The latest version of the Contracts Act partnership was published last July 28 after grooming imposed by the Constitutional Council the first version of the bill that was passed without amendment by the Senate, July 9, 2008, second reading.
The Constitutional Council was seized July 15 by sixty deputies ( text of the referral ) and sixty senators ( text of the referral ) of the Act relating to contracts of partnership. He spoke July 24, 2008 in his Decision No. 2008-567 DC .
The decision declared unconstitutional several parts of sections 2, 18 and 19. It has, moreover, raised office and declared unconstitutional two paragraphs of Article 16.
In contrast, for the PS deputy Jean-Jacques Urvoas which had largely followed the project his blog, the decision of the Elders of the Royal Palace "reminds the government that we can not on behalf of an alleged emergency escape the constitutional rules."
Confirming its decision in June 2003 and December 2004, the Commission found to be constitutional creation, alongside the criteria already agreed on the urgency and complexity, a third remedy available in all cases where the balance between the advantages and disadvantages of the partnership agreement is "favorable". But censorship
an article which presumed a series of urgent projects in very different fields (transportation infrastructure "Part of a sustainable development project" to work to improve the energy efficiency of buildings through public colleges and high schools).
The Constitutional Court concluded that these provisions limited the scope of the appraisal and prevented the court from exercising its control over the urgency.
In 2002 the Constitutional Council had already had to consider the first laws "inventing" a kind of partnership contract for real estate transactions to meet the needs of the national police, gendarmerie and justice (Dec. No. 2002-460 of 22 August 2002 and No. 2002-461 of 29 August 2002). He decided then that these laws, which departed from the normal rules of public procurement by establishing global contracts, did not affect, by themselves, the principle of equality in public procurement.
The following year, the Constitutional Council had to look at a law authorizing the Government to simplify the law, formally establishing the provisions of "partnership contracts" covering "the design, production, processing , operation and financing of equipment public, or the management and financing services, or a combination of these different missions. " In its decision (No. 2003-473 of June 26, 2003), he said "that, however, the generalization of such exceptions to the common law of public order or public property is liable to deprive the legal guarantees inherent constitutional requirements of equality before the public order, protection of public property and the proper use of public funds. "
is why the Constitutional Council has imposed since 2003 that the application areas of agreement partnership are reserved "to situations that meet the grounds of general interest such as the urgency because of special circumstances, local or detrimental to catch up, or the need to take into account the technical characteristics, functional or economic equipment or a specific service.
Ordinance No. 2004-559 of 17 June 2004 on partnership contracts, which constitutes the general legal framework of partnership contracts and that here was the subject of an amending Act, has complied with these principles, had also been confirmed on the basis of the December No. 2003-473 of 26 June 2003 by shutdown of the State Council No. 269 814 of October 29, 2004, Sweat and others. Furthermore, Law No. 2004-1343 of 9 December 2004 to simplify the law ratified Ordinance No. 2004-559 of 17 June 2004 on partnership contracts, and it was precisely on this point, recognized in accordance to the Constitution by the Constitutional Council (Dec. No. 2004-506 DC, December 2, 2004).
