Marchés publics, adieu seuil de 20.000 €, re-bonjour seuil de 4.000 €

FlickR - Nuit blanche - evymoonPar arrêt du 10 février 2010 ((CE, 10 février 2010, M. P., n°329100.)), le Conseil d’Etat a annulé les dispositions du décret n°2008-1356 du 19 décembre 2008 relevant de 4 000 à 20 000 euros le seuil en deçà duquel un marché public peut être passé sans publicité ni concurrence préalable.

L’article 28 du code des marchés publics prévoit une procédure adaptée permettant au pouvoir adjudicateur de passer un marché sans publicité ni mise en concurrence préalable si les circonstances le justifient ou si le montant estimé de ce marché est inférieur à un certain seuil. Or, l’article 1er dudit décret a modifié ce seuil en le faisant passer de 4 000 euros à 20 000 euros. C’est précisément le relèvement de ce seuil qui a été attaqué devant le Conseil d’Etat.

La Haute juridiction a estimé que les principes de la commande publique avaient été violés, soient la liberté d’accès à la commande publique, l’égalité de traitement des candidats et la transparence des procédures (article 1er du décret).

Il a ensuite estimé que ces principes n’interdisent pas de prévoir une réglementation qui autorise, le cas échéant, la passation de marchés sans publicité, voire sans mise en concurrence, lorsque ces formalités sont impossibles ou manifestement inutiles en raison de l’objet du marché, de son montant ou du degré de concurrence dans le secteur considéré.

Il a été jugé par suite que les dispositions relevant, d’une manière générale, le seuil en deçà duquel il peut être recouru à une procédure adaptée, méconnaissent ces principes.

Faisant application de la jurisprudence AC ! et afin de ne pas remettre en cause les innombrables marchés d’ores et déjà passés sur le fondement du nouveau seuil, le Conseil d’Etat a précisé que l’annulation des dispositions du décret entrepris ne prendrait effet quà compter du 1er mai 2010, sous réserve des actions engagées contre des actes pris sur leur fondement.

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