DIRECTORY OF JURISPRUDENCE II
LexInter | October 13, 2007 | 0 Comments

DIRECTORY OF JURISPRUDENCE II

FRENCH REPUBLIC 
IN THE NAME OF THE FRENCH PEOPLE
Seen 1 °], under number 81 131, the request registered on August 12, 1986 at the Litigation Secretariat of the Council of State, presented for the Société TV6, a public limited company whose head office is 133 avenue des Champs Elysées in Paris [75008 ], and tending for the annulment of decree n ° 86-901 of July 30, 1986 relating to the termination of the concession agreement concluded with the said company for the operation of the 6th television channel;

Seen, 2 °] under number 82 432, the summary request and the additional memorandum, registered on October 2, 1986 and November 17, 1986 at the Litigation Secretariat of the Council of State, presented for the company SCORPIO-MUSIC, a limited company of which the registered office is 5 rue Clément-Marot in Paris [75008] and tending to the annulment of the aforementioned decree n ° 86-901 of July 30, 1986;

Seen, 3 °] under number 82 437, the summary request and the additional memorandum, registered on November 17, 1986 at the Litigation Secretariat of the Council of State, presented for the Société anonyme ARENA, whose registered office is 57 rue du Faubourg Montmartre in Paris [75009] and tending for the annulment of the aforementioned decree n ° 86-901 of July 30, 1986;

Seen, 4 °] under number 82 443, the request, registered at the Litigation Secretariat of the Council of State on October 20, 1986, presented for the company PATHE-MARCONI-EMI, a public limited company whose registered office is 62 rue de Sèvres in Boulogne-Billancourt [92102] and tending for the annulment of the aforementioned decree n ° 86-901 of July 30, 1986;

Having regard to the other documents in the files;

Considering Articles 34 and 37 of the Constitution;

Considering the law n ° 79-587 of July 11, 1979;

Considering law n ° 82-652 of July 29, 1982 amended by laws n ° 83-632 of July 12, 1983, n ° 84-742 of August 1, 1984 and n ° 85-1317 of December 13, 1985;

Considering the decree n ° 86-20 of January 7, 1986 taken for the application of article 79 of the law n ° 82-652 of July 29, 1982;

Considering the decree n ° 86-234 of February 21, 1986 approving the concession treaty and the specifications of the 6th channel;

Having regard to the code of administrative courts;

Considering the ordinance of July 31, 1945 and the decree of September 30, 1953;

Considering the law of December 30, 1977;

After hearing:

– the report of Mrs Lenoir, Master of requests,

– the observations of Me Rouvière, lawyer for Société TV6, SCP Martin Martinière, Ricard, lawyer for Scorpio-Music, SCP Labbé, Delaporte, lawyer for Aréna and Me Barbey, lawyer for the company Pathé-Marconi-Emi,

– the conclusions of Mr. Fornacciari, Government Commissioner;
Considering that the requests presented by the Company TV6 and by the companies Scorpio-Music, Aréna and Pathé-Marconi-Emi are directed against the same decree; that it is necessary to join them to rule by a single decision;

On the competence of the Council of State in first instance:

Considering that it follows from the second paragraph of article 2 bis added to the decree of September 30, 1953, by the decree of December 27, 1960, that, when the Council of State is seized of a request containing conclusions falling within its competence as a first and last resort, he is also competent, notwithstanding any contrary provisions of article 2 of the said decree, to hear a request related to the preceding one and normally coming under the jurisdiction of first instance of an administrative tribunal;

Considering that the Council of State is competent, by virtue of article 2-1 ° of the aforementioned decree of September 30, 1953, to hear first and last resort requests presented by the Companies Scorpio-Music, Aréna and Pathé-Marconi -Emi, tending to the annulment for excess of power of decree n ° 86-901 of July 30, 1986 relating to the termination of the concession treaty concluded between the State and the TV6 Company with a view to the exploitation of the television service by channel terrestrial called “6th channel”; that if the request lodged by the TV6 concessionaire company tending to the annulment of the same decree falls in first instance within the competence of the administrative court of Paris, judge of the concession contract, in the jurisdiction of which the seat public authority signatory of the said contract, there exists between this request and the requests presented by the Companies Scorpio-Music, Aréna and Pathé-Marconi-Emi, a connection link within the meaning of the aforementioned provisions of the decree of September 30, 1953; that thus the Council of State is competent, in first instance, to know the four requests referred to above directed against the decree of July 30, 1986;

