Public and Administrative Law

  • Conseil d’Etat (Council of State) 9 March 2016, Sté Etudes techniques Ruiz, req. n°384175: The highest administrative court held that the obligation to reassign [employees] applicable to an employer that reduces its workforce is to be assessed in light of the steps taken to reassign the employee “in companies in which the organization, the activities, or the location, because of the relationship that exists with them, makes it possible to reassign all or part of its employees”.
  • Conseil d’Etat (Council of State) 21 March 2016, Société Fairversta international GmbH et autres, pet. n°368082 et 21 March 2016, Société NC Numéricable, pet. n°390023: The Council of State has held that “the opinions, recommendations, notices, warnings, and positions taken or issued by regulatory authorities in exercising the responsibilities that they are given, may [in certain circumstances] be referred to a court in charge of the review of the legality, when they have the characteristic of general and mandatory requirements, or when they contain individual requirements the unawareness of which such authorities might wish to penalize”. In this case, the Council of State was ruling on the legality of AMF communiqués.
  • Ordinance n°2016-354 dated 25 March 2016: In addition to a few changes made to the system for single authorization, the ordinance coordinates on one hand, the procedures for delivering the various permits covered in the Urbanization Code, and on the other hand, the authorizations relating to the water policy and to the prohibitions against harming protected species.
  • Conseil d’Etat (Council of State) 30 March 2016, Centre hospitalier de Perpignan, pet. n°375529: Subject to confidential information protected by law, all documents in a public contract, including the binding commitment, the total price of the offer, and the services proposed by the company winning the bid may theoretically be disclosable. However, the single price sheet of the company winning the bid is not.
  • Conseil d’Etat (Council of State) 16 March 2016, M. S…, pet. n°378675: Only persons who/that were parties on appeal may ask for a review in the Cour de Cassation. Nevertheless, if the decision handed down by the appeals court prejudices his/her/its rights, a person may challenge it. His/her/its action is then considered to be a third-party opposition and therefore remanded to the Court of Appeal.
  • Conseil d’Etat (Council of State) 30 March 2016, Sté Diversité TV France, pet. n°395702: The Council of State has held that earning gains realized on the sale of shares of a company holding an authorization allowing it to operate a service of audio-visual communication is not by itself such as to make the sale illegal. Nevertheless, the fact of applying for an authorization for the sole purpose of earning such capital gain without having acquired the necessary resources to operate the service in accordance with the commitments made during the process would be considered fraudulent.
  • Conseil d’Etat (Council of State) 4 April 2016, Communauté d’agglomération du centre de la Martinique, pet. n°696191: The Council of State has clarified the conditions under which a delegation of a public service may be granted without publication or competitive bidding. It is necessary, in particular, when the public entity is suddenly and unexpectedly unable to continue to make the service ensured by its co-contracting party or to ensure it itself. The duration of such delegation is then equal to, or less than, the period required for the publication and competitive bidding necessary to pursue the rendering of service.
  • Conseil d’Etat (Council of State) 6 April 2016, M.A et autres, pet. n°380570: The highest administrative court decided to provide a ‘conventionality’ review of an organic law where no provision of the Constitution would prevent it.
  • Tribunal des conflits 11 April 2016, Sté Fosmax LNG, pet. n°4043: The Tribunal des conflits has held that an administrative court has jurisdiction to rule on a review against an arbitral award involving a French public authority, when the review initiated by the court involves compliance of the award with mandatory rules of French law governing the use of the public domain and public order.
  • Conseil d’Etat (Council of State) 13 April 2016, Cne de Baillargues, pet. n°391431: The Council of State has held that the condition of the arrangement indispensable to the performance of a public service which must be met so that a good belongs to the public domain, is met where the arrangement is in process with certainty.
  • Conseil d’Etat (Council of State) 11 May 2016, Rouveyre, pet. n°383768 et 383769: The Council of State has cancelled—for lack of information related to the estimated cost of a contract—the deliberation taken on 24 October 2011 by the City Council of Bordeaux approving the terms of the draft partnering contract related to the new football stadium of Bordeaux. Moreover, the Court recognized the ancillary character of the partnering agreement to “the autonomous agreement” signed by the City of Bordeaux, holder of the partnering agreement and the banks and approved its validity in principle, where it did not actually provide for any special payment.
  • Conseil d’Etat (Council of State) 11 May 2016, Communauté urbaine Marseille-Provence-Métropole, pet. n°390118: A local governmental authority may grant rights in its public domain by signing an agreement that can be assimilated with a construction lease. Such an agreement, however, does not have the characteristics of a construction lease for purposes of Article L. 251-1 of the Construction and Housing Code.
  • Conseil d’Etat (Council of State) 11 May 2016, Association MBE Environnement, pet. n°384608: The Council of State confirmed that the lack of knowledge of an administrative contract, unless it includes regulatory clauses, may not be invoked to support a challenge for exceeding authority made against an administrative decision.
  • Administrative Court of Clermont-Ferrand 17 May 2016 M. C., pet. n°1402177: The Administrative Court decided that the budgetary issues of a municipality constitute sufficient ground of public interest to justify the unilateral termination of an occupation of a public domain agreement when the agreement relates to a property that must be declassified and sold.
  • Court of Justice of the European Union, 24 May 2016, MT Højgaard, Case C-396/14: The European Court of Justice held that a member of an economic interest grouping may separate itself from the grouping applying to receive a public contract for the construction of a new railway line, provided it is shown, first of all, that such economic operator satisfies by itself the requirements defined by the contracting entity and, on the other hand, that continuation of its involvement in such procedure would not cause deterioration of the competitive situation of the other applicants.
  • Tribunal of the European Union, 26 May 2016, IFP Energies Nouvelles v. European Commission, Case T-157/12: The European Union Tribunal has refused to recognize the probative value of a presumption, where the assumptions on which it is based are not plausible. In this case, the European Commission failed to show the real effects of granting an unlimited guarantee by the State to a public industrial and commercial undertaking.
  • Conseil d’Etat (Council of State) 30 May 2016, SCP Louis Lageat, pet. n°384114: The Council of State has held that, in connection with the oversight that it exercises on the content of a reorganization and employment protection plan, it is for the Court to appreciate the reassignment measures on the basis of the group’s resources.
  • Decree n°2016-807 dated 16 June 2016: The decree clarifies the conditions and limits under which regions are allowed to hold the share capital of companies for the implementation of the regional scheme for economic development, innovation, and internationalization.

