CRDP (Nanterre)

Bertrand du Marais

French State Council (Paris), CRDP (Nanterre)
Conseiller d’Etat

Bertrand du Marais is a Conseiller d’Etat (Councillor of State), a member of the French highest court of appeal for judicial review and for the adjudication of all cases involving public agencies). He is currently seconded to the Université of Paris West at Nanterre as Professor for Public Utility and Regulation Law and Law and Economics. He is the co-director of the Law and Economics Masters there. Prior to this assignment, Bertrand du MARAIS has founded and managed between 2005 and 2007 the international think tank “The Economic Attractiveness of Law Program” (Programme Attractivité économique du droit), carrying out comparative researches on the interactions between Law and Economics and economic impact assessment of Law. He also has been invited as a Lecturer or Visiting Professor of Public Economic Law by leading nternational universities (i.e. Berkeley Haas Business School, Université de Montréal, Seoul National University). Bertrand du Marais is the author of numerous articles in the field of Utility Regulation and Competition Law, Law & Economics, Environmental Law, Administrative Procedure, Public Governance and Internet Law. He has published a textbook on Market Regulation and Public Utility Law (Droit public de la régulation économique, Paris, Ed. Presses de Sciences-Po et Dalloz, January 2004, 612 p.), which has been awarded the 2004 Charles Dupin-Medal by the French Academy for Political and Social Sciences. Bertrand du Marais graduated from the Ecole Nationale d’Administration and the Ecole Supérieure des Sciences Economiques et Commerciales - Graduate School of Economics and Management (ESSEC). He speaks fluently French, English and German.

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Articles

190275 Review

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 (...)

Bertrand du Marais Contractual lease of public property : The European Court of Justice decides that both the “Services directive” 2006/123/EC and the freedom of establishment (Art 49 TFEU) bar the renewal of a lease contract for public property without a competitive tender procedure (Promoimpresa ; Mario Melis)

342

On our National Day, the Court of Justice clearly ruled in favour of the obligation to create a system of competitive tendering prior to obtaining a temporary authorisation to occupy the public domain (AOT) at the very moment when the French Parliament was tearing itself apart over the need to (...)

Bertrand du Marais Occupation of the public domain: The French Senate refuses to empower the French Government to implement public procurement procedures before granting authorisations to occupy the public domain or to sale the public domain

144

Adopted at first reading in the Senate on July 8, 2016, the bill relating to transparency, the fight against corruption and the modernization of economic life (known as "Sapin 2 Law") was the subject of an interesting crossfire between the Government, the Council of State and the Senate on the (...)

Bertrand du Marais Public procurement: The French Government reorganizes in depth the legal regime of public private partnership contracts with the draft Order and executive Order on concession transposing the Directive 2014/23/EU

131

At the time this issue was completed, the Government had not yet published the draft ordinances and decrees relating to concessions, which constitute the second "pillar" of the transposition of the third "Public Procurement Package" resulting from the Directives of 26 February 2014, the first (...)

Bertrand du Marais Public procurement : The French Supreme Administrative Court assesses the Draft Order on public procurement contracts which gathers in one text all regulations pertaining to public procurement contracts

220

At the time this issue was completed, the Council of State was seized of a draft order relating to public procurement, which is the first Act of the transposition into French law of the third "public procurement package" consisting of the three Directives: 2014/23/EU of the European Parliament (...)

Bertrand du Marais Notaries : The French Constitutional Council deprives the notaries from the characterization of “public employees” but confirms that they fall within the exception of “the exercise of official authority”(Pierre T.)

229

(On the Macron Bill, see also Francesco Martucci, this column.) The decision of the Constitutional Council, seized by way of the priority question of constitutionality (QPC), commented on here, does not so much draw attention by the boldness of its operative part as by its context and above (...)