On the objections of inadmissibility raised by the Minister of Culture and Communication to the requests presented by the Companies Scorpio-Music, Aréna and Pathé-Marconi-Emi:
Considering, on the one hand, that the companies Scorpio-Music, Aréna and Pathé-Marconi-Emi, not being parties to the concession contract concluded between the State and the TV6 Company, cannot ask the contract judge to rule on the termination thereof; that on the other hand, contrary to what the Minister of Culture and Communication maintains, the decision to terminate the contract, contained in the contested decree, a decision which is detachable from contractual relations, can be referred by third parties to the judge of excess of power;

Considering, on the other hand, that the Pathé-Marconi-Emi Company which, like the two other companies, has music publishing and phonographic production as an activity, has an interest in contesting the legality of the decree on the termination of the concession treaty relating to to the operation of a television channel with a predominantly musical theme, which has the effect of eliminating a public television service helping to ensure the sale of its production, even though the contract which binds it to the concessionaire TV6 expires February 28, 1987, the same day the termination takes effect; that thus the Minister of Culture and Communication does not

On the legality of the contested decree:

Without it being necessary to examine the other means of the requests:
Whereas it follows from the explanatory memorandum of the contested decree that, in order to terminate the concession treaty for the 6th television channel, the government relied on the modifications to the legal regime for terrestrial television services provided for by a bill and on the changes that would result from the implementation of the principles set out by this bill with regard to the consistency and functioning of television services, in particular due to the planned privatization of one of the television channels in the sector public and new rules concerning the distribution of cinematographic works and their interruption by advertising messages;

Considering that, while it is for the granting authority, by virtue of the general rules applicable to administrative contracts and subject to the concessionaire’s rights of indemnification, to terminate a concession contract before its term, it cannot thus unilaterally break its commitments only for reasons of general interest justifying, at the date on which it takes its decision, that the operation of the licensed service must be abandoned or established on new bases; that in this case, the government relied on the existence of a reform project for audiovisual communication, the outcome, content and consequences of which could not be held for some before the promulgation of the law ; that, consequently, such a reason could not legally justify a decision of termination, even though under the terms of Article 1 of the contested decree, it must not take effect until the expiration of a following period the establishment of one of the institutions whose creation is provided for in the bill; that

DECIDES:
Article 1: Decree n ° 86-901 of July 30, 1986 is canceled.
Article 2: This decision will be notified to the TV6 Company, to the Scorpio-Music, Aréna and Pathé-Marconi-Emi companies, to the Prime Minister, to the Minister of Culture and Communication, to the Minister of State in charge of economy, finance and privatization, to the Minister of Industry, P&T and Tourism and to the Minister Delegate to the Minister of Industry, P&T and Tourism, in charge of P. and T.

 



Title : 17-05-01-03-02 JURISDICTION – JURISDICTION WITHIN THE ADMINISTRATIVE JURISDICTION – JURISDICTION IN FIRST JURISDICTION OF ADMINISTRATIVE COURTS – RELATED – EXISTENCE OF A RELATED LINK – Related requests, at least one of which arises within the competence of the Council of State – Connectivity between the appeal for excess of power brought by third parties against the decree terminating a concession contract and the full litigation appeal brought by the concessionaire against the same decree.

39-04-05-02 CONTRACTS AND ADMINISTRATIVE CONTRACTS – END OF CONTRACTS – END OF CONCESSIONS – TERMINATION – Possibility of termination at the initiative of the grantor not expressly provided for in the contract, except in the case of termination at the fault of the concessionaire – Termination possible by under the general rules applicable to administrative contracts.

39-04-05-02-04 PROCUREMENT AND ADMINISTRATIVE CONTRACTS – END OF CONTRACTS – END OF CONCESSIONS – TERMINATION – PROCEDURE – Termination of the contract for the concession of a television service – [1] Admissibility of the recourse for excess of power brought by third parties against the decision to terminate the contract. [2] Interest in bringing a third party against the decision to terminate the contract.

39-04-05-02-03 MARKETS AND ADMINISTRATIVE CONTRACTS – END OF CONTRACTS – END OF CONCESSIONS – TERMINATION – REASONS – Government based on a bill modifying the audiovisual communication regime, the outcome of which was not not sure.

