Le contrôle de légalité

Le contrôle de légalité a posteriori est la procédure par laquelle le préfet, représentant de l’Etat dans le département ou la région, vérifie la conformité des actes de la collectivités territoriales et leurs établissements publics avec les dispositions législatives et réglementaires en vigueur.

Il a succédé à la tutelle administrative de l’Etat sur les actes des collectivités territoriales qui a été supprimée par la  loi 82-213 du 2 mars 1982 relative aux droits et libertés des communes, des départements et des régions. Cette tutelle conférait au représentant de l’Etat des pouvoirs importants, notamment celui d’annuler directement un acte qu’il estimait illégal.

Désormais, le représentant de l’Etat qui estime un acte illégal peut seulement déférer celui-ci devant le Tribunal administratif qui est seul compétent pour prononcer l’annulation de l’acte. Cette procédure, appelée déféré préfectoral, intervient généralement à l’issue d’un recours gracieux infructueux auprès de la collectivité concernée.

Si le contrôle de légalité ne relève pas à proprement parler du contentieux administratif, nous choisissons de le traiter dans cette section dans la mesure où il peut aboutir à l’exercice du déféré préfectoral dont le régime est proche du recours pour excès de pouvoir.

Dans la pratique, il y a peu de déférés préfectoraux, sur les dernières années la moyenne s’élève à environ 1000 par an pour + de 5.000.000 d’actes transmis.

Le contrôle de légalité peut aujourd’hui être analysé comme un moyen de garantir l’équilibre des pouvoirs entre l’Etat et les collectivités. De plus, il comporte une part croissante de conseil juridique très apprécié par les collectivités dans un monde où l’enchevêtrement des dispositions législatives et réglementaires ainsi que la complexité des procédures suscitent un grand besoin d’expertise.

 

LES ACTES SOUMIS A L’OBLIGATION DE CONTROLE

Tous les actes ne sont pas soumis à l’obligation de contrôle. En application de l’article L2131-4 CGCT sont exclus du contrôle :

  • Les actes pris par les autorités communales au nom de l’Etat (par ex, actes d’état civil ou actes relatifs à des mesures de sûreté générale)
  • les actes relevant du domaine privé, tels ceux relatifs à la gestion du domaine privé communal.

Les lois n°2004-809 modifiée du 13 août 2004 relative aux libertés et responsabilités locales et n°2007-1787 du 20 décembre 2007 relative à la simplification du droit ont réduit considérablement le nombre d’actes soumis à transmission.

En application de l’article L2131-4 du CGCT les actes soumis à cette obligation sont :

1° Les délibérations du conseil municipal ou les décisions prises par délégation du conseil municipal en application de l’article L. 2122-22 à l’exception :

  1. a) des délibérations relatives aux tarifs des droits de voirie et de stationnement, au classement, au déclassement, à l’établissement des plans d’alignement et de nivellement, à l’ouverture, au redressement et à l’élargissement des voies communales ;
  2. b) des délibérations relatives aux taux de promotion pour l’avancement de grade des fonctionnaires, à l’affiliation ou à la désaffiliation aux centres de gestion ainsi qu’aux conventions portant sur les missions supplémentaires à caractère facultatif confiées aux centres de gestion.

2° Les décisions réglementaires et individuelles prises par le maire dans l’exercice de son pouvoir de police. En sont toutefois exclues :

– celles relatives à la circulation et au stationnement ;

– celles relatives à l’exploitation, par les associations, de débits de boissons pour la durée des manifestations publiques qu’elles organisent ;

3° Les actes à caractère réglementaire pris par les autorités communales dans tous les autres domaines qui relèvent de leur compétence en application de la loi ;

4° Les conventions relatives aux emprunts, aux marchés et aux accords-cadres, à l’exception des conventions relatives à des marchés et à des accords-cadres d’un montant inférieur à un seuil défini par décret, ainsi que les conventions de concession ou d’affermage de services publics locaux et les contrats de partenariat ;

