WEST AFRICAN COMMERCIAL COMPANY STOP
| Court of conflicts ruling on litigation N ° 00706 Published in the Lebon Recueil M. Pichat, Rapporteur Considering the decree, dated October 13, 1920, by which the lieutenant-governor of the colony of the Ivory Coast raised the conflict of attributions in the pending proceedings, before the summary judge of the civil court of Grand-Bassam, between the West African Commercial Company and the colony of Ivory Coast; Considering the ordinance of September 7, 1840, the decree of March 10, 1893, the decree of October 18, 1904; Considering the decrees of August 5 and September 7, 1881; Considering the laws of August 16-24, 1790 and Fructidor 16, year III; Considering the ordinance of June 1, 1828 and the law of May 24, 1872; Case law precedents: Cf. Assenmacher c / Colonie de la Côte-d’Ivoire, same day, n ° 707. Cf. Stractmann, 1894-07-28, TC, Recueil p. 530. Cf. Varin-Champagne, 1901-03-02, TC, Reports p. 254. Cf. Caillot, 1907-06-08, TC, Reports p. 539. Cf. Parant, 1890-12-13, Collection p. 961. Cf. Mohamed ben Belkassem, 1891-07-11, Reports p. 542. Cf. Menestrel, 1842-12-15, Collection p. 508 |
Analysis by the Council of State
By the West African Commercial Company decision, the Conflict Tribunal accepts the existence of public services operating under the same conditions as a private company and gives rise to the concept of industrial and commercial public service.
The West African trading company owned one of the cars that were severely damaged in the accident at the so-called Eloka ferry, a maritime liaison service located on the lagoon on the coast of Côte d’Ivoire and operated directly by the colony. For the purpose of determining the competent judge to appoint the expert whose appointment the company is seeking, the Conflict Tribunal was called upon to rule on the question of whether entire administration services can be regarded as operating in the same conditions than a private company, in which case the competent judge is the judicial judge.
It was already admitted that, for certain isolated operations, the administration could act as a private individual without using public authority prerogatives. Admitting it for a full service was trickier. The Conflict Tribunal however validated this innovation and thus gave birth, although the term was not used in its decision, to the concept of industrial and commercial public service.
This is how essentially administrative bodies, such as public authorities for example, can operate such services: this is the case of the State with regard to the service of coins and medals (CE, Bouvet, January 9, 1981, p. 4). Conversely, certain establishments to which the law or the decree instituting them attributed an industrial and commercial character may however exercise partially or totally administrative functions. This is the case, for example, of the National Forestry Office ( TC, June 9, 1986, Municipality of Kintzheim v / National Forestry Office, p. 448).
To identify an industrial and commercial public service, the judge, far from sticking to the sometimes misleading qualifications of the texts, unless they are at the legislative level, implements several criteria, the main ones of which are the object of the service. , the origin of the resources, the operating methods.
The qualification of industrial and commercial given by law or by the judge to a service entails in principle the competence of the judicial judge to settle disputes concerning it. But this jurisdiction is not general: in the area of liability first, since the administrative judge recognizes himself as competent to hear damage to public works caused to third parties as well as damage caused by industrial and commercial public services in the exercise of public power prerogatives; in the field of contracts then, since certain contracts relating to industrial and commercial public services, if the service is managed by a legal person governed by public law, may have the character of an administrative contract if the second criterion necessary for this qualification is satisfied, this second criterion being able to take several forms (contract for the execution of public works, contract for occupation of the public domain, exorbitant clauses of common law and finally contract entrusting the actual execution of the public service). Finally, with regard to personnel, disputes between them and the service always come under the jurisdiction of the judicial judge, with the exception of the director and the accountant, if he has the status of public accountant (Section, March 8, 1957, Jalenques de Labeau, p. 158). Finally, the administrative judge is competent to judge the legality of acts of general scope of industrial and commercial public services (TC, January 15, 1968, Compagnie Air France v / Epoux Barbier, p. 789).