Energy

  • Conseil d’Etat (Council of State) 9 March 2016, Association nationale des opérateurs détaillants en énergie, pet. n°375467: The Council of State held that the system of negotiable certificates of energy savings set forth in Articles L.221-1 to L.222-9 of the Energy Code does not constitute a state aid. Such certificates serve solely as proof evidencing the achievement of energy savings and at no time appear among the State’s assets. The state, therefore, has no possibility of selling them or subjecting them to competitive bids or auction. They do not constitute a resource that the State has given up.
  • Ordinance n°2016-411 dated 7 April 2016: This ordinance sets the conditions under which the tender procedure intended to develop the capacity of biogas production can be implemented.
  • Ordinance n°2016-461 dated 14 April 2016: The ordinance specifies the powers of the CRE (“Commission de régulation de l’énergie”—French energy regulatory authority) in the area of information gathering, of sanction, and of cooperation with other regulatory authorities.
  • Conseil d’Etat (Council of State), 15 April 2016, Association Vent de Colère !, pet. n°393721: The Council of State has specified the conditions on the basis of which the State must recover interests corresponding to a payment of an illegal State aid subsequently held to comply with Articles 107 et seq. of the Treaty of Rome.
  • Decrees n°2016-495 and 2016-496 dated 21 April 2016: These decrees specify the consistency and terms for presenting economic, commercial, industrial, financial, or technical information included in the annual Report of the Concession transmitted by distributors of natural gas and electricity.
  • Decree n°2016-530 dated 27 April 2016: The decree defines, among other things, the terms for reorganizing hydroelectric concessions, for the creation of mixed hydroelectric economy companies and the creation of oversight committees for concessions. Furthermore, it modernizes the model of concession specifications.
  • Ordinance n°2016-518 dated 28 April 2016: This ordinance amends Book V of the Energy Code to strengthen administrative oversight of hydroelectric facilities and to clarify various rules with a view to the pending renewal of several operating permits.
  • Decree n°2016-555 dated 6 May 2016: The purpose of the decree is to set forth the terms for implementing the energy voucher which is to be substituted for low income energy tariffs that will end on 31 December 2017.
  • Conseil d’Etat (Council of State), 11 May 2016, Cne de Douai, pet. n°37533: The Council of State has held that the assets made available concurrently for performance of several contracts for concession of a public service for energy distribution are assets belonging to the concession holder, where he/she/it is responsible for ensuring the consistency and coherence of his/her/its concessions and maintaining the fairness of the tariffs for using the public distribution network.
  • Conseil d’Etat (Council of State), 13 May 2016, ANODE, pet. n°384215: The unawareness of the disclosure obligation of the European Commission, provided in the area of obligations for universal service and public service imposed on companies in the electricity industry by the paragraph 15 of the Article 3 of the Directive 2009/72/EC dated 13 July 2009 is without effect on the legality of the document imposing such obligations.
  • Conseil d’Etat (Council of State), 13 May 2016, Direct Energie, pet. n°375501: The method for calculating capital charges used by the CRE (“Commission de régulation de l'énergie”—The French Energy Regulator) is legal in that, among other things, it includes the specific accounts of concessions and the provisions for renewing assets. Such a method does not exclude incorporation, in the “regulated asset base” of assets owned by the awarding authority and made available to the concession-holder, where such availability compensates and implies the obligation for the concession-holder to return such assets in a normal operating state at the end of the concession.
  • Conseil d’Etat (Council of State), 13 May 2016, Syndicat professionnel CATHODE, n°389872: The Council of State has held that the obligation applicable to historic suppliers to propose “EJP” and “Tempo” offers “may not have the effect of squeezing the activity of the operators when entering into a contract with an operator makes it possible for consumers to avoid, without action on his/her/its part, the payment for electricity at a very high price on peak demand day”.
  • Conseil d’Etat, 18 May 2016, Direct Energie, pet. n°386810: The highest administrative court denied the motion to cancel a decree providing to regulate sale rates for electricity provides and decides inter alia, that the level of regulated sales rates is not established to guarantee to shareholders of a supplier “a level of compensation of shareholders’ equity capital invested”.
  • Decree n°2016-682 dated 27 May 2016: This decree establishes the conditions, among other things, under which the installations or facilities generating electricity from renewable or recovery of mine gas or co-generation from natural gas may benefit from support in the form of additional compensation or of a feed-in tariff.
  • Decree n°2016-690, dated 28 May 2016: This decree sets forth the terms and conditions for assigning mandatory purchase contracts to third parties, as well as the conditions for obtaining approval by them.
  • Decree n°2016-687, dated 27 May 2016: This decree simplifies the formalities for obtaining the authorization to operate certain facilities for generating electricity.
  • Decree n°2016-704, dated 30 May 2016:This document establishes the terms and conditions for experimentation of local schemes having the purpose of modulating injected power and withdrawn power locally on facilities of the public system for distributing electricity.