Purpose of the decision
GOLDWIN, represented by the partner of the firm’s public law department, Olivia ZAHEDI, obtained the cancellation of two parking permits that had been falsified by the mayor of a municipality in order to benefit an individual who was no longer able to obtain them.
In this case, the mayor had backdated the parking permits in order to circumvent Law No. 2014-1104 of October 1, 2014, which had come to prohibit the granting of several parking permits to the same operator.
The purpose of the appeal filed with the Marseille Administrative Court was thus:
1/ to declare the disputed parking authorizations null and void ;
2/ to annul the implicit decision by which the Mayor had rejected the request for their withdrawal.
As the operation of a cab as a craftsman is conditional on obtaining a parking permit, Ms. X had sent the Mayor of the municipality on January 22, 2012 a request for the allocation of a second parking permit.
Given the particularly long waiting times, this request had been examined by the departmental commission for cabs and small delivery vehicles on September 25, 2014, which had also issued an unfavorable opinion on the granting of a second authorization.
A few weeks later, Law No. 2014-1104 of October 1, 2014 on cabs and chauffeur-driven cars and codified in Article L. 3121-1-2 of the Transportation Code had come to prohibit the allocation of several parking authorizations to the same operator.
However, ignoring this new law, which was nevertheless applicable, and the unfavorable opinion of the departmental commission, the mayor of the municipality had granted a second parking permit to Mrs. X.
In order to circumvent the regulations in force, the Mayor had made two forgeries in public writings by backdating to September 25, 2014:
the municipal by-law establishing a fourth cab stand ;
the municipal ordinance authorizing the parking of a second cab equipped vehicle.
By a homologation order issued on June 18, 2019 by the President of the Tribunal de Grande Instance of Digne-les-Bains and which has become final, the Mayor had been sentenced for these facts to a tortious fine of 700 euros including 400 euros suspended.
Informed of the fact that Mrs. X was still operating this falsified parking permit, a professional cab union had sent, by letter dated August 6, 2019, an ex gratia appeal to the Mayor in order to ask him to withdraw the litigious decrees.
In the absence of a response from the Mayor within two months of the notification of this appeal, an implicit decision of rejection was issued on October 8, 2019.
It is under these conditions that the union called upon the GOLDWIN firm.
Proceedings have been initiated by the Firm to request the Marseille Administrative Court:
primarily, to declare null and void the disputed municipal orders of September 25, 2014 and the implicit decision to reject its request to withdraw the two orders;
in the alternative, to annul this decision and to enjoin the Mayor to proceed with the withdrawal of the litigious decrees.
This case called for the development of several points of law, to which it is appropriate to return here.
Firstly, the firm endeavored to demonstrate the admissibility of the request
To do so, it was first necessary to demonstrate the interest of the professional cab union to act, which did not pose any particular difficulty insofar as the union is responsible, by its statutes, for defending the professional interests of its members.
However, in this case, the actions of the Mayor and Ms. X unquestionably harmed the cab profession by issuing the latter a second parking permit in violation of the law of October 1, 2014.
The union of cab professionals therefore had a definite interest to act before the administrative judge.
It was then necessary to show that (i) the request for withdrawal as well as (ii) the request to declare the disputed orders null and void were in themselves admissible.
Concerning the request to withdraw the orders
Article L. 242-1 of the Code des relations entre le public et l’administration (CRPA) provides that the administration may only repeal or withdraw a decision that creates rights at the request of a third party if it is illegal and if the repeal or withdrawal occurs within four months of the decision being made.
In the present case, Cabinet Goldwin had sent an ex gratia appeal on behalf of the professional cab union to the Mayor of the commune on August 6, 2019, after learning that the latter had been found guilty of forgery in public writing by the homologation order of the enforcement judge of the TGI of Digne-les-Bains.
Since the disputed ordinances were issued by the Mayor in 2014, the request for withdrawal thus came 5 years after their adoption, which is much longer than the time limit provided for by Article L. 242-1 of the CRPA.
However, the Code of Relations between the Public and the Administration provides for a derogation from this article, set forth in Article L. 241-2, according to which a unilateral administrative act obtained by fraud may be repealed or withdrawn at any time. The Conseil d’Etat has moreover had occasion to recall these provisions on numerous occasions (CE, August 16, 2018, No. 412663; CE, April 26, 2018, No. 410019; CE, February 5, 2018, No. 407149 and 407198).
Concerning the request to declare the decrees null and void
Moreover, it is a constant jurisprudence that when an administrative act is vitiated by a defect of such gravity that it affects not only its legality but its very existence, the petitioner is well-founded to ask the judge to declare it null and void (CE, February 28, 1986, no. 62206; CE, 9th and 10th sub-sections combined, March 18, 2015, no. 367491).
In addition, the union had sent the mayor an ex gratia appeal for the withdrawal of the disputed decrees.
An implicit decision of rejection had thus arisen, due to the silence kept by the Mayor, on October 8, 2019. The union therefore had a period of two months in which to file an appeal with the Marseille Administrative Court.
The union’s request was therefore admissible in every respect.
Second, the firm set out to demonstrate the fraudulent nature of the municipal decrees
The parking permits issued constituted forgeries of a public document.
Article 441-1 of the Penal Code provides that a forgery constitutes any fraudulent alteration of the truth likely to cause damage and accomplished by any means whatsoever, in a writing or any other medium of expression of the thought which has as its object or which can have as its effect to establish the proof of a right or a fact having legal consequences.
According to article 441-2 of the same Code, forgery can be committed in a document issued by a public administration for the purpose of granting an authorization, in particular.
In this case, in order to escape the provisions of the law of October 1, 2014 coming to prohibit the granting of several parking permits to the same cab operator, the Mayor voluntarily backdated the municipal orders, which he himself admitted.
The fraudulent nature of the decrees was therefore obvious.
In addition, following a complaint for forgery in public writing filed by the union in April 2018, the Mayor had been found guilty of falsifying the bylaws by a homologation order of the enforcement judge of the TGI of Digne-les-Bains on 18 June 2019.
That being the case, the contested decrees were in any case irregular since they had been issued on September 25, 2014, i.e. prior to the notification of the advisory opinion of the departmental commission of cabs and small delivery vehicles, which occurred on September 30, 2014.
Third, 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 ordinances was obvious, the Mayor was obligated to withdraw the fraudulent parking permits that he had granted.
Consequently, he could not refuse to use his power to withdraw the said permits.
His implicit decision to reject was therefore tainted by illegality.
Thus, by decision of October 11, 2022, the Administrative Court of Marseille, considering that the orders of September 25, 2014 were vitiated by a defect of such gravity as to affect their legality and their very existence.
Consequently, the Tribunal ruled that they constituted acts that were null and void and could not be considered to have created a vested right for the benefit of their beneficiary, even if she had been acting in good faith, nor of third parties.
It also held that, since the withdrawal of the two decrees could not be considered as having an excessive impact on the interests of the municipality, it was obliged to withdraw them and that the implicit refusal to withdraw the decrees that had been opposed to the syndicate should therefore be annulled.
Accordingly, the Tribunal annulled the implicit decision by which the Mayor rejected the request for withdrawal of the two orders dated September 25, 2014 submitted by the professional cab union.
In addition, the Tribunal ordered the commune to pay the union the sum of €2,000 for its legal fees.