Administrative Contract Mid Rev PDF

Administrative Contract >>Mid Rev >> Part 1 Administrative contracts a complex definition * one of the parties isa public person They are examined by the Administrative Court. * qualified by virtue of a specific 1) legal attribution 2) public service 3)...

Administrative Contract >>Mid Rev >> Part 1 Administrative contracts a complex definition * one of the parties isa public person They are examined by the Administrative Court. * qualified by virtue of a specific 1) legal attribution 2) public service 3) unusual clause The concept of the administrative contract, its elements, and its criteria 1) - The first requirement: The Concept * There is no agreed definition contracts as a public authority or one of the persons of the private law First: The concept 1) First definition: created by a public legal person + organizing a public utility + administration’s intention Adopt public law * administrative contract includes exceptional conditions + participate in managing the public utility + privileges - 2) Second definition: public administration represented by its corporate person or public official authority, * aims to run a public utility + public interest + means of of public law + not familiar with private law contracts.” Second: The judiciary’s definition The French State Council >> public legal person + provisions of public law + unfamiliar terms + participate directly in the management of the public utility The Egyptian State Council >>> a public legal person + managinga public utility + public law methods + unfamiliar conditions 1 Muhammed Mahmoud 01030629771  2) The second requirement: the Elements of the Administrative Contract First pillar: Acceptance the essence of the contractual bond + creating a legal effect + this will is expressed as something hidden and cannot be viewed. Second pillar: the place reciprocal rights + subject is present or possible + designation that is not ignorant and capable of assignment + permissible to deal with. Third pillar: causation prohibited or contrary to public order + preceding elements did not exhibit any defect its validity 3) The third requirement: the Criteria to Be Met in Administrative Contracts * a great difference among the jurists regarding the sufficiency of the first criterion 1) some of the jurists were satisfied with the first criterion a distinct condition 2) another opinion the other two other criteria must be available to give the administrative character * differed among themselves about the sufficiency of one of the other two criteria to be the condition or is it possible to be limited to one of them without the other 1) some of the jurists the adequacy of joining the contract with the public utility 2) another opinion the adequacy of the contract to include exceptional conditions 2 Muhammed Mahmoud 01030629771  First criterion: 1. the administration is a party to the contract * a person of public law, is not an administrative unless one of them public party such as governorates public legal person, but lost that capacity * ((The provisions of the Law attached hereto shall govern the organization of the contracts concluded by the public bodies * Its provisions shall apply the bodies included in the State Budget the exception of the social welfare funds established at them without prejudice to the provisions of the international conventions * contracts concluded by private parties not considered as Administrative but the question is where the private party the behalf of the Administration * The rules of Public law are designed to govern the activity of the Administration rather than the activity of individuals and private bodies * once it is established that the contract of the individual private for the administration's account interest acquires Administrative contract * no dispute that the two contracts running a public utility + followed the means of Public law >>>> the Administrative Court is only competent ____________________________________________________________________________ >> Part 1 2. Second Criterion: That the subject of the contract related to the administration of a facility: * most prominent elements + foundations on which the administrative law is based * Public facility >> government agency management of a common interest + the principle of quality of users) * Public utility > broad meaning to espouse Commercial, Industrial and investments * not every single contract concluded by the Administration * Supreme Administrative Court The lease between with some exceptional conditions not considered an Administrative contract not related to the activity of a public utility 3 Muhammed Mahmoud 01030629771  3. Third criterion: the administrative contract includes exceptional conditions * not familiar constitute the cornerstone of the nature administrative contracts * management to the authority such oversight - modifying - suspending - terminate contract * Unlike Private law contracts include exorbitant clauses >> the reason for that the parties are not in equal powers not included + preserve the fulfillment of public interests * It is not always easy to determine whether the contract adopt exorbitant clauses criteria such provide a privilege * the most important privileges is the direct execution, which reflects the power of the public authority. * Administration can impose different obligations without recourse to the court, unilaterally modify the contract- within certain limits -by issuing changing orders the administration has the authority to 1) supervise + direct execution of administrative 2) change terms of contract 3) add new terms which may be considered to be more compatible with the public interest without challenging the other party * the amendment does not amount to revoke the contract altogether, otherwise the other party has the right to revoke it as well * administration always has the power to terminate the contract * Administration to impose penalties as in case the other party filed to perform his contractual obligation * And moreover to terminate the contract without recourse to the Administrative court * no need for the contract to include several exorbitant clauses suffice include one exorbitant clause. >> that (the absolute right of the Administration to terminate the contract 4 Muhammed Mahmoud 01030629771 contract to be considered as an “administrative 1) One of the parties public authority. 