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Case:
Mr. Saez and others
Date:
05 March 2001
Translated by:
Professor Bernard Rudden
Copyright:
Professor B. S. Markesinis

5 March 2001

Conseil d’Etat

The Conseil d’Etat in dispute resolution
(litigation section, 3rd and 8th sub-sections sitting together)

Having seen the summary application and complementary particulars filed the 7th and 16th February 2001 with the litigation secretariat of the Conseil d’Etat on behalf of Mr.Jean-Pierre Saez, domiciled at La Turquette, Les Bigourdins, at Venelles (13770); Mr. Saez requests the Conseil d’Etat:

(1) to annul the order of 24 January 2001 whereby the president of the Marseille Administrative Tribunal rejected his application for suspension of the decision of the Mayor of Venelles dated 14 December 2000 refusing to call a meeting of the town council to resolve the issue of the renewal of the town’s delegates to sit on the Aix urban district council;

(2) to order the suspension of the mayor’s refusal and to enjoin him to call a meeting of the town council with an agenda covering the issue of the renewal of the town’s delegates to sit on the Aix urban district council, and to do so within 48 hours of receiving notice of the Conseil d’Etat’s judgment under a penalty of 10,000 francs for each day’s delay;Having seen the other documents of record;

Having seen the General Code on territorial local authorities, particularly its article L 2121-9;

Having seen the Administrative Justice Code;

Having heard in open session:
- the report of Mr. Jeanneny, Conseiller d’Etat,
- the observations of the firm of Messrs. Célice, Blancpain, Soltner, counsel for Mr. Saez, and of Maitre Choucroy, counsel for the Venelles commune;
- the submissions of Mr. Touvet, Government Commissioner;

Considering that on 14 December 2000 the mayor of Venelles refused to accede to the request, put forward by 10 of the 29 town councillors, to call a council meeting to resolve the issue of the renewal of the town’s delegates to sit on the Aix urban district council; that, in compliance with the injunction issued the 4 January 2001 by order of the interlocutory judge of the Marseille Administrative Tribunal, the mayor called the council to resolve the said issue on 18 January at 17h 30; that, however, having at the beginning of the session learned of that day’s decision of the Conseil d’Etat annulling the order of 4 January 2001, which was wrongly based on article L 521-2 of the Administrative Justice Code, the mayor terminated the session before the above-mentioned issue could be discussed;

Considering that, seised on 19 January 2001 with a fresh request to suspend the mayor’s refusal, this time based on article L 521-1 of the Administrative Justice Code, the interlocutory judge of the Marseille Administrative Tribunal, by an order dated 24 January 2001, rejected this request as inadmissible on the grounds that, having called a council meeting for the 18 January, the mayor had revoked his disputed decision of 14 December; but that it follows from the conditions in which the council meeting of 18 January took place, as recounted in the particulars furnished by the mayor to the interlocutory judge, that, at the time the order of 24 January was handed down, the disputed decision of 14 December could no longer be treated as having been revoked; that thus Mr. Saez is entitled to maintain that the order is vitiated by legal error and to request its annulment;

Considering that, under article L 821-2 of the Administrative Justice Code, the Conseil d’Etat when it annuls the decision of an administrative court of last resort, may ‘settle the matter on the merits if this is warranted in the interest of the good administration of justice’; that in the circumstances of this case it is appropriate to settle the matter under the interlocutory procedure currently in train;

Considering that the first paragraph of article L 521-1 of the Administrative Justice Code provides as follows: ‘Where an executive decision, even one rejecting an application, is the object of an application to annul or amend it, the interlocutory judge, seised of a request thereto, may order the suspension of enforcement of that decision or of some of its effects, where it is a matter of urgency and where some ground is shown at the investigatory stage which casts serious doubt on the lawfulness of the decision. . .’

Considering that the applicants filed with the Marseille Administrative Tribunal an application for the annulment of the decision of refusal dated 14 December 2000;

Considering on the one hand that, under article L 2121-9 of the General Code on territorial local authorities, in communes of 3500 inhabitants or more the mayor is bound to call a council meeting within thirty days of receipt of a reasoned request therefor put to him by at least a third of the members of the town council in office; that, so requested by ten town councillors, the mayor of Venelles refused to call a meeting of the town council to resolve the issue of the renewal of the town’s delegates to sit on the Aix urban district council; that, on the evidence available, the ground of application based on breach of the provisions of the above-cited article of the General Code on territorial local authorities is such as to cast serious doubt on the lawfulness of the mayor’s 14th December refusal to accede to that request;

Considering on the other hand that, to deny the existence of a state of urgency requiring him to comply with the request to have the council resolve the issue of the possible replacement of the commune’s delegates on the urban district council, the mayor merely maintained that the steps taken by the ten councillors who made the request were purely a matter of politics, and that there was no reason to think that the majority of the council would be likely to nominate new delegates, as empowered by article L 2121-33 of the General Code on territorial local authorities; that this argument does not suffice to justify the mayor’s failure to comply with the one month time period, which in this case had largely elapsed, and which was imposed by the legislature to ensure respect for the freedom of democratic debate within town councils; that thus the meeting of the Venelles town council to resolve without delay the issue of nominating delegates on the urban district council was, on the facts, a matter of urgency;

Considering that it follows from the foregoing that it is appropriate to suspend the above-mentioned decision of 14 December 2000 and to couple this with an injunction ordering the mayor, in the circumstances of this case, to call a council meeting by at the latest Wednesday 7 March 2001 at 1800h in order to resolve the issue of the possible replacement of the commune’s delegates on the urban district council; that on the other hand it is not appropriate, as requested by the applicant, to attach a penalty to this injunction;

On the submissions of Mr. Saez on application of the provisions of article L 761-1 of the Administrative Justice Code:
Considering that it is appropriate, on the facts of this case, to apply the provisions of article L 761-1 of the Administrative Justice Code and to order the commune of Venelles to pay Mr. Saez a sum of 10,000 francs for expenditure incurred by him and not covered by costs:

DECIDES:
Article 1: The order of the President of the Marseille Administrative Tribunal dated 24 January 2001 is annulled.

Article 2: The decision of the mayor of Venelles dated 14 December 2000 is suspended.

Article 3: The mayor of Venelles is enjoined to call the town council before 1800h on Wednesday 7 March 2001 in order to resolve the issue of the possible replacement of the commune’s delegates on the Aix urban district council.

Article 4: The commune of Venelles will pay Mr. Saez the sum of 10,000 frances under article L 761-1 of the Administrative Justice Code.

Article 5: The remaining submissions of the request of Messrs Saez, Dauge, Caille, Bianchi, Granier, and d’Huart before the interlocutory judge of the Marseille Administrative Tribunal and the remaining submissions of this application are rejected.

Article 6: This decision will be notified to Mr. Jean-Pierre Saez, Mr. Maurice Dauge, Madame Danielle Caille, Mr. Georges Bianchi, Mr. Michel Granier, and Mr Lionel d’Huart, to the commune of Venelles and to the Minister of the Interior.

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