39-08-01-05, RJ1 MARKETS AND ADMINISTRATIVE CONTRACTS – SPECIAL LITIGATION RULES – ADMISSIBILITY – REMEDIES FOR EXCESS OF POWER – Admissibility of the recourse for excess of power brought by third parties against the decision to terminate a concession contract [1 ].

54-01-01-01-04, RJ1 PROCEDURE – INSTITUTION OF PROCEEDINGS – DECISIONS WHICH MAY OR NOT BE THE SUBJECT OF AN APPEAL – ACTS CONSTITUTING DECISIONS SUBJECT TO APPEAL – ACTS DETACHABLE FROM AN OPERATION SUBJECT TO FULL LITIGATION -Decision to terminate a concession contract [1].

54-01-04-02-01 PROCEDURE – INTRODUCTION OF PROCEEDING – INTEREST IN ACTING – EXISTENCE OF AN INTEREST – INTEREST LINKED TO A PARTICULAR QUALITY – Sound and television broadcasting – Termination of a service concession agreement television audience – Editor and producer of programs contractually bound to the concessionaire.

54-02-01-02, RJ1 PROCEDURE – VARIOUS KINDS OF APPEAL – APPEAL FOR EXCESS OF POWER – CONDITIONS OF ADMISSIBILITY – Admissibility of the appeal for excess of power in contractual matters – Existence – Appeal by a third party against the decision to terminate a concession contract [1].

56-04-03-01 SOUND BROADCASTING AND TELEVISION – PRIVATE SOUND BROADCASTING AND TELEVISION SERVICES – TELEVISION SERVICES – LICENSED SERVICES – Concession of the 6th television channel – Termination of the concession by decree n ° 86-901 of 30 July 1986 – Legitimate reason capable of justifying termination – Absence – Government based on a bill modifying the audiovisual communication regime, the outcome of which was not certain.

Summary :17-05-01-03-02 The Council of State is competent, by virtue of article 2-1 ° of the decree of September 30, 1953, to hear first and last resort requests presented by third parties and tending to the annulment for excess of power of the decree of July 30, 1986 relating to the termination of the concession treaty concluded between the State and the company TV 6 with a view to the exploitation of a television service by hertzian way called “6th channel”. If the request lodged by the concessionaire company TV 6 tending to the annulment of the same decree falls in first instance within the competence of the administrative court of Paris, judge of the concession contract, in the jurisdiction of which the public authority signing the said contract,

39-04-05-02-04 [1], 39-08-01-05, 54-01-01-01-04, 54-02-01-02 The companies S., A. and P. n ‘ being not parties to the concession contract concluded between the State and the company TV 6 for the exploitation of the terrestrial television service called “6th channel”, cannot ask the judge of the contract to rule on the termination of that -this. On the other hand, the decision to terminate the contract, contained in the decree of July 30, 1986 relating to the termination of the concession treaty, a decision which is detachable from contractual relations, may be referred by third parties to the judge of excess of power.

39-04-05-02-04 [2], 54-01-04-02-01 The company P., which has music publishing and phonographic production as an activity, has an interest in contesting the legality of the decree terminating the treaty concession relating to the operation of a television channel with a predominantly musical theme, which has the effect of eliminating a public television service contributing to ensuring the sale of its production, even though the contract that binds it to the company dealership expires on the same day the termination takes effect.

39-04-05-02-03, 56-04-03-01 To terminate the concession treaty for the 6th television channel, the government relied on the changes to the legal regime for terrestrial television services provided for by a bill and on the changes which would result from the implementation of the principles laid down by this project with regard to the consistency and functioning of television services, in particular due to the envisaged privatization of one of the television channels of the public sector and new rules concerning the distribution of cinematographic works and their interruption by advertising messages. However, if it belongs to the licensing authority, general interest justifying, at the date on which it takes its decision, that the operation of the licensed service must be abandoned or established on new bases. In this case, the government relied on the existence of a reform project for audiovisual communication, the outcome, content and consequences of which could not be held for some before the promulgation of the law. Consequently, such a reason could not legally justify a decision to terminate the concession.

39-04-05-02 The granting authority may terminate a concession before its expiry, for reasons of general interest and subject to compensation from the concessionaire, then even [sol. impl.] that this possibility is not expressly provided for in the contract.

Case law precedents: 1. Rappr., Concerning a refusal to terminate an agreement: Section, 1964-04-24, Société LIC, p. 239

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