PUBLIC DOMAIN
LexInter | August 25, 2012 | 0 Comments

PUBLIC DOMAIN

Having regard to the summary appeal and the additional brief, registered on 2 May and 27 July 2011 at the litigation secretariat of the Council of State, presented for the AUTONOMOUS PARISIAN TRANSPORTATION REGIE (RATP), whose head office is at 54, quai de la Rapée in Paris Cedex 12 (75599), represented by its CEO, who asks the Council of State:

1 °) to annul the judgment n ° 10PA05734 of April 14, 2011 by which the administrative court of appeal of Paris, after having, in article 1, admitted the intervention of the company Bolloré SA, a, by the ‘article 2, rejected his request tending, primarily, that the execution of judgment n ° 0808815-0808823-0808827 of November 5, 2010 be suspended by which the administrative court of Paris, after having annulled the decision of September 18, 2007 by the Chairman and CEO of RATP rejecting the offer presented by the company 20 Minutes France for the granting of precarious authorizations to occupy the public domain of the Régie allowing the distribution of free periodicals, the decision of 30 November 2007 of the Chairman and Chief Executive Officer of RATP to sign the agreement authorizing the company Bolloré SA to occupy the public domain of RATP and the implicit decision, born of the silence kept for two month by the CEO of RATP, rejecting the request presented by the company 20 Minutes France tending to put an end to the agreement of occupation of the public domain concluded on November 30, 2007, ordered the RATP, if it could not get Bolloré SA to accept the resolution of the public domain occupancy agreement, to refer the matter to the contract judge within the time limit ofone month from the notification of the judgment for the purpose of pronouncing the resolution of this agreement and, in the alternative, that it be ordered to stay the execution of the judgment in so far as it has ordered him to seize the judge of the contract and, by article 3, charged the payment to the company 20 Minutes France of a sum of 2000 euros under article L. 761-1 of the code of administrative justice; 761-1 of the code of administrative justice; 761-1 of the code of administrative justice;

2 °) settling the case under the procedure of suspension of execution, to grant its conclusions presented before the administrative court of appeal of Paris;

3) to charge the company 20 Minutes France for the payment of the sum of 5,000 euros under Article L. 761-1 of the Code of Administrative Justice;

Having regard to the other documents in the file;

Considering the note under advisement, recorded on May 9, 2012, presented for the company 20 Minutes France;

Considering the general code of the property of public persons;

Having regard to the commercial code;

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

Considering the code of administrative justice;

After hearing in public session:

– the report by Mr. Nicolas Polge, Master of Requests,

– the observations of the SCP Nicolaÿ, of Lanouvelle, Hannotin, lawyer of the AUTONOME DES TRANSPORTS PARISIENS, of the SCP Monod, Colin, lawyer of the company 20 Minutes France and of the SCP Barthélemy, Matuchansky, Vexliard, lawyer of the company Bollore SA,

– the conclusions of Mr. Nicolas Boulouis, public protractor;

The floor having been given again to SCP Nicolaÿ, de Lanouvelle, Hannotin, lawyer of the AUTONOME DES TRANSPORTS PARISIENS, to SCP Monod, Colin, lawyer of the company 20 Minutes France and to the SCP Barthélemy, Matuchansky, Vexliard, lawyer for Bollore SA;

Considering that under the terms of article R. 811-15 of the code of administrative justice: “When an appeal is made against a judgment of an administrative court pronouncing the annulment of an administrative decision, the court of appeal may , at the appellant’s request, order that the execution of this judgment be suspended if the means invoked by the appellant appear, in the state of the investigation, serious and capable of justifying, in addition to ‘annulment or reformation of the contested judgment, the rejection of the conclusions for annulment accepted by this judgment “;

Considering that the authority responsible for the management of the public domain may authorize a private person to occupy an outbuilding in this domain with a view to exercising an economic activity, on condition that this occupation is compatible with the allocation and conservation of this domain ; that the decision to issue or not such an authorization, which the administration is never required to grant, is not in itself liable to infringe the freedom of trade and industry, of which compliance implies, on the one hand, that public entities do not restrict production, distribution or service activities carried out by third parties which would not be justified by the general interest and proportionate to the objective pursued and, on the other hand, that they cannot themselves undertake an economic activity without justifying a public interest; that the public body cannot however legally issue such an authorization when its decision would have the effect of disregarding competition law, in particular by automatically placing the occupier in a situation of abusing a dominant position, contrary to the provisions of the Article L. 420-2 of the Commercial Code;