Aurore Laget-Annamayer, Bertrand du Marais Concession schemes – Principle of public procurement: The Council of State retains that the general principles of public procurement do not prevent consortium bidding as long as legal requirements for grouping are abode by (Commune d’Aix-en-Provence)

250

CE, 13.07.12, Commune d’Aix-en-Provence, box n°358512 The Commune of Aix-en-Provence has launched a public service delegation procedure for the management of a pound and an animal shelter. The commune, wishing to group these two activities on the same site, wanted to entrust them to the same (...)

Bertrand du Marais Sector regulator’s jurisidiction: The Council of State decides that sector specific regulation power presides over general administrative regulatory power, thus confirming that local municipality cannot issue regulations preventing mobile phone antennas (Commune de Saint Denis)

297

CE, Ass. 26 October 2011, Commune of Saint Denis, n° 326492 The Council of State gives full effect to sectoral regulation in relation to the general administrative police. By excluding, once again, the competence of mayors to use their general police powers to regulate the installation of (...)

Bertrand du Marais Public contracts: The Government creates a compulsory bidding procedure for administrative building lease but lets the other lease contracts on public domain still uncovered by bidding procedures

234

Decree No. 2011-2065 of 30 December 2011 relating to the rules for awarding administrative emphyteutic leases, JORF No. 303 of 31 December 2011, p. 23003 The question of competitive bidding for titles of occupation of the public domain has been a recurrent issue for several years. Indeed, some (...)

Albéric Sakon, Bertrand du Marais CO2 quotae: The Government modifies the Monetary and Financial Code throught a draft bill on banking and financial regulation to take into account the financial crisis with regard to the development of the CO2 emission trading scheme

1320

Banking and Financial Regulation Bill, adopted without amendment on 2nd reading by the National Assembly on 11 October 2010 With Directive 2003/87, the European Community embarked on the construction of its most ambitious environmental policy by creating a European system for trading CO2 (...)

Antonin Gras, Bertrand du Marais Public contract - Pension funds: The ECJ rules that the pension funds in charge of managing optional supplementary pension for local civil servants should run the competitive bidding process set forth by the public procurement directives, although they have been chosen according to a social collective agreement (Germany)

1784

CJEU, 15 July 2010, Commission v. Germany, case C-271/08 Collective agreements are not excluded as a matter of principle from the scope of the free movement of services and the freedom to provide services. Only if the implementation of the procedures provided for in Directive 2004/18 is (...)

Bertrand du Marais, Dorian Guinard Art. 53 of the Public procurement code: The Council of State gives important precisions in order to implement Art. 53 of the Public procurement code, which compels to inform the candidates about the hierarchy and the weight of the selection criteria (Saint-Pal-de-Mons)

2024

CE, 18 June 2010, Commune de Saint-Pal-de-Mons, n° 337377 The Council of State specifies the application of the provisions of Article 53 of the Public Procurement Code, which require the contracting authority to inform candidates of the criteria for selecting bids and their weighting or (...)

Bertrand du Marais Nature of public work: The Council of State rules that power plants belonging to private corporations, when necessary, to secure energy supply, are used for the energy public service and hence, should be included in the public domain (Beligaud ; Electricité de France)

3385

EC, Ass. opinion of 29 April 2010, Beligaud v/ Electricité de France - Energie Méditerranée n° 323179 For strategic and technical reasons - electricity being a non-storable commodity - the public authorities wanted the controlled liberalisation of the electricity industry. Thus the transposition (...)

Bertrand du Marais Unformal bidding process - Criteria: The Council of State rules that there is no need to inform the bidders about the evaluation method but that the selection criteria should be public (Collectivité Territoriale de Corse)

1327

CE, 31 March 2010, Collectivité Territoriale de Corse, n° 334279 The Council of State confirms and clarifies its case law on the obligations of information and transparency imposed on the contracting authority with regard to selection criteria in the context of the so-called adapted procedure, (...)

