Contrat administratif
In French administrative law, a form of action by the public sector is referred to as a contrat administratif (French administrative contract ) . The contrat administratif does not designate every type of contract that the administration concludes, but is only a sub-case of the administration contract (contrat de l'administration). It applies to all contracts to which other contractual rules than those under private law apply.
Demarcation
Certain contracts are already the law as contrats administratifs in (contrats administratifs par la loi determination de). Their demarcation is as unproblematic. In the absence of such a legal provision, case law makes the distinction according to two criteria:
- One of the contractual partners is a legal person under public law.
- The contract contains a clause exorbitante du droit commun or relates to the implementation of a public service .
Legal consequences of the contrat administratif
The contrat administratif according to the classic French understanding differs fundamentally from the public law contract of German character: "Public law contract and contrat administratif have the same terminology, but nothing to do with each other in terms of content." While the private law contract is the negotiation result of two autonomous individuals with equal rights is, the administration contract has clear features of a subordination relationship: "The contrat administratif does not initially serve the particular, individual interests of the individual contracting parties, but primarily the public interest and common good." The administration has numerous special rights in the context of this administration contract compared to the normal civil law contract how to unilaterally cancel or amend the contract. The contractual partner of the administration is only entitled to financial compensation claims on the dogmatic basis of the theory of the business basis ; Paradoxically, the special status of the management contract is shown in the fact that French civil law does not recognize the figure of the business basis.
literature
- André de Laubadère, Franck Moderne, Pierre Delvolvé: Traite des contrats administratifs . LGDJ / Montchrestien, Paris 1998, ISBN 978-2-275-01043-4 .
- Uwe Lüthje : The theory of the Contrat Administratif in French administrative law . Heitmann, Hamburg 1964.
- Richer: Droit des contrats administratifs . 7th edition. LGDJ, Paris 2010, ISBN 978-2-275-03479-9 .