2) The administrative judicial authorities 3) It must be related to a public service 4) It must include an “onerous” clause I) Certain contracts are administrative by law ‫العقىد إدارية بمىجب القانىن‬ * administrative by law > allowing a private entity to occupy the public domain allowing a café part of a sidewalk consider administrative contract * definition of administrative leads confusion final objective the law simply confirms what it may already be defined with regard to the final objective. * It is important to distinguish administrative & civil contract to determine judicial competence & applicable law. * The said distinction may be made by the law legal provision stipulates the reference to settle the subject of the decision the administrative judicial authority This is illustrated, for example, 1) competence to look into cases related to administrative contracts 2) the competence to look into a public works contract, 3) the competence to look into conflicts on municipality fees ____________________________________________________________________________ >> Part 3 II) Certain contracts are administrative according to the judge *, the judge may decide that a contract is administrative 1) public entity 2) ensure a public facility 3) clauses that are unusual * a public entity may contract with another public entity or private individual conditions indicating ordinary civil or commercial not an administrative one Such Tenancy or lease Legal consultancy In French administrative law, contract as an administrative one one regarding the contracting entity (a personal criteria) and one regarding the contract’s content (a material criteria). 5 Muhammed Mahmoud 01030629771  The personal criteria: * public entity. >> presumption of administrative quality be overturned if no relation with public interest * A contract between two private contracting parties is generally a private law contract, even if one of the private contracting parties is in charge of the execution of a public service. *, the administrative judge applied the criteria regarding a representation mandate, > on the basis that one of the parties acts for a public entity The material criteria: 1- The object of the contract a public service 2) The clauses or the regime clauses or general regime eliminate the traditional contract law the French jurisprudence- if it includes a clause or several clauses granting the administrative entity rights that are different in nature or substance such as for example: 1) The possibility to confiscate 2) Referring the clauses 3) Imposing a guarantee 4) Considering the contractor as having failed 5) Re-awarding the work to another person In some cases the public administration establishes the private law withdraws the relevant contracts The jurisprudence in France, Egypt and Lebanon considers a contract as administrative if its subject or object is the execution of a public facility such as the execution of public works 6 Muhammed Mahmoud 01030629771  Contracts with Highly Unusual (clause exorbitante) provisions/clauses(under the French Law): Definition based on the effect granting of rights + obligations foreign nature are freely agreed to generally civil & commercial Definition based on the content 1) authority to terminate the contract but not in case of non-performance of certain obligations 2) authority to direct, supervise or monitor 3) authority to directly deduct taxes But this is not the case if it is the administration that carries out such deduction on behalf of the said contracting party In conclusion, we note the following turnarounds: 1) exorbitant regime ‫النظام الباهظ \ شروط استثنائية‬ refuses to grant an administrative do not include highly unusual provisions 2) general procurement ‫عقىد االشتراء العامة‬ contracts is not sufficient to make them administrative contracts 3) Procurement Code ‫عقىد االشتراء العامة‬ have the nature of administrative contracts 4) Turnaround in the jurisprudence ‫االجتهاد القضائي‬ the contract to supply blocks consider an administrative contract 5) not subject to the General Procurement Code establishments of the State, remain subject to the common law unless they refer to the highly unusual clauses the contract is governed by rules from a legislative or regulatory regardless of the will * Administrative contract valid, the contracting parties must fulfill the same conditions stipulated in the Civil Law * a person who does not have the capacity or is not qualified to do so shall be considered invalid. Administrative contracts must be made in writing civil contracts are not subject to this condition. The same condition applies to tenders and auctions unless the law stipulates otherwise. 7 Muhammed Mahmoud 01030629771  III) The execution of administrative contracts The Administration naturally benefits from certain powers that are not applicable to non public contracting party These powers are: 1. The power of direction and control >> execution 2. The power to “edict” sanctions >> lateness 3. The power of unilateral termination >> sanction to be irregular + compensation 4. The power of unilateral modification >> grave fault + eventual compensation + termination may also take place without the occurrence of a fault. The public administration * In 1902 the administrative judge decided that the administration may change the lighting service from electricity to gas, thus forcing the contracting party to adapt * the public administration may control its execution & well bring modifications * but within specific limits only, as it may not bring amendments related financial conditions * or require unreasonable or unlimited amendments * it is not permissible to change the contract from a road construction contract to a bridge construction contract execute any additional obligation beyond what is stipulated in the contract >> indemnifies the contractor in a fair manner + judicial authorities have the right to order such indemnity. The rights of a contracting party 1. To receive the price agreed ‫السعر المتفق عليه‬ 2. To receive the indemnities ‫التعويضات المستحقة‬ 3. To take into consideration all incidental events ‫األحداث العرضية‬ 4. Spread the news ‫النشر‬ 8 Muhammed Mahmoud 01030629771