Abdelghani Azi, Bertrand du Marais Exclusive competence of the public accountant: The Council of State confirms the strict monopoly of Treasury accountants to manage public funds thus preventing an external contractor to perceive public income except in the cases where: i) he belongs to the Treasury and has got a specific delegation; ii) he has been granted the specific status of “regisseur de recettes”; or, iii) a specific legislative exception exists (Prest’action)

2803

CE, February 10, 2010, Prest’action Company, n° 301116 Public contracts are the subject of growing disputes over the delimitation of the respective competences of the public principal and the private operator, especially as the financial arrangements to which they give rise are becoming (...)

Bertrand du Marais Contract of delegation of public utility: The Council of State rules that the maximal length of a concession scheme contract should not include the construction period (Commune de Chartres)

2395

CE, 8 February 2010, Commune de Chartres, n° 323158 For both contracting parties, the duration of a contract is a crucial parameter of their economic equilibrium. From the general point of view of ’collective welfare’, it is also a determining factor in the competitive intensity of the relevant (...)

Bertrand du Marais Institutionnal Public Private Partnership: The Council of State deems not possible, in a legal opinion contrary to EU Law, to organize a competitive bidding at the stage of the private shareholder’s selection

2017

The recent publication of the 2009 annual report of the Council of State, published in full, reveals an interesting opinion given by its consultative formation (the Administration Section) on the conditions of competitive tendering for semi-public companies (SEMs) involving the presence of an (...)

Bertrand du Marais, Jean-Mathieu Glatt Public/Private Partnership: The French Constitutional Council partially upholds a bill reforming the PPP 2004 ordinance and gives precision as to the constitutional requirement for public procurement (Public procurement)

4632

Cons. constitutionnel, dec. n°2008-567 DC of July 24, 2008, Law on partnership contracts Contract administration is omnipresent in our economic environment. The securing of contractual relationships is undoubtedly a component of economic efficiency. However, this can only be seen in relation to (...)

Aurélien Camus, Bertrand du Marais Public procurement: The Council of State rules that the extension of a contract for self service bicycles over 1.500 meters from the initial scope of the contract (Paris) does not alter the initial contract and then requires no new bidding (Ville de Paris)

4962

CE, Section, 11 July 2008, Ville de Paris, n°312354 The "Vélib’" service was the subject of a public contract signed on 27 February 2007 between the City of Paris and Somupi, a subsidiary of JCDecaux. A global contract for urban planning, technical and financial reasons, the contract covers both (...)

Albéric Sakon, Bertrand du Marais Public procurement: The ECJ rules on how to combine the obligation of a competitive bidding and the transfer of the contract, its extension and an unlimited duration clause (Pressetex Nachrichtenagentur GmbH c/ Autriche)

5239

ECJ, 19 June 2008, Pressetex Nachrichtenagentur GmbH v. Republik Österreich (Bund), case C-454/06 The Court of Justice of the European Communities emphasises that, in order to ensure the transparency of procedures and equal treatment of tenderers, amendments made to a public contract during its (...)

Bertrand du Marais, Parfait Houédanou Regulators’ disciplinary power: The Council of State holds corporation, in the case of financial market regulation, liable for fault when its employee causes wrongdoing if the corporation is not able to demonstrate the efficiency of its internal control and countermeasure procedures (Tradition Securities et Futures)

4128

CE, Section, 6 June 2008, CM CIC Securities, No. 300619 CE, Sect., 6 June 2008, Société Tradition Securities et Futures, No. 299203 In terms of financial market regulation, investment service providers (ISPs) are subject to very strict professional obligations because of their responsibilities (...)

Bertrand du Marais, Jean-Mathieu Glatt Public procurement: The French Prime Minister receives a report proposing measures to ease the use of various public/private partnerships schemes and their economic assessment (Complex public procurement)

3944

Bill amending Ordinance No. 2004-559 of 17 June 2004 on public-private partnerships adopted by the Senate on 4 April 2008 and the National Assembly on 26 June 2008 Report to the Prime Minister by Mr E. Besson on 27 May 2008: "Better purchasing for better public service: from complex public (...)

