Small municipalities facing the canvassing of renewable energy developers – case of putting into competition
The emergence of renewable energies and their encouragement by the State and the European Union give way, in this haste, to some forgetting of nevertheless elementary rules of public procurement law.
Whether it is a deliberate oversight for the sake of speed and simplicity or a real gap for some mayors, it does not matter, the law of public procurement remains.
As in many other areas, renewable energy developers have to deal with many municipalities and other public entities to install projects in the public domain.
This canvassing can have two aspects: the simple use of the public domain to install a project there or the sale of an installation to the public person. In each of the two cases, the rules of public procurement govern the subject of information to competitors.
1_Concerning the pure public procurement phase
A ruling by the Court of Justice of the European Union (ECJ 2000 Telaustria Verlags GmbH) came early on to establish the principles of public procurement, which are as follows: freedom of access to public procurement, equal treatment of candidates, transparency of procedures. This list of principles was confirmed by the Council of State a few years later (EC 2005 association for the transparency and morality of public procurement).
The French legislator then came to create an exception in order to facilitate small purchases. Thus, article R2122-8 of the French Public Procurement Code stipulates that “the purchaser may award a contract without prior advertising or competitive bidding for a requirement with an estimated value of less than €40,000 excluding tax”, or for the exception known as small lots.
Adopting a practice that goes against these rules is not without risk. Indeed, article 432-14 of the penal code, which provides for the offense of favoritism, punishes the fact of “providing or attempting to procure for another an unjustified advantage by an act contrary to the legislative or regulatory provisions intended to guarantee freedom of access and equality of candidates in public procurement and concession contracts”. Here, it is the public buyer who is sanctioned. However, a statute of limitations applies to this action.
In addition, the developer is exposed to cancellation or withdrawal of the authorization if the granting procedure is tainted by irregularity concerning the rules of competition. It may be exposed to this danger without any notion of time since “the time limits for appealing against an administrative decision are only enforceable on condition that they have been mentioned, as well as the means of appeal, in the notification of the decision” (article R421-5 code de justice administrative) and that the public person may unilaterally terminate an administrative contract tainted by an irregularity, “in the specific case of a contract tainted by an irregularity of such seriousness that, if it were seized, the contract judge could pronounce its cancellation or termination, the public person may, subject to the requirement of loyalty of contractual relations, unilaterally terminate the contract without it being necessary for it to first refer the matter to the judge” (CE 10/07/2010 Société comptoir négoce Équipement, n° 430864).
2_Concerning the phase of use of the public domain
Article L2122-1-4 of the General Code of Public Property requires the public person concerned, when issuing a title to occupy the public domain following a spontaneous expression of interest, to “ensure in advance, through sufficient publicity, the absence of any other competing expression of interest” (article L2122-1-4 code général de la propriété des personnes publiques).
However, very often, these titles are issued without any form of prior publicity.
This practice is risky because an appeal filed against a temporary authorization to occupy the public domain issued without publicity is always possible, without time limit (CE 21/06/1996 Aquamed, n° 136044, n° 137008), and may result in the cancellation of the title lacking a legal basis (TA Caen 18/09/2023, n° 2200112).
