Arnaud Sée

University Paris Nanterre
Professor

Arnaud Sée is professor of public law at Paris Nanterre University, where he teaches administrative law, public contracts law and Services of general interest. These subjects constitute his fields of research, which include the law and the administrative litigation, as well as public businesse law, and more specifically Regulatory authorities law. Arnaud is also interested in the relationship between law and artificial intelligence. He is the co-author of the Dictionary of Regulations (LexisNexis, 2016), with Michel Bazex, Gabriel Eckert, Regis Lanneau, Christophe Le Berre and Bertrand du Marais. He is co-responsible for the section "public service and regulations" for the Droit administratif journal, and coordinates the "competition" column of the Concurrences review. Arnaud studied at the University of Strasbourg, where he defended his doctoral thesis (Market Regulation in Administrative Law, Critical Study, 2010) and obtained a Master in public law and a Master in Business Law. Arnaud has also been invited to teach at the Universities of Cairo (Egypt), Potsdam (Germany) and Bologna (Italy).

Linked author

French State Council (Paris)

Articles

19951 Review

Arnaud Sée Fundamental principles: The French Administrative Supreme Court specifies the scope of the fundamental principles of public procurement, as well as the consequences of their possible violation by the contracting authority (La Méridionale, Autocars Faure)

110

The fundamental principles of public procurement continue to be questioned. Their inclusion in the preliminary title of public procurement (Article L3 of the Public Procurement Code) has made it possible to specify their scope of application, which extends to contracts which are nevertheless (...)

Arnaud Sée Public procurement: The French Administrative Supreme Court specifies the conditions enabling a public undertaking to apply to take part in a tendering procedure (Vinci)

202

Public persons may apply for the award of a public procurement contract, "no text or principle" prohibiting this (CE, avis, 8 November 2000, Jean-Louis Bernard Consultant, "The public procurement contract is a public procurement contract").). However, such an application "must not distort the (...)

Arnaud Sée Public procurement: The Government adopts the Ordinance No. 2018-1074 establishing the public procurement code which will come into force on April 1, 2019 (Ordonnance n° 2018-1074 ; Décret n° 2018-1075)

161

He’s finally here. The Code de la commande publique, which brings together more than thirty scattered texts, will in the future govern most of the law on public procurement contracts, from their award to their execution. It should be recalled that the draft Public Procurement Code was drawn up (...)

Arnaud Sée Concession of non-public service: The French Administrative Supreme Court confirms the requalification of urban furniture contracts in service concessions (Girod Média)

251

The new definition of the concession contract, resulting from the order of 29 January 2016, now makes it possible to reclassify certain contracts previously identified as public-sector occupation agreements or public contracts. The Conseil d’État thus confirms that street furniture contracts are (...)

Arnaud Sée Public tender: The French Administrative Supreme Court rules that contracts excluded from public procurement can be submitted to the fundamental principles of public procurement (Peyrani)

198

Are contracts excluded from the scope of application of competition law subject to the fundamental principles of public procurement? The question might seem incongruous. And yet, the Conseil d’État has just held that the exclusion of a contract from the scope of the Ordinances does not prevent (...)

Arnaud Sée Contractual litigation: The French Supreme Administrative Court confirms the minimum obligations imposed on the public body at the end of the award of an adapted procedure contract, and thus limits the contractual dispute of these contracts (MB Terrassements bâtiments)

103

The obligations of publicity and competitive tendering are largely reduced in the case of the MAPA (marché à procédure adaptée). Admittedly, the MAPA are not subject to a formal procedure, but they must nonetheless comply with the fundamental principles of public procurement (CE, Sect., 30 January (...)

Arnaud Sée, Bertrand du Marais Land leases: The French Government adopts, on April 19th, 2017, the Ordinance n° 2017-562, which specifies the scope and the procedure of a new competitive tendering obligation before granting authorizations to use land leases (Ordonnance n° 2017-562)

209

Competitive bidding for land titles is a sea serpent whose history is well known. As recommended by the Competition Council (Cons. conc., notice No. 04-A-19 of 21 Oct. 2004 on the occupation of the public domain for the distribution of free newspapers), it is a snake in the sea.), imposed by (...)

