The University of Texas at Austin   School of Law

Main menu:

Case:
No.91326 Case Département de l’Hérault c/ Minstère de l’Agriculture et de la Forêt
Date:
25 May 1992
Translated by:
J T Brown
Copyright:
Professor Sir B. S. Markesinis

No.91326
Case Département de l’Hérault c/ Minstère de l’Agriculture et de la Forêt

25 May 1992

Given that by an agreement dated 30 March 1984 the Commissioner of the Republic for the Hérault Department and the President of the General Council of that department set out the terms and conditions under which there would be put at the disposal of the President of the General Council the services of the Departmental Director’s Office for Agriculture and Forestry of the Hérault, which was an external service of the State;

Given that (i) by a decision set out in a letter dated 13 may 1987 the President of the General Council made it known to the Departmental Director for Agriculture and Forestry that, among other things, he intended that henceforth the services of the General Council should manage the rural development programmes which were financed out of departmental funds, and which had until then been carried out by that external State service, and demanded that, as a consequence, the relevant files and equipment be transferred to the premises of the General Council and that the officers who, being on the pay-roll of the Department, had continued to be integrated into the external services of the State which were responsible for agriculture, rural engineering and forestry, be transferred into the departmental administrative services; (ii) that decision constituted a unilateral termination of the agreement of 30 March 1984; and (iii) on the petition of the representative of the State the administrative court quashed the decision of the President of the General Council by a judgement from which the Department of the Hérault appeals;

Concerning whether the petition of the Commissioner of the République can be heard by the Administrative Court:

Given that on the one hand (i) when as a first step he seized the Ministers of the Interior and of Agriculture of the disagreement between him and the President of the General Council relating to the performance of the agreement of 30 March mentioned above and informed the departmental services of the reply of the Government, the representative of the State in the Department of the Hérault observed the procedure laid down by Article 7 of the Decree of 13 April 1982 relating to putting the external services of the State in the department at the disposal of the President of the General Council; and (ii) consequently, the refusal to hear the case based on the allegation that this procedure had not been followed before the referral to the administrative court is factually wrong;

Given that on the other hand the provisions of Articles 45 and 46 of the law of 2 March 1982, which enumerate the decisions of the departmental authorities which the representative of the State may refer to the administrative court if he considers them contrary to law, did not prevent the representative of the State from using ordinary legal recourse procedure in order to refer to the administrative court, as the court responsible for contractual matters, the disputes relating to the performance of the said agreement of 30 March 1984;

Given that (i) although the court seized of a contract has no power, in principle, to quash, on the petition of one of the parties, measures taken by the other party as being contrary to the provisions of the contract and although it has power only to enquire whether such measures have been taken in circumstances of a nature which give rise to a right to be indemnified, it is otherwise when the contract has been entered into by two persons of public law pursuant to Article 26 of the law of 2 March 1982 and concerns the organisation of a public service; and (ii) it follows that the administrative court rightly rejected the argument raised against the recourse taken by the representative of the State;

Concerning the legality of the decision under attack:

Given, on the one hand, that (i) pursuant to Article 30 of the Law of 2 March 1982 as amended concerning the rights and freedoms of municipalities departments and regions: “Until the entry into force of the law relating to the distribution of resources between the State, municipalities departments and regions, services of all kinds which the State currently provides for the carrying out of activities transferred by this Law to departments, or made available to departments as they may be needed, as well as relevant officers, shall remain the responsibility of the State. Similarly, services of all kinds, including those relating to the maintenance and acquisition of equipment, which departments currently provide for the functioning of the prefectoral service and the external services of the State and to their officers shall remain the responsibility of the departments…”;

Given, on the other hand, that (i) pursuant to the terms of Article 8 of the Law of 7 January 1983 relating to the distribution of responsibilities between municipalities departments regions and the State, as drafted on 13 May 1987, the date of the decision under attack: “Those external services of the State or parts of such services which have principal responsibility for carrying out either an activity attributed to the department or the region by the present law or by the law envisaged by the second paragraph of Article 4, or an activity currently under the responsibility of the department or region, shall be reorganised within a period of three years from the date of promulgation of the law relating to career guarantees for the personnel of local authorities, which is envisaged by Article 1 of Law no. 82-213 of 2 March 1982 cited above, in order to bring about their transfer to the appropriate local authority. The conditions and the date of the transfer of each category of services shall be fixed by decree. The transfer of activities from the State to local authorities cannot bring about the transfer to the department or the region services or parts of services which are necessary for activities which are under the responsibility of municipalities. In each department and region, and for each service, an agreement entered into by the representative of the State and the president of the general council or the president of the regional council, and approved by the relevant ministers, shall fix the conditions under which the provisions of this Article shall be performed. If no agreement is entered into within the period fixed by the decree mentioned in the second paragraph a joint order of the relevant ministers may determine the conditions of application of this Article, and in particular the list of services transferred”; and (ii) pursuant to the provisions of Article 9 of the said Law: “In each department and region the agreement entered into between the representative of the State and the president of the general council or the president of the regional council pursuant to Articles 26 and 73 of Law no. 82-213 of 2 March 1982 cited above shall be automatically extended up to the end of the period of three years mentioned in Article 4 of the law. Amendments to any such agreement or its schedules which may become necessary by reason of this law or the law envisaged in the second paragraph of Article 4 shall be the subject of a supplementary agreement approved by an order of the Minister of the Interior within a period of three months after the promulgation of the decree setting out, for each activity, the date upon which the transfer shall come into force”;
Given that (i) although the Law of 26 January setting out statutory provisions relating to local civil servants, which constitutes the “law relating to professional guarantees granted to employees of local authorities” mentioned in Article 8 of the law of 7 January 1983 cited above was promulgated in the Official Journal on 27 January 1984 and although, as result, the period of three years from such promulgation mentioned in the said Article 8 had expired on 13 May 1987 when the decision under attack was taken, it is agreed that at that date the decree setting out the “conditions and date of transfer of services or parts of services of the offices of departmental directors of agriculture and forestry had not yet been issued; (ii) consequently, the provisions of Article 8 of the Law of 7 January 1983 relating to the transfer to the department or to the region of external services or parts of external services of the State had not yet come into force; (iii) in these circumstances and since this case concerned officers recruited by the department and put into the office of the departmental director of agriculture and forestry at the time of the arrival of the Law of 2 March 1982, Article 30 of the Law of 2 March 1982, as moreover was set out in Article 4 of the agreement of 30 March 1984, made it impossible for the State or the department to bring to an end the mutual supply of personnel and services; (iv) thus, when he made, on 13 May 1987, the decision under attack, the President of the General Council of the Hérault did not apply either the provisions of Article 4 of the agreement of 30 March 1984 or those of Article 30 of the Law of 2 March 1982; and (v) consequently the Department of the Hérault has no grounds upon which to complain that, by the judgement under attack, the Administrative Court of Montpellier quashed the decision of 13 May 1987;

DECIDES:

Article 1: The petition of the department of the Hérault is rejected.
Article 2: (…)

Back to top

This page last updated Friday, 30-Sep-2005 17:17:06 CDT. Copyright 2007. All rights reserved.