IN THIS ISSUE
French Agency for the Safety of Health Products (AFSSAPS)
Autorite de Controle Prudentiel (Prudential Supervisory Authority)
Conseil Supérieur de l’Audiovisuel – CSA (Audiovisuel Counsil)
Haute Autorité de la Santé (French High Authority of Healthcare)
Exclusion from Participating in a Bidding Process
Concession of a Public Service
Abnormally Low Offer
Award of a Public Contract to a Public Entity
Refusing to Use the Police Force to Carry Out Evictions
Statute of Limitations
ENVIRONMENT AND ZONING
Preliminary Public Investigation
Biens de retour (Returnable Assets)
Accessibility and Comprehensibility of Legislation
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French Agency for the Safety of Health Products (AFSSAPS) – Advisory Letters of this Agency can be challenged
AFSSAPS’s advisory letters giving recommendations for the use of medication to health care professionals shall be taken into account by physicians while prescribing medication. Thus, such recommendations might represent grounds for a complaint and may be challenged by pharmaceuticals companies before administrative courts.
Source: CE, Oct. 4, 2013, Société Les laboratoires Servier
Autorite de Controle Prudentiel (Prudential Supervisory Authority) – The Autorité’s refusal to exercise its supervisory powers can be challenged
The Autorité de contrôle prudentiel acts as an independent administrative agency to oversee the financial system and to maintain stability. It cannot refuse to exercise its supervisory powers when asked to do so. Thus, the Autorité is obliged to cooperate upon request and shall examine each requirement to enforce its supervisory powers. Refusal to act may be challenged before administrative courts.
Source: CE, Oct. 9, 2013, National Union for social security for government workers and teachers, of National Education
Conseil supérieur de l’audiovisuel - CSA (Audiovisual Council) – Communication of a Priority Preliminary Ruling on Constitutionality Related to the CSA’s Powers
The Conseil d’Etat referred a priority preliminary ruling on constitutionality to the Conseil Constitutionnel (the French Constitutional Court) on the September 30, 1986 law related to the power of the CSA to give notice to editors and providers of audiovisual communication services and satellite network operators to comply with their obligations.
The Conseil d’Etat noted that lack of separation between the functions of investigating and judging might lead to a breach of the constitutional principles of independence and impartiality raises a serious question as to the constitutionality of this law.
Source: CE, Oct. 7, 2013, Société Sud radio services
Haute Autorité de la Santé (French High Authority on Healthcare) – The Conseil d’Etat discussed the issue of conflicts of interest involving investigators and members of the Autorité and the need for transparency within the Autorité
A member of the Autorité cannot address issues he/she has worked in in his/her investigatory work for conflict of interest reasons. However, investigative work on a medicament for the treatment of blood pressure where the investigator served as a secondary investigator and then adjudicates whether this medicament must be covered by health insurance does not rise to the level of a conflict of interest.
Source : CE, Nov. 13, 2013, Société Novartis Pharma
Exclusion from Participating in a Bidding Process – Eligibility of a public entity to participate in a bidding process outside of its territorial jurisdiction
A public entity hoping to participate in a bidding process for the award of a public procurement contract outside its territorial jurisdiction must demonstrate a public interest for stepping into another geographical market.
By stating that the award of such a contract would help the entity to develop a new business activity, stabilize profits and investments in the area, and better utilize its personnel, the entity still does not demonstrate such a public interest.
Source : Adm. Tribunal Grenoble, Sept. 23, 2013, Société SAUR
Concession of Public Service – The duration of the contract is an essential element
The duration of a concession is an essential element of the contract. Thus, any modification of the contractual duration by an applicant is prohibited and must lead to the rejection of the applicant's candidature.
Source: Adm. Tribunal Lyon, Oct. 21, 2013, SA GDF Suez Energie services-Cofely
Bidding Process – The indemnity arising from a lost bid as a result of a faulty bidding process depends on the chances of obtaining the contract
An improper bidding process could result in liabilities for the breaching party. The damages will be determined based on the loss to the party who would have had an opportunity for business had the contract been performed. If a company had a real opportunity to win the bid, it is entitled to damages.
Source: Adm. Court of Appeal Lyon, Oct. 17, 2013, Communauté urbaine de Lyon
Scoring Procedure – The scoring procedure which results in awarding the contract to the applicant which tenders offers the highest price is vitiated
The scoring procedure chosen by the contracting authority cannot be challenged before the administrative judge except in cases of mistake of law or illegal discrimination.
In this specific case, the judge held that the scoring procedure resulting in assigning the highest score to the highest price would constitute unlawful discrimination of the applicant tender based on the lowest tender price.
Source: CE, Oct. 29, 2013, Office public d’habitat Val d’Oise Habitat
Abnormally Low Offer – Explanation requirement for the rejection of an abnormally low offer
The contracting authority that decides that one of the tenders appears to be abnormally low or insufficient must ask for the applicant to provide an explanation. If the bidder is notified of the reasons for rejection within due time, and if the bidder was given ample opportunity to contest the ruling, there is no violation.
