictable and stable or counter-cyclical consumption profile.
  • Council of State, 17 February 2016, petition. n°383771: The Highest Administrative Court held that the decision by which the Minister for Ecology awards quotas for greenhouse gases for the entire period covered by the national plan for awarding quotas does not give rise to rights. On the other hand, the annual decisions issuing the quotas give rise to rights in favor of the operator.
  • Decree n°2016-170, dated 18 February 2016: This document amends the competitive bidding procedure for the purpose of meeting the multi-year programming of energy, on the one hand, by merging the ordinary and expedited procedures, and, on the other hand, by reducing the time period between the opening of the bidding process and choosing the winners.
  • Council of State, 22 February 2016, petition n°384821: The Highest Administrative Court held that the project company responsible for developing two combined cycle facilities operating with natural gas in Hambach had not provided sufficient proof of its financial and technical capacity (and not that of its parent company) to support development and operation of such facility classified for environmental protection purposes. It concluded that the decision authorizing operation was correctly cancelled by the Strasbourg Administrative Court.
  • Administrative Court of Appeal of Paris, 23 February 2016, petition n°12PA03983: The Administrative Court held that the amount of State aid taking the form of an obligation to purchase “green” electricity at a price greater than the market price does not depend, under applicable law and regulations, on the proceeds of the contribution to public service of electricity (“contribution au service public de l'électricité”—“CSPE”). For 2009, for example, the proceeds of the challenged contribution were not entirely offset by the amount of the State aid involved. Therefore, the proceeds of the CSPE do not directly influence the significance of the aid treated, which is granted within the limit of the expected receipts from such contribution. Without a binding link between the CSPE and the State aid involved, this contribution should not be treated as an integral part of such aid and, therefore, did not need to be notified to the European Commission.