Arnaud Sée Transfer of competence : The European Court of Justice rules that a transfer of competence to a community union is not a public procurement requiring a competitive tendering procedure (Remondis)

137

The Hannover Region and the City of Hannover have set up a union of local authorities in order to allocate some of their competences to them. They have provided the new entity with the resources that they themselves have allocated to the exercise of these competences, and have undertaken to (...)

Arnaud Sée Public tender: The French Competition Authority assesses the examination procedure of non conform offers as regards competition rules (Commune de Saint-Germain-en-Laye)

122

The close links between competition law and public procurement law are now well known. Moreover, the competitive analysis of the rules of public procurement law is not new (see already Conseil de la concurrence, opinion n° 96-A-08 of 2 July 1996 relating to the proposals made in a report on the (...)

Arnaud Sée Concessions : The French Government adopts the order of 29 January 2016 and the Decree of 1 February 2016 transposing the Directive 2014/23 and developing a new regime of concession

167

A few months after the reform of public procurement law (see "Government transposes Directives 2014/24 and 2014/25 and redefines the scope of public procurement law", note A. Sée), Order No. 2016-65 of 29 January 2016 relating to concession contracts continues the work on public procurement law (...)

Arnaud Sée Formal procedures: The European Commission and the French Government adopt three regulations and two executive orders modifying application thresholds of EU directives and activating thresholds of formal procedures

96

Three European Commission regulations dated November 24, 2015 set the new thresholds for the application of European directives on public procurement contracts. Decree no. 2015-1904 of December 3, 2015 incorporates these provisions. As of January 1, 2016, these thresholds will be : 135 000 € HT (...)

Arnaud Sée Public Domain: The French Competition Authority controls the conditions of sub-concession allocations in the Gare du Nord in regard to anticompetitive practices law

192

The Competition Authority, judge of the competition? By monitoring the conditions for awarding state-owned sub-concessions, the Authority initiates a control of the procedures for awarding certain state-owned occupations with regard to the rules of the law on anti-competitive practices. It is, (...)

Arnaud Sée Pre-contractual interlocutory proceeding: The French Supreme Administrative Court extends the pre-contractual interlocutory judge office and controls the competence of the public person candidate for contract award of public procurement (CNAM des Pays de la Loire)

106

The pre-contractual summary proceedings judge is no longer only the judge of the call for tenders: by accepting to control the competence of the public person applying for the award of a public procurement contract, he extends his office beyond the limits set by article L. 551-1 CJA. In this (...)

Arnaud Sée Public procurement : The French Supreme Administrative Court specifies the conditions for the application of a public entity to a contract of public procurement (Armor)

233

With the decision of the "Société Armor SNC" Assembly, it is once again "the nagging question of the legal regime governing the candidacy of public persons for the award of a public contract" that is at issue (G. Eckert, "Candidature d’une personne publique: le Conseil d’État confirme l’avis Société (...)

Arnaud Sée Public contracts: The Council of State considers that street furniture contracts for the installation of Morris columns are not subject to competitive bidding (City of Paris)

231

3 Street Furniture contracts are not systematically public procurement contracts subject to advertising and competitive bidding requirements. While they were thought to be definitively qualified as public contracts (EC, 4 November 2005, Société Jean-Claude Decaux, [2005] ECR 476, note B. du (...)

Arnaud Sée Cooperation agreement: The Court of Justice considers that contracts of service agreements between a university and another public person are subject to the rules of competition (Università del Salento)

142

Although public procurement law allows cooperation contracts between public entities, it does not systematically exclude them from the rules of competition. The Court of Justice usefully recalled this in an important decision of 19 December 2012. In that case, the Health Agency of Lecce had (...)

