Berck-sur-Mer casino wrangle to be decided by the Highest Administrative Court in France
The future of the Berck-sur-Mer casino in the French region of Pas-de-Calais is more uncertain than ever. Following the cancellation of three concession notices by the administrative court of Lille, SAS Jean Metz, a subsidiary of the Partouche group, the owner of the building housing the casino, filed a third-party opposition application, as well as a supplementary brief. It requested, in particular, that the March 25 order by which the interim relief judge had canceled the public service concession be declared null and void, which was, once again, rejected by the court.
In its application, SAS Jean Metz said: “The jurisdiction of the pre-contractual interim relief judge has to comply with the principles of publicity and competition as well as the regularity of the contract award procedure; he exceeded the limits of his office by ruling on the legal classification of the assets as well as on the existence of a contractual package composed of the casino lease agreement and the concession agreement. The interim relief judge could not derive from the existence of a contractual package, tacit consent to the assets wrongly classified as returnable assets returning free of charge to the municipality at the end of the concession.
“The building cannot be classified as returnable assets, since it belongs to the public limited company Groupe Partouche. There is no competitive advantage in its favour because there was no obligation to make real estate investments; the existence of real estate such as the current casino which other competitors could not have, does not in itself constitute a breach of equality of treatment between candidates.
The Société du Grand Casino de Dinant, which initiated the cancellations of the three concession notices, said: “There is no need to rule, since the municipality of Berck-sur-Mer has waived its right to pursue the contract award procedure.” The application is inadmissible on the grounds that the contested order does not prejudice its rights given the irregular nature of its offer and therefore its lack of chance of obtaining the public service delegation contract; the offer submitted by the Jean Metz company is based on the provision by the Groupe Partouche company of the building housing the current casino; such an offer is irregular insofar as its conditions of execution necessarily disregard the provisions of the Public Procurement Code relating to returned goods; this is so even though the building housing the current casino must return to the municipality upon expiry of the public service delegation agreement.”
In its decision, the court said: “In the context of a public service concession placing the burden on the co-contractor of the investments corresponding to the creation or acquisition of the assets necessary for the operation of the public service, all of these assets, movable or immovable, belong, in the absence of any provision in the agreement, from the moment of their creation or acquisition to the public person. Upon expiry of the agreement, the assets which have entered, in application of these principles, into the ownership of the public person and have been depreciated during the execution of the contract necessarily return to the latter free of charge.”
It added: “The concession contract relating to the operation of the casino in the territory of the municipality of Berck-sur-Mer concluded, on 30 September 2005, again with the company Jean Metz and the commercial lease concluded between the said concessionaire and its parent company, the company Groupe Partouche, must be regarded as having been considered as being interdependent and essential to the realization of the same economic operation, namely the operation of the casino, thus forming a single contractual whole. The existence of this contractual whole concerning the municipality of Berck-sur-Mer, the company Jean Metz and the company Groupe Partouche allows us to consider that the parties to the said contractual whole and in particular the company Groupe Partouche have necessarily integrated the property currently housing the casino which is necessary for the operation of the public service for the economic balance of the concession and agreed, in return, that this same property should return, in principle, free of charge to the municipality of Berck-sur-Mer upon expiry of the concession, as a return property.”
And concludes that “the Jean Metz company made a proposal that it could not commit itself in this way and decide on the future of a building which, in principle, it does not have at its disposal at the end of the concession. The Jean Metz company thus disregarded the provisions of Articles L.3132-4 and L.3132-5 of the Public Procurement Code, which set out the principles governing returnable assets, by excluding the property housing the current casino from the returnable assets regime and in particular the application of the principle of its free return at the end of the concession, and this in accordance with the consultation regulations in which the municipality of Berck-sur-Mer itself wrongly decided that this property could not be classified as returnable assets. Under these conditions, such an offer was irregular and could not allow the Jean Metz company to obtain the contract.”
As reported by Journal des Casinos, even before this decision, the Berck-sur-Mer town hall referred the matter to the Council of State on Wednesday, April 9. The Council will have to rule on the question of ownership of the former bus station, which houses the gambling establishment operated by the Partouche group. The municipality is asking the highest administrative court to decide between the first two judgments, which established that the former bus station was owned by a subsidiary of the Partouche group, and the last, which considers that it is now a reverted property.