Aurélien Camus, Bertrand du Marais Labour agreements: The Council of State rules that, while legalizing labour agreements, Government regulation should combine social interest and the development of competition (Société Nouvelle de Remorquage du Havre)

4425

CE, 21 May 2008, Société Nouvelle de Remorquage du Havre, n° 291115 In a decision that is very rich in terms of the number of aspects reviewed, the Conseil d’État recalls its previous case law (EC, 16 Jan. 2002, Syndicat national des entreprises d’esthétique et de coiffure à domicile, CJEG May 2002, (...)

Bertrand du Marais, Diana Pham Airport fees: The Council of State rules that the airport fees should be equivalent to costs and can be adjusted only according to obvious differences and within an objective limits (Federal Express, Ryanair, Air France)

3773

CE, 4 April 2008, Société Federal Express, No. 296601 EC, 4 April 2008, Ryanair Ltd, No 298926 CE, 7 May 2008, Société Air France, No. 294213 Airport charges are one element in the price war between low-cost airlines and traditional airlines such as Air France, in a context that has been totally (...)

Albéric Sakon, Bertrand du Marais Public procurement scope: The Council of State rules that “subsidies” paid by a local government to get vocational training are public procurement contracts when they are paid as counterpart for a service defined by the government, whatever their contractual definition (La Réunion)

3891

EC, 26 March 2008, Reunion Region, No. 284412 The scope of the principle of competition continues to extend to the provision of vocational training: the Council of State has instituted here the obligation for local authorities to subject their providers of training modules to the competitive (...)

Bertrand du Marais, Jean-Mathieu Glatt "In house" derogation: The European Commission issues a notice on the scope of the “in house” derogation and the bidding process as regard institutional PPP ("Institutional public private partnership”)

5399

EC Commission, 5 February 2008, Interpretative Communication on the application of Community law on public procurement and concessions to institutionalised public-private partnerships (IPPPs), OJEU No C 91 of 12 April 2008, p. 4. On 5 February 2008, the European Commission published an (...)

Bertrand du Marais, Jean-Mathieu Glatt Concession schemes: The Council of State clearly rules out a general principle of the concessionaires’s exclusivity (SPS Tarbes)

6292

CE, 10 October 2007, Société SPS Tarbes, n° 255213 The Conseil d’État clearly states that there is no general principle of concession law consisting in the exclusivity of the concessionaire. The administrative judge apprehends infringements of competition law in contractual matters mainly at the (...)

Bertrand du Marais, Parfait Houédanou Consumers interest to act against regulators’ decisions: The Council of State acknowledges a general interest to act against regulators’ decision not to intervene (Tinez)

4925

CE, Sect. 30 November 2007, Tinez et al. 293952 Market authorities generally have the power to take up ex officio cases that fall within their jurisdiction. However, in the exercise of their duties, it is not uncommon for third parties to ask them through a complaint - or a denunciation - to (...)

Bertrand du Marais, Parfait Houédanou Public procurement: The Council of State rules that it may impose a compensation to enterprises whose agreement have misled the adjudicatory power (Campenon Bernard)

6529

CE, 19 December 2007, Société Campenon Bernard e.a., no. 268918 While competition law aims to protect the free functioning of the market, the logic of public procurement traditionally aims to pursue the general interest through "equality before public procurement, the protection of public (...)

Albéric Sakon, Bertrand du Marais Public fees/tariff: The Council of State holds that the tariff that public hospitals levy on private activities of medical doctors employed as public employees can partly be related to a market price (SNDELM)

5525

CE, Section, 16 July 2007, Syndicat National de Défense de l’Exercice Libéral de la Médecine à l’Hopital e. a., n° 293229 The existence of a "private sector" within the public hospital has always been both an original feature of the French health system and a source of recurrent legal difficulties. (...)