Arnaud Sée Jurisdiction: The French Competition Authority claims its lack of competence to review practices involving public powers (Bagages handling Paris-Charles-de-Gaulle Airport)

159

Decision No. 12-D-21 of 18 October 2012 concerning practices in the baggage delivery sector at Paris-Charles de Gaulle airport. The Competition Authority was seized following a refusal by Aéroports de Paris to authorise a baggage handler to carry out his activity at the airport. Applying the (...)

Arnaud Sée Public service obligations - Compensation for public service costs: The Council of State approves the creation and funding of the public service of shipping between Corsica and the mainland (Compagnie Méridionale de Navigation)

143

CE, 13 July 2012, Compagnie Méridionale de Navigation, n° 355616 The issue of financing public transport services has been the subject of sustained attention by the Council of State in recent months (see not. CE, 23 July 2012, Île-de-France Region, this review, n° 04-2012, note D. Guinard). It is (...)

Arnaud Sée Contracts signed and implemented in foreign countries - Principle of public procurement: The Council of State holds that public contracts signed and implemented abroad are subject to the general principle of public procurement and thus should be allocated after a competitive bidding process (PRO 2C)

572

CE, 29.06.12, Company PRO 2C, n°357976 Contracts for the provision of services concluded and executed abroad are subject to minimum competitive bidding obligations, which do not, however, impose the notification of the rejection of his offer on the ousted competitor: such is the scope of the (...)

Arnaud Sée Freedom to exercicse economic activities: The Council of State confirms that public agencies may freely create economic activities that are the necessary support of their public services (Association pour la promotion de l’image)

1297

EC, Ass. 26 October 2011, Association for the Promotion of the Image and others, nos. 317827, 317952, 318013 and 318051 The administrative judge recalls that public persons may freely carry out the activities necessary for the public service missions for which they are responsible. Prefectures (...)

Arnaud Sée Concession schemes: The Council of State neutralizes the concession schemes provision for tacit renewal but this illegality does not imply that the contracts provision should be set aside in the contract enforcement subsequent litigation (Département de la Guyane)

396

EC, 23 May 2011, Department of Guyana, No. 314715 The "Département de la Guyane" decision allows the administrative judge to settle definitively the fate of the tacit renewal clauses contained in the public service delegations prior to the Sapin law (Law No. 93-122 of 29 January 1993 on the (...)

Arnaud Sée New action in contesting of the validity of the contract: The Council of State creates a new action against a contract opened to its parties in order to get its annulment” (Commune de Béziers)

2260

CE, Ass. 28 December 2009, Commune of Béziers, n° 304802 The administrative judge completes the restructuring of contractual litigation. After the opening of an action contesting the validity of the contract to certain third parties (CE, Ass., 16 July 2007, Société Tropic travaux signalisation, (...)

Arnaud Sée Institutionalized public private partnership: The ECJ supports the institutionalized public private partnership as long as the private partner of the contracting authorities within the supplying entity is selected through competitive tendering prior to the attribution of a service concession (Acoset)

4043

ECJ, 15 October 2009, Acoset, Case C-196/08 A few years ago, Professor G. Eckert wondered about "the very sustainability of the semi-public economy in the contemporary context", particularly in view of the constraints imposed by Community law (G. Eckert, Les sociétés d’économie mixte, bilan et (...)

Arnaud Sée "In house" exception for public procurement: The Council of State rules that transaction between a public interest grouping and their members are “in house” transactions (SNIIS)

4175

CE, 4 March 2009, Syndicat national des industries d’information de santé (SNIIS), No. 300481 Public procurement law, while requiring contracting authorities to comply with strict competitive procedures, does not imply the systematic outsourcing of tasks in the public interest. The Conseil (...)

Arnaud Sée Public procurement: The French Council of State rules that the European principle of transparency does not impose to the contracting authorities to have the publicity of the bidding procedure systematically published at the European level even if the contract is of interest to bidders from other member States (ANPE)

3133

CE, Sect. 30 January 2009, Agence Nationale Pour l’Emploi (ANPE), n° 290236 The fundamental principles of public procurement law form the backbone of competitive tendering procedures. The decision handed down by the Administrative Jurisdiction Division of the Council of State on 30 January 2009 (...)

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