LexInter | May 9, 2018 | 0 Comments


Court of conflicts
on litigation
N ° 00706
Published in the Lebon Recueil

M. Pichat, Rapporteur
M. Matter, Government Commissioner
Reading of January 22, 1921


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;
On the regularity of the decree of conflict: Considering that if the lieutenant-governor of the Ivory Coast has, by a telegram of October 2, 1920, without observing the formalities provided for by the ordinance of June 1, 1828, declared raising the conflict, it took, on October 13, 1920, a decree satisfying the requirements of article 9 of the said ordinance; that this decree was filed with the registry within the legal time limit; that thus the court of conflicts is regularly seized;
On jurisdiction: Considering that by exploit of September 30, 1920, the West African Commercial Company, basing itself on the damage which would have been caused to it by an accident which occurred at the Eloka ferry, assigned the colony of the Côte- d’Ivoire before the president of the civil court of Grand-Bassam, in summary hearing, at the end of the appointment of an expert to examine this bac;
Considering, on the one hand, that the Eloka ferry does not constitute a public work; on the other hand, that by carrying out, for remuneration, the operations of passage of pedestrians and cars from one bank to the other of the lagoon, the colony of the Ivory Coast operates a transport service in the same conditions as an ordinary industrialist; that, consequently, in the absence of a special text conferring jurisdiction on the administrative jurisdiction, it is only for the judicial authority to know the damaging consequences of the accident invoked, whether it had for cause, according to the claims of the West African Society, a fault committed in the operation or poor maintenance of the tank. That, – if therefore it is wrong that in view of the declinatory sent by the lieutenant-governor, the president of the tribunal did not limit himself to ruling on the declinatory, but, by the same ordinance, appointed an expert contrary in articles 7 and 8 of the ordinance of June 1, 1828, – it is with good reason that he retained knowledge of the dispute; 

DECIDES: Article 1: The decree of conflict referred to above, taken by the lieutenant-governor of the Ivory Coast, on October 13, 1920, together the aforementioned telegram from the lieutenant-governor n ° 36 GP, of October 2 1920, are canceled.
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).

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