5° Les décisions individuelles relatives à la nomination, au recrutement, y compris le contrat d’engagement, et au licenciement des agents non titulaires, à l’exception de celles prises pour faire face à un besoin lié à un accroissement temporaire ou saisonnier d’activité, en application des 1° et 2° de l’article 3 de la loi n° 84-53 du 26 janvier 1984 portant dispositions statutaires relatives à la fonction publique territoriale ;

6° Le permis de construire et les autres autorisations d’utilisation du sol et le certificat d’urbanisme délivrés par le maire ou le président de l’établissement public de coopération intercommunale, lorsqu’il a reçu compétence dans les conditions prévues aux articles L. 422-1 et L. 422-3 du code de l’urbanisme ;

7° Les ordres de réquisition du comptable pris par le maire ;

8° Les décisions relevant de l’exercice de prérogatives de puissance publique, prises par les sociétés d’économie mixte locales pour le compte d’une commune ou d’un établissement public de coopération intercommunale.

 

La transmission des actes soumis à cette obligation leur permet d’acquérir un caractère exécutoire[1] dès qu’il a été parallèlement procédé à leur publication ou affichage ou à leur notification aux intéressés.

En dehors de la liste des actes soumis à l’obligation de transmission, le préfet peut, en vertu de l’article L2131-3 al 2 du CGCT, demander communication des autres actes pris par les autorités communales à tout moment, c’est ce que l’on appelle « le pouvoir d’évocation ». En cas d’illégalité, il peut également déférer ces actes au tribunal administratif dans un délai de deux mois à compter de la date de leur communication.

  

LES SUITES EVENTUELLES DU CONTROLE

Si l’examen de l’acte sur le fond et la forme conduit à relever des irrégularités, le préfet peut adresser à la collectivité, ou l’établissement public, un recours gracieux dans un délai de deux mois à compter de la réception de l’acte, en préfecture ou en sous-préfecture, en précisant la ou les illégalités dont l’acte est entaché et en demandant sa modification ou son retrait.

Toutefois, le préfet n’est pas tenu d’exercer un recours gracieux auprès de la collectivité. Il peut déférer directement devant le tribunal administratif un acte qu’il estime contraires à la légalité dans les deux mois suivant leur transmission.

En application de l’article L2131-6 al 3, le préfet peut assortir son recours d’une demande de suspension. « Il est fait droit à cette demande si l’un des moyens invoqués paraît, en l’état de l’instruction, propre à créer un doute sérieux quant à la légalité de l’acte attaqué. Il est statué dans un délai d’un mois. »

En matière d’urbanisme, de marchés et de délégation de service public, la demande de suspension formulée par le représentant de l’Etat dans les dix jours à compter de la réception de l’acte entraîne la suspension de celui-ci jusqu’à ce que le président du tribunal administratif ou le magistrat délégué par lui ait statué.

Enfin, aux termes de l’article L.2131-6 al 5 si l’acte attaqué « est de nature à compromettre l’exercice d’une liberté publique ou individuelle, le président du tribunal administratif ou le magistrat délégué à cet effet en prononce la suspension dans les quarante-huit heures »

Toutes les décisions rendues le tribunal administratif sont naturellement susceptibles de voies recours.

 

LA TELETRANSMISSION DES ACTES

Dans un souci de modernité et de simplification, les collectivités ont désormais la possibilité de transmettre les actes soumis au contrôle de légalité par voie de télétransmission depuis le programme ACTES (pour Aide au contrôle dématérialisé). Le décret en Conseil d’Etat n°2005-324 du 7 avril 2005 en fixe les modalités.

 

Pour le fonctionnement de la télétransmission : http://www.collectivites-locales.gouv.fr/actes-0

[1] Qui peut être mis à exécution, qui donne pouvoir de procéder à une exécution

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