Bertrand du Marais, Parfait Houédanou Public procurement: The Council of State allows third parties to a public procurement contract to challenge the contract itself event after it has been signed, going beyond the 1989 “Recourse” EU Directive (Tropic Travaux)

5197

CE, Ass. 16 July 2007, Tropic Travaux Signalisation, No. 291545 The appeal in cassation lodged by the company Tropic travaux signalisation Guadeloupe, which was excluded from the invitation to tender for a contract concerning the marking of aircraft areas and road pavements at Pointe-à-Pitre (...)

Albéric Sakon, Bertrand du Marais Public tender: The Council of State rules that no bidding process is necessary for a public body in order to subsidize a non profit organization in charge of operating a public service as long as this service is out of the market (Commune d’Aix en Provence)

7690

CE, Section, 6 April 2007, Commune d’Aix en Provence c/ Armand, n° 284736 In this very interesting ruling of principle, the Conseil d’État both settles a question of great practical interest - must "paramunicipal" associations be subject to prior competition under public service delegations - and (...)

Albéric Sakon, Bertrand du Marais Principle of equal treatment: The French Council of State applies for an ECJ preliminary rulings and underlines the close relationship between the principle of competition and the principle of equal treatment (Arcelor Atlantique et Lorraine)

7564

CE, Ass. 8 February 2007, Société Arcelor Atlantique et Lorraine, No. 287110 The steel sector is, due to the use of fossil materials that emit high levels of CO2, subject to the greenhouse gas emissions trading system. However, some of the goods it offers on the markets are in direct competition (...)

Bertrand du Marais, Parfait Houédanou Art. 6.1 ECHR: The French Council of State is reluctant to extend the application of Art 6.1 ECHR to sanctions decided by all independent agencies (Corsair)

7240

CE, Sect. 31 January 2007, Compagnie Corse Air International (Corsair), n° 290567 Rather than relying on Article 6, §1 of the European Convention on Human Rights, the Council of State relies on the provisions of Article L. 227-4 of the Civil Aviation Code to decide that the person on whom an (...)

Bertrand du Marais, Camille Tréheux Public procurement: The ECJ rules that the French public procurement contract of urban development concession ("concession d’aménagement") is actually a civil works contract under EU Law and must be awarded through a competitive bidding process (Jean Auroux/Commune de Roanne)

8750

ECJ, 18 January 2007, Jean Auroux and Others v. Commune de Roanne, Case C-220/05. Clearly, the local mixed economy is going through a bad period with Community law. This decision of the ECJ confirms the doubts that one might have concerning the compatibility of the system of "development (...)

Bertrand du Marais Energy liberalization: The French Constitutional Court rules as contrary to EU Law the power granted to the Government to impose retail tariffs on energy producers even after liberalization (GDF)

4508

It postpones the privatization of Gaz de France until the market liberalization has been completed Cons. const. dec. no. 2006-543 DC of 30 November 2006, Law on the energy sector, JORF no. 284 of 8 December 2006 p. 18544 Liberalisation of the energy market: the Constitutional Council recalls (...)

Albéric Sakon, Bertrand du Marais Public procurement: The Council of State holds that the adjudicating power must inform bidders about the reason their proposals have been dismissed (Syndicat des eaux de Charente-Maritime)

4809

This information should not impair fair competition and be an infringement of professional secrecy CE, 20 October 2006, Syndicat des eaux de Charente-Maritime, n° 278601 (to be mentioned in the tables of the Recueil Lebon) The difficult conciliation between transparency and competition To (...)

Bertrand du Marais Essential facilities: The Council of State holds that intellectual property fees may be levied along with a user fee by a public agency operating an essential facility (CEGEDIM)

5551

However, the Conseil d’État exerts a reasonableness test as to the amount of these fees which should neither be detrimental to competition nor should lead to disproportionate profits Difficult conciliation between the protection of intellectual property and the defence of competition: the (...)

