Public Works Contracts: When the Subcontractor Must Refer the Matter to the Administrative Court

You are a property owner in Draguignan, and you entrusted the renovation of your building to a delegated project manager, who himself subcontracted part of the work. A dispute arises over the subcontractor's payment. Before which judge should the case be brought? Until now, the answer was not obvious. But a recent decision by the Court of Cassation has clarified the rules of the game. And it has concrete consequences for you, even if you are simply a private individual.

This case involves two private companies: a subcontractor and a delegated project manager, both governed by private law, but within the framework of a public works contract. The question was whether the judicial court had jurisdiction or whether the administrative court should be seized. The Court of Cassation ruled: it is the administrative court, because the dispute concerns the performance of a public works contract. A solution that may come as a surprise, but which is based on solid logic.

Whether you are a property owner, developer or subcontractor in Brignoles, this decision concerns you. It determines not only the competent court, but also the substantive rules applicable. So, should you review your contracts? Anticipate litigation? Here is the full analysis of this case law, broken down for you.

The Facts: A Story Like Many Others

Imagine: the commune of Draguignan entrusts the construction of a school to a delegated project manager, a private specialist company. The latter subcontracts part of the structural works to a company from Brignoles. The work is carried out, but the subcontractor does not receive payment. He then turns to the Draguignan Judicial Court to claim his due. The delegated project manager raises a plea of lack of jurisdiction: according to him, only the administrative court can hear the dispute, because it concerns public works.

The Judicial Court declares itself competent, considering that the subcontract is a private law contract between two private individuals. The delegated project manager appeals. The Aix-en-Provence Court of Appeal confirms the jurisdiction of the judicial court. But the delegated project manager does not stop there: he lodges an appeal in cassation. The Court of Cassation quashes the appeal judgment and refers the case back to the Nîmes Court of Appeal, ruling that the dispute falls within the jurisdiction of the administrative court.

Why such a reversal? Because, according to the Supreme Court, the dispute concerns the performance of a public works contract. It does not matter that the parties are private individuals: the nature of the contract prevails. The subcontractor participated in a public works operation, and it is this classification that determines jurisdiction. A decision that makes professionals and private individuals alike think.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the principle of separation of jurisdictional orders (judicial and administrative) and on the Law of 16-24 August 1790 (which prohibits the judicial judge from hearing acts of the administration). It recalls that public works contracts are administrative contracts by nature, even if the delegated project manager is a private person. Consequently, any dispute relating to the performance of these works, including payment of the subcontractor, falls within the jurisdiction of the administrative court.

In this case, the subcontract was linked to a public works contract. The subcontractor was claiming direct payment provided for by the Spinetta Law (Law of 31 December 1975 on subcontracting, which allows the subcontractor to be paid directly by the project owner). However, this direct payment is part of the performance of the public contract. The dispute therefore does not concern a simple private contract, but the conditions under which a public works contract was performed.

The Court rejects the subcontractor's argument that the subcontract was a separate private law contract. It specifies that the classification of public works attaches to the operation itself, not to the nature of the parties. This decision confirms consistent case law (TC, 25 March 1996, Berkani, No. 03000) but applies it to a specific case of subcontracting. It is a confirmation, not a reversal. But it has the merit of clarifying a common grey area in practice.

What This Changes for You — Practically

For the Landlord Owner in Draguignan: If you entrust repair work on a communal property (for example, you own a building leased to the town hall), and the delegated project manager you have appointed subcontracts part of the work, the unpaid subcontractor must refer the matter to the Toulon Administrative Court, not the Draguignan Judicial Court. Beware of deadlines: the recourse before the administrative court is subject to a two-month time limit from the contested decision (or refusal to pay). If you are the project owner, you could be sued before the administrative court, even if you are a private individual.

For the Buyer in Brignoles: You are buying a unit in a co-ownership that had insulation work carried out by the neighbouring commune. The subcontractor of the main contractor claims direct payment from you. You must check whether the initial contract was a public contract. If so, the dispute falls within the jurisdiction of the administrative court. This changes the limitation rules (4 years before the administrative court versus 5 years in private law) and the avenues of appeal.

For the Property Developer: When you act as delegated project manager on behalf of a local authority, your subcontracts must include a jurisdiction clause in favour of the administrative court, failing which they may be declared void. Remember to check your standard contracts. A misdirected dispute can lead to unnecessary costs and delays.

Numerical Example: A subcontractor from Brignoles invoiced €50,000 for road works for the commune of Draguignan. Unpaid, he refers the matter to the Judicial Court. After 18 months of proceedings, the judge declares a lack of jurisdiction. The subcontractor must start again before the Toulon Administrative Court, losing time and legal fees (count €3,000 to €5,000). This decision would have saved him from this mistake.

Four Tips to Avoid This Type of Dispute

• Check the nature of the initial contract: If you are a subcontractor, ask to see the main contract. If it is a public works contract, be aware that any dispute over payment falls within the jurisdiction of the administrative court. Adapt your litigation strategy from the outset.
• Insert a jurisdiction clause in your subcontracts: For delegated project managers, expressly provide that any dispute will be brought before the territorially competent administrative court (usually the one where the works are located). This avoids challenges.
• Respect the time limits for recourse: Before the administrative court, the time limit to challenge a refusal to pay is two months. Do not delay in acting. In private law, you would have five years. Failure to comply with this time limit may deprive you of any remedy.
• Anticipate direct payment arrangements: In the event of subcontracting, the project owner may be required to pay the subcontractor directly (Spinetta Law). Ensure that the conditions are met (approval, bond) to avoid litigation. If you are a subcontractor, require the project owner to approve you and provide a bond.

Further Analysis: Related Case Law and Developments

This decision is in line with the case law of the Tribunal des Conflits (TC, 25 March 1996, No. 03000, Berkani) which establishes the principle that any dispute relating to the performance of a public works contract falls within administrative jurisdiction, including between private individuals. More recently, the Conseil d'État (CE, 13 July 2021, No. 436004) confirmed that the subcontractor of a public works contract can bring a direct action against the project owner before the administrative court.

The trend is therefore clear: administrative judges are extending their jurisdiction over everything relating to public works, even if the contractual link is governed by private law. This means that professionals must integrate this factor into their risk management. In the future, we can expect the notion of public works to be interpreted broadly, including, for example, urban development works carried out by semi-public companies.

Frequently Asked Questions

• Can I refer the matter to the judicial court if I am a subcontractor and the delegated project manager is a private company? No, if the works are public works. The nature of the contract prevails over the status of the parties. You must go to the administrative court.
• What is the time limit to act before the administrative court? Generally, two months from the decision refusing payment or from the date the dispute arises. In the absence of a response from the administration, the time limit runs from the expiry of a two-month period following your request.
• What if I have already brought the case before the wrong court? You can request a referral to the competent court. However, this entails additional costs and delays. It is better to check in advance.
• Does this decision apply to work carried out for a private individual? No, only if the project owner is a public entity (State, commune, etc.) or if the works are carried out as part of a public service mission.
• What are the risks if I do not respect this jurisdiction? Your action will be declared inadmissible, and you may be ordered to pay costs (legal fees). It is better to consult a lawyer before starting proceedings.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of proceedings — and often much more. Book an appointment →