Considering that it emerges from the documents in the file submitted to the Administrative Court of Appeal of Paris that the AUTONOME DES TRANSPORTS PARISIENS (RATP) has decided to authorize companies to install displays on its public domain to distribute free newspapers. ; that, to annul the decisions by which the chairman and managing director of this establishment, at the end of the competitive process opened by the publication of a notice on September 11, 2006, rejected the offer presented for this purpose by the company 20 Minutes France, decided to conclude with the company Bolloré SA a contract authorizing it to occupy its public domain and rejected the request of the company 20 Minutes France tending that this contract be terminated. ,

Considering that by considering that the ground of appeal of the RATP, based on the absence of infringement of this freedom, did not appear serious, whereas to retain such an infringement, the first judges had relied, not on intervention by the public body in the market for the distribution of free newspapers, but on the effects that would result in the relations between press companies, which could only arise from a possible situation of abuse of a dominant position or breaches of other competition rules, the court erred in law; that consequently, and without it being necessary to examine the other means of the appeal, Articles 2 and 3 of its judgment must be annulled;

Considering that, in the circumstances of the case, it is necessary to settle the case, to this extent, under the suspension of execution proceedings initiated by the RATP;

Considering that under the terms of article 1 of the law of July 11, 1979: “(…) must be motivated decisions which (…) refuse an authorization (…)”; that the decision rejecting an offer presented for the conclusion of a convention occupancy of the public domain constitutes a refusal of authorization within the meaning of these provisions and must, consequently, be motivated; however, it emerges from the documents in the file that by its decision of September 18, 2007 rejecting the offer presented by the company 20 Minutes France, the RATP confines itself to indicating that after analysis of all the offers, its no ‘has not been selected; that the plea alleging insufficient reasoning for this decision therefore appears, in the state of the investigation,

Considering, on the other hand, that it follows from what has been said above that the plea alleging that the decisions annulled by the Paris Administrative Court did not, contrary to what he ruled, affect the freedom of commerce and industry must be regarded, in the state of the instruction, as serious; that if the company 20 Minutes France invoked, in support of its requests for cancellation, pleas alleging that the company Bolloré SA would be placed in a situation of necessarily abusing a dominant position, that the RATP itself abused its own dominant position, disregarding the principle of free competition, undermining press pluralism and the free circulation of the press,

Considering that it follows from the foregoing that the plea relied on by the RATP and based on the absence of interference with the freedom of trade and industry appears, in the state of the investigation, serious and in nature to justify, in addition to the annulment or reformation of the contested judgment, the rejection, on the one hand, of the conclusions for annulment accepted by this judgment, except in so far as they are directed against the decision of September 18, 2007 by which the Chairman and Chief Executive Officer of RATP rejected the offer presented by the company 20 Minutes France, and, on the other hand, conclusions tending that RATP be ordered to refer the matter to the contract judge so that ‘he pronounces the resolution;

Considering that the provisions of article L. 761-1 of the code of administrative justice preclude being charged to the RATP, which is not, in the present case, the losing party, the sum that asks the company 20 Minutes France for the costs incurred by it and not included in the costs; that it is necessary, on the other hand, in the circumstances of the case, to make this company responsible for the payment to the RATP of a sum of 4,500 euros for the costs incurred by it both before the court administrative appeal of Paris only before the Council of State;

DECIDES:
————–
Article 1: Articles 2 and 3 of the judgment of the administrative court of
Article 2: Execution of the judgment of the Paris administrative court of November 5, 2010 is suspended until the Paris administrative court of appeal has ruled on the appeal from the AUTONOME DES TRANSPORTS PARISIENS except as this judgment annuls the decision of September 18, 2007 rejecting the offer presented by the company 20 Minutes France.
Article 3: The company 20 Minutes France will pay to the AUTONOME DES TRANSPORTS PARISIENS a sum of 4,500 euros under article L. 761-1 of the administrative justice code.
Article 4: This decision will be notified to the AUTONOME DES TRANSPORTS PARISIENS, to the company 20 Minutes France and to the company Bolloré SA.

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