Bertrand du Marais Public Private partnership contracts: The French Council of State uphelds the attribution by decree to a public Agency from the Ministry of Finance of the task to assist public agencies preparing, negotiating and monitoring public private partnership contracts (Ordre des avocats au Barreau de Paris)

8596

CE Ass. 31 May 2006, Ordre des avocats au Barreau de Paris, No. 275531 Initially brought before the Administrative Jurisdiction Division, this case was finally decided by the Litigation Assembly, the most solemn formation of the Council of State, as if to underline its importance and (...)

Bertrand du Marais Teckal: The ECJ holds that a public service concession can be allocated without prior competition if the supplier is entirely owned by the contracting authority (ANAV)

5863

ECJ, 6 April 2006, Associazione Nazionale Autotrasporto Viaggiatori (ANAV), Case C-410/04. The present case is an extension, but also provides a useful summary, of the principles laid down by the Court of Justice in relation to "in house" services and resulting from the Teckal case law (ECJ, (...)

Bertrand du Marais General interest assesment: The ECJ considers that the exclusive rights to assist tax payers to fulfil their fiscal obligations does not relate to the public interest and is not compatible with the Treaty (Giuseppe Calafiori)

3964

For an analysis of this judgment from the "State aid" angle, see Concurrencesn°2-2006, p.124, obs. J. D. ECJ, 30 March 2006, Servizi Aussiliari Dottori Commercialisti Srl v Giuseppe Calafiori, Case C-451/03 This case marks the extension of the application of Community law to certain activities, (...)

Bertrand du Marais State subsidy: The French State Council rules that the contracts to procure street equipment are public procurement contracts, even if the public agency does not pay the service to its contractor (Decaux)

4864

CE, Ass. 4 November 2005, Société Jean-Claude Decaux, n° 247298 and n° 247299 The street furniture market: a highly contested market The commented judgment, which groups together two similar cases, will undoubtedly put an end - hopefully definitively - to the long-standing discussion on the legal (...)

Bertrand du Marais Public procurement contract: The French State Council strikes down a regime of exclusive state subsidy on the ground of a breach of the equality principle (MGSP)

4966

CE, 26 September 2005, Mutuelle Générale des Services Publics, No. 262282 By this decision, the Conseil d’État annulled a system of exclusive subsidies for excess of power (see not. N. C., Actualités Concurrence et Régulations, AJDA, 2005). The subsidy scheme in question benefited the Mutualité (...)

Bertrand du Marais Public Contracts: The Administrative Court of Appeal of Bordeaux rules that town planning contracts are subject to publicity and transparence obligations ("concessions de ZAC") (Sodegis)

4911

CAA Bordeaux, November 9, 2004, SODEGIS, n° 01BX00381 Law No. 2005-809 of 20 July 2005 on development concessions Since it carried out a genuine cultural revolution in the mid-1990s, the administrative judge has taken the principle of competition into consideration when exercising the control (...)

Bertrand du Marais Public services financing: The administrative Court of Appeal of Paris applies the ECJ Altmark case law (Internationale de diffusion et d’édition)

4628

CAA Paris, 5 October 2004, Min. culture c/ Sté Internationale de diffusion et d’édition, 01PA02717, 01PA02761, 01PA02777, 03PA04060 The distribution of French books throughout the world is an important component of France’s cultural policy and is based on the principle of "cultural exception". The (...)

Bertrand du Marais Social security insurance sector: The French Council of State rules on alleged abuse of dominant position by way of exclusive right in the social security insurance sector (Mutuelle générale des services publics)

5518

CE, 16 June 2004, Mutuelle générale des services publics and others, Nos 235176, 238290 and 238291 This decision, which should only be mentioned in the tables of the Recueil Lebon, is very important in public competition law (see not., N. CHARBIT, Actualités de droit de la concurrence, AJDA, n° (...)

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