Cumulation of Functions of the SPS Coordinator: An Absolute Prohibition (Cass. 3e civ., 12 April 2018)

You are a landlord in Cholet and you entrusted the renovation of your building to an architect who also accepted the role of Safety and Health Protection Coordinator (SPS). Problem: on a construction site, the coordinator must be independent, without any other hat. The Court of Cassation, in a judgment of 12 April 2018, ruled: total prohibition of cumulating this function with another, whether personally or on behalf of the legal entity that employs him. What do you risk if you disregard this? Cancellation of the contract, penalties, and above all, endangerment of workers' safety. Analysis.

The Facts: A Story Like Many Others

In 2010, the SCI ASSET, owner of a building in Angers, signed a preliminary sale agreement with Mr X, an investor from Beaupréau-en-Mauges. The property was to be rehabilitated. The SCI entrusted the project management to an architecture firm, whose manager, Mr Y, was also appointed SPS coordinator. The work began, but very quickly, defects appeared: cracks, waterproofing problems. Mr X refused to sign the final deed, considering that the property was not compliant. The SCI sued him for payment of the price and damages.

Before the Tribunal de Grande Instance of Angers, Mr X defended himself by arguing that the SPS coordinator could not be both project manager and coordinator. The court dismissed his claim, ruling that cumulation of functions was not prohibited at the time. Mr X appealed. The Angers Court of Appeal reversed the judgment: it declared the preliminary agreement void and ordered the SCI to pay €47,451.87 to Mr X. The SCI appealed to the Court of Cassation, but the Court dismissed the appeal, confirming the prohibition of cumulation. Moral: the coordinator must be an independent third party, with no personal interest in the operation.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article L. 4532-4 of the Labour Code (this provision requires the project owner to appoint an SPS coordinator for any site where several companies are involved). But it goes further: it interprets Article L. 4532-6, which provides that the coordinator "performs his mission in complete independence." For the Court, this independence is incompatible with the exercise of another function on the same site, even on behalf of the legal entity he directs. In this case, Mr Y was the manager of the architecture firm that provided project management: he was both judge and party.

The judges reject the SCI's argument that cumulation would be permitted if the coordinator acts on behalf of the legal entity. They recall that the function of coordinator is personal and cannot be delegated. The decision is a confirmation of previous case law (Cass. crim., 12 March 2013, No. 11-85.344), but it extends it by specifying that the prohibition also applies to legal representatives. This is an essential safeguard for workers' safety.

Mr X's arguments were simple: the coordinator must be neutral, yet Mr Y had every interest in the work progressing quickly so as not to delay the sale. The SCI retorted that the coordinator had no subordinate relationship with the project manager. In vain: the Court considers that the mere act of cumulation creates a potential conflict of interest, sufficient to vitiate the procedure.

What This Changes for You — Concretely

If you are a landlord in Beaupréau-en-Mauges and you entrust a site to a contractor who also offers to act as SPS coordinator, you risk a lot. First, the sale or construction contract may be annulled if the cumulation is discovered afterwards. Secondly, you may be ordered to pay damages for non-compliance with safety rules (Article L. 4741-1 of the Labour Code provides for a fine of €10,000 per offence for a natural person).

For a purchaser, this is a powerful lever: if you discover that the coordinator was also the project manager, you can seek annulment of the sale and obtain compensation. For example, on a €300,000 site, a defect of €20,000 can be charged to the seller if the cumulation is proven.

For professionals (architects, design offices), beware: if you accept both missions, you risk your professional liability insurance. Insurers may refuse to cover the loss if cumulation is established. My advice: if you are in this situation, immediately check that your SPS coordinator has no other function. If so, demand their replacement without delay.

Four Tips to Avoid This Type of Dispute

• Check the qualifications and independence of the SPS coordinator: request a sworn statement that he performs no other function on the site, and verify his registration on the prefectural list of coordinators.
• Draft a separate coordination contract: do not entrust the coordinator mission to the same legal entity as the project manager. Use an external specialised provider.
• Require a site organigram: at the start of works, ask for a document listing all parties and their functions. If in doubt, consult a lawyer.
• Have your site audited by a third party: if you are the project owner, an independent technical inspector can detect irregular cumulation before it causes damage.

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Further Reading: Related Case Law and Developments

This decision is part of a protective line for workers. Already in 2013, the Criminal Chamber sanctioned a coordinator who was also a works supervisor (Cass. crim., 12 March 2013, No. 11-85.344). But the Court of Cassation goes further in 2018: it extends the prohibition to the legal representative of the legal entity. This means that even if the "physical" coordinator is different from the project manager, if the manager of the project management company is also the coordinator, it is illegal.

Since then, the judicial courts (formerly TGI) and courts of appeal strictly apply this rule. For example, the Lyon Court of Appeal, in a judgment of 15 May 2019, annulled a construction contract for cumulation of functions. The trend is clear: judges sanction any breach of the coordinator's independence. In the future, we can expect insurers to refuse to cover losses in case of cumulation, which will strengthen prevention.

Frequently Asked Questions

Can the same employee be SPS coordinator and works supervisor for two different companies?
No, because the function of coordinator is personal and indivisible. He cannot have another role on the same site, even if the employers are distinct.

What should I do if I discover cumulation during the works?
Immediately suspend the works and demand the replacement of the coordinator. Consult a lawyer to assess remedies (annulment of contract, damages).

What is the time limit to challenge cumulation of functions?
The action for relative nullity is prescribed by 5 years from the discovery of the defect (Article 1144 of the Civil Code). But it is better to act quickly, especially if the site is ongoing.

Can the coordinator be a legal entity?
Yes, but the legal entity must designate a specifically identified natural person, who alone may exercise the function. That natural person must have no other function.

Are there exceptions for small sites?
No, the prohibition is absolute. Even for a site of less than 30 days or fewer than 10 employees, the coordinator must be independent.

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