Source: CE, Oct. 29, 2013, Department of Gard
Award of a Public Contract to a Public Entity – The judge may ask for further documents to ensure that competition among candidates has not been distorted
Such a request is allowed in order to ensure that a public entity submitting a bid in response to an open call for tender did not take any unfair advantage of resources granted with respect to its public service mission.
Source : Adm. Court of Appeal Bordeaux, Nov. 25 2013, Chambre de commerce et d’industrie de Bayonne-Pays basque et Grand port maritime de Bordeaux
Refusing to Use the Police Force to Carry Out Evictions – Details on the State’s liability
The injury suffered as a consequence of the public authority’s refusal to carry out evictions will be measured in damages based on the last possible accounting by the claimant at the date the claimant files the case.
Sources: CE, Oct. 7, 2013, Mr. and Mrs. A., n°351368 and CE, Nov. 6, 2013, Minister of the Interior
Statute of Limitations – Four-year Statute of Limitations in litigation concerning evolving damages claims
When bringing actions against the administration, damage claims’ statute of limitations periods are set at four years.
However, the total damages may be measured over time, as the damages continue to occur and evolve. This case involved a multi-media facility which caused a noise nuisance to a neighbor. The neighbor had a right to continued damages, evaluated each year the damages were incurred.
Source: CE, Nov. 6, 2013, Mme. A., n°354931
ENVIRONMENT AND ZONING
Precautionary Principle – A mayor cannot implement further requirements, based on the Precautionary principle, beyond what is required in legislation
The mayor is not allowed to invoke the precautionary principle to request for more documents than legally required regarding the construction of mobile phone relay antennas.
Source: CE, Oct. 21, 2013, Société Orange France
Preliminary Public Investigation – Scope of application
The order setting the rules applicable to installations classified for the protection of the environment shall be subject to a preliminary public investigation pursuant to the French Environmental Code.
Thus, the Court should rule in favor of the suspension of such an order if it has not been subject to this prior investigation.
Source: CE, Oct. 18, 2013, Association Centre national d’information indépendante sur les déchets et autres
Windmills – Municipalities do not have standing to challenge a refusal to issue a windmill construction permit
Municipalities have no standing to challenge a refusal by another public authority to issue a windmill construction permit to a company.
The Court held there was no direct or personal interest, either in the plaintiffs’ argument that they would miss out on an opportunity to collect further tax revenue or in the plaintiffs’ argument for the need to fight climate change, for granting the municipalities standing to file a case where a private company was denied the permit.
Source: Adm. Court of Appeal Douai, Oct. 24, 2013, Commune d’Iron et Communauté de communes de la région de Guise
Biens de retour (Returnable Assets) – Returnable assets are the property of the public entity from the time the assets are manufactured or purchased
The concessionaire is not subject to the property tax regarding properties that were constructed for a public purpose under a public contract (returnable assets). From the time they are manufactured or the time they are purchased, those properties are deemed to be returnable assets belonging in all situations to the public entity.
Source: CE, Oct. 21, 2013, Ministre du Budget
Accessibility and Comprehensibility of Legislation - The Conseil d’Etat cancelled a disposition of a decree which did not adhere to this principal
The Court has held that an argument based on a constitutional violation for failure of the law to be clear and understandable is acceptable.
In this case, the Decree in question referred to an inexistent provision of another regulation, thereby breaching the constitutional principle of legislation’s accessibility and comprehensibility.
Source: CE, Oct. 29, 2013, Association les amis de la rade des calanques et autres
Shale Oil – No urgency to suspend a refusal to transfer a license an oil and gas permit
The Conseil d’Etat ruled that the absence of objection of the Ministry to the notification of a transfer of rights according to article 43 of the 2 June 2006 Decree does not create a legitimate expectation for the applicant to actually obtain the transfer of the right to operate the permit pursuant to article 52 of the same Decree. By saying so, the Conseil d’Etat has taken a stance opposite to the first instance judges, who held that the refusal of the ministry to finally grant the transfer of the title placed the oil companies in a situation of legal uncertainty justifying a judicial injunction to grant the title.
Moreover, the Conseil d’Etat held that there is no urgency to grant the right to operate the permit as the applicant company owns 80 % of the rights arising from the permit. Thus, the refusal does not affect either investment already made in view of its partnership with the permit holder nor cause serious and immediate harm to its financial interests.
Source: CE, Nov. 28, 2013, Ministère de l'Ecologie c. Société Hess Oil France
15 January 2014
Roundtable in collaboration with the EU Comission on Minority Shareholdings, speakers: Jacques Buhart, Lionel Lesur and Andrea Hamilton, partners of McDermott.
Venue: McDermott Brussels (to register: firstname.lastname@example.org)
22 January 2014
Conference in collaboration with the Review Concurrences on the selective distribution. Venue: McDermott Paris (to register: email@example.com)
6-7 February 2014
IBA 2nd IBA European Corporate and Private M&A Conference, speakers: Antoine Vergnat and Jacques Buhart, partners of the Paris office. Venue: Maison du Barreau, Paris (to register: firstname.lastname@example.org)
11 February 2014
French M&A Executive Club 2014, speakers: Thibaud Forbin and Jacques Buhart, partners of the Paris office.
Venue: Le Meurice, Paris (to register: email@example.com)