Parking authorisation

Since operating a taxi as a private individual is subject to obtaining a parking permit, Ms X sent a request to the Mayor of the municipality on 22 January 2012 for the granting of a second parking permit.

Given the particularly long waiting times, this request was examined during the departmental commission for taxis and small vehicles on 25 September 2014, which also issued an unfavourable opinion on the granting of a second authorisation.

A few weeks later, Law No. 2014-1104 of 1 October 2014 relating to taxis and chauffeur-driven vehicles and codified in Article L. 3121-1-2 of the Transport Code came to prohibit the allocation of several parking permits to the same operator.

However, ignoring this new law, which was nevertheless applicable, and the unfavourable opinion of the departmental commission, the Mayor of the commune had granted Mrs X a second parking permit.

To circumvent the regulations in force, the Mayor had made two false public documents by backdating them to September 25, 2014:

• the municipal decree establishing a fourth taxi stand;
• the municipal decree authorising the stationing of a second taxi-equipped vehicle.

By a homologation order issued on 18 June 2019 by the President of the Tribunal de grande instance of Digne-les-Bains, which became final, the Mayor had been convicted of these offenses and sentenced to a criminal fine of €700, of which €400 was suspended.

Having been informed that Ms X was still operating this falsified parking authorization, a professional taxi union had sent, by letter dated 6 August 2019, a pre-litigation appeal (recours gracieux) to the Mayor requesting the withdrawal of the contested decrees.

In the absence of any response from the Mayor within two months of notification of that appeal, an implicit rejection decision arose on 8 October 2019.

It was in these circumstances that the union instructed Cabinet GOLDWIN.

Proceedings were brought by the Firm before the Administrative Court of Marseille seeking:

• primarily, a declaration that the contested municipal decrees of 25 September 2014 and the implicit rejection decision were null and void and of no effect;
• in the alternative, annulment of that decision and an order requiring the Mayor to withdraw the contested decrees.

This matter required the development of several points of law, which are set out below.

First, the Firm sought to establish the admissibility of the application

It was necessary to demonstrate, in the first instance, the standing of the professional taxi union to bring proceedings, which did not raise any particular difficulty given that the union is mandated, under its articles of association, to defend the professional interests of its members.

In this case, the conduct of the Mayor and of Ms X unquestionably harmed the taxi profession by granting the latter a second parking authorisation in breach of the Act of 1 October 2014.

The professional taxi union therefore, had a clear and legitimate interest in bringing proceedings before the administrative courts.

It was then necessary to establish that both (i) the request for withdrawal and (ii) the request for a declaration of nullity and no effect in respect of the contested decrees were themselves admissible.

Regarding the request for withdrawal of the decrees

Article L. 242-1 of the Code of Relations between the Public and the Administration (CRPA) provides that the administration may only abrogate or withdraw a rights-conferring decision at the request of a third party if the decision is unlawful and if the abrogation or withdrawal occurs within four months of the adoption of that decision.

In the present case, Cabinet Goldwin had submitted a pre-litigation appeal on behalf of the professional taxi union to the Mayor of the municipality on 6 August 2019, following notification that the Mayor had been found guilty of forgery of a public document by the homologation order of the sentencing judge of the TGI of Digne-les-Bains.

Since the contested decrees had been made by the Mayor in 2014, the request for withdrawal was lodged five years after their adoption, well beyond the time limit prescribed by Article L. 242-1 of the CRPA.

However, the Code of Relations between the Public and the Administration provides for a derogation to that provision, set out in Article L. 241-2, pursuant to which a unilateral administrative act obtained by fraud may be abrogated or withdrawn at any time. The Conseil d’État has had occasion to reaffirm this principle on numerous occasions (CE, 16 August 2018, no. 412663; CE, 26 April 2018, no. 410019; CE, 5 February 2018, nos. 407149 and 407198).

Regarding the request for a declaration of nullity and no effect

Furthermore, it is settled case law that where an administrative act is tainted by a defect of such gravity as to affect not merely its legality but its very existence, the applicant is entitled to request the court to declare it null and void and of no effect (CE, 28 February 1986, no. 62206; CE, 9th and 10th combined sub-sections, 18 March 2015, no. 367491).

Moreover, the union had submitted a pre-litigation appeal to the Mayor seeking withdrawal of the contested decrees.

An implicit rejection decision therefore arose, by virtue of the Mayor’s silence, on 8 October 2019. The union accordingly had two months within which to bring contentious proceedings before the Administrative Court of Marseille.

The union’s application was therefore admissible in all respects.

Second, the Firm sought to demonstrate the fraudulent nature of the municipal decrees

The parking authorisations issued constituted forgery of a public document.

Article 441-1 of the Criminal Code provides that forgery consists of any fraudulent alteration of the truth liable to cause prejudice, accomplished by any means whatsoever, in a document or any other medium of expression of thought which is intended to, or may have the effect of, establishing proof of a right or a fact having legal consequences.

Pursuant to Article 441-2 of the same Code, forgery may be committed in a document issued by a public authority for the purpose of granting an authorisation, in particular.

In this case, to avoid the provisions of the law of 1 October 2014 prohibiting the granting of several parking permits to the same taxi operator, the Mayor deliberately backdated the municipal decrees, which he himself acknowledged.

The fraudulent nature of the orders was therefore evident.

Furthermore, following a complaint for forgery of public documents filed by the union in April 2018, the Mayor was found guilty of falsifying the decrees by approval order of the sentencing judge of the Digne-les-Bains TGI on June 18, 2019.

That being said, the disputed orders were in any case irregular since they had been issued on 25 September 2014, i.e. prior to the notification of the advisory opinion of the departmental commission for taxis and small vehicles, which took place on 30 September 2014.

• Thirdly, the firm sought to demonstrate the illegality of the implicit decision by which the Mayor had rejected their request to withdraw the disputed orders.

Since the falsification of the orders was obvious, the Mayor was obliged to withdraw the fraudulent parking permits he had granted.

Therefore, he could not refuse to use his power to withdraw the said orders.

Its implied decision to reject was therefore tainted with illegality.

Thus, by decision of October 11, 2022, the Administrative Court of Marseille, considering that the decrees of September 25, 2014 were tainted by a defect of such gravity that it affects their legality and their very existence.

Consequently, the Court held that they constituted null and void acts and could not be regarded as having created an acquired right for the benefit of their beneficiary, even if they had been in good faith, nor of third parties.

He also considered that, since the withdrawal of the two orders could not be regarded as excessively prejudicial to the interests of the municipality, it was required to withdraw them and that the implicit refusal to withdraw the orders which had been made to the union should therefore be annulled.

The Court therefore annulled the implied decision by which the Mayor rejected the request for withdrawal of the two orders dated 25 September 2014 submitted by the professional taxi union.

In addition, the Court ordered the municipality to pay the union the sum of 2,000 euros in legal fees.