It obviously poses no problem when - fortunately this is the general case - there is only one expert or when the expert, after having been authorized, has had recourse to a sapitor.
The report includes the record of the physical operations and must record the written or oral observations made by the parties during the operations.
It then includes the reasoning which, in the opinion of the expert, justifies its conclusions.
Finally, it contains the conclusions of the expert who are his answer to the questions asked and only those ones. This answer should appear at the end of the report and be presented clearly and briefly. The most common practice is to pick up each of the mission's points in turn and briefly answer them, referring as necessary to the developments in the body of the report.
The report should not be burdened with reference documents (correspondence, exhaustive results of analyzes, bibliographies, etc.). These documents find their place in consolidated annexes, if necessary, in a separate volume. In addition, only useful parts must be attached to the report.
If the expert has been authorized to call on the assistance of a sapper, he is responsible for assessing the answers he provides and incorporating into his report the conclusions of the latter.
The work of the sapper must also be attached in its entirety as an appendix to the expert report.
The report must be filed in the Registry within the prescribed time in duplicate The expert must notify the report in copy to the parties
With the agreement of the parties, this notification may be effected by electronic transmission
The parties are invited by the registry of the court to provide their observations within one month.
Article R 621-10 of the same code is supplemented by the following words: "and in particular to pronounce on the observations collected pursuant to Article R 621-9. "
it can be decided by the court, it is exceptional in practice.
Fees, fees and disbursements
1. Fees and reimbursements of expenses to which the expert is entitled
Experts and Sapeurs are entitled:
- a fee,
- the reimbursement of their expenses and disbursements.
Fees (fees) correspond to the personal work of the expert or sapper: study of the file, setting the net of the report, deposit of the report, various approaches for the accomplishment of the mission.
The criteria for determining the amount of the fees are: the difficulty of the operations, the importance, the usefulness and the nature of the work of the expert or sapper. There is no scale.
B. Fees and disbursements
"Fees and disbursements" include transportation costs, postage costs, photocopying fees, etc. ... They must be accompanied by supporting documents. In particular, the expert can not claim for this purpose the reimbursement of a lump sum of overhead costs, corresponding to the deduction of part of his fixed operating costs: these costs are already included in his fees.
The expert must be careful not to expose excessive costs to the issue of the dispute because it would be exposed to the risk that they would not be reimbursed. In case of hesitation, it is possible for him to seize the judge who ordered the expertise.
Article R.621-11 of the Administrative Justice Code is amended as follows:
- - the second paragraph is replaced by the following:
" Each of them attaches to the report a statement of their expenses, expenses and disbursements. "
- - in the fourth paragraph are added, after the words:
" of the nature of the work provided by the expert or the sapper ", the words" and the steps taken to comply with the deadline mentioned in Article R 621-2 "
- - the following paragraphs are added:
- " If there are several experts, or if a sapper has been appointed, the order mentioned in the preceding paragraph clearly shows the amount of fees and fees fixed for each.
- " Where the president of the court intends to fix the remuneration of the expert at an amount lower than the amount requested, he must first inform him of the elements he proposes to reduce and the reasons he adopts for that purpose, and invite him to comment. "
Value added tax
Experts who are self-employed as service providers are subject to value-added tax under common law conditions.
In a response of January 15, 2008, the Minister of Justice, Minister of Justice, specified that " exempt medical benefits (VAT) can only be understood as those which cover a therapeutic purpose, that is to say, those whose purpose is to prevent, diagnose, treat and, as far as possible, cure diseases or abnormalities of health. As a result, the medical assessments carried out by retired doctors (or not) which do not have such a purpose can not benefit from the exemption tax, being specified by the fact that the doctor acts as expert committed by a court has no bearing in this regard. "
If the expert is liable for VAT, he must pay it both for his fees and the reimbursement of his expenses, the taxable amount being constituted by all sums received in return for the provision of services. He must, therefore, mention the amount of his fees and expenses exclusive of tax, and add VAT at the rate in force.
If the expert benefits from the basic deductible (when the annual amount of his fees and expenses does not exceed a limit fixed each year by the law of finances, according to article 293 B of the CGI), he is exempted from the payment of VAT ; he must then mention, on the one hand, the amount of his fees (without VAT) and, on the other hand, the amount of his VAT expenses included, since he will not be able to deduct the amount of the tax paid under them. The sum that will be allocated to it will correspond to the total of these two amounts.
2. The procedure: the case of an expert assessment ordered in the context of the judgment of a dispute on the merits
It is necessary to stop at two very distinct operations:
liquidation (or taxation) which fixes the sums to which the expert is entitled, the charge of the expenses of the appraisal, which designates the debtor of these sums.
It is made by the president of the jurisdiction whose so-called "taxation" order is an administrative act.
It intervenes after the filing of the expert report.
- - Taken after consultation with the president of the court, the order fixes the fees and stops, on justifying documents, the amount of the expenses and disbursements to refund to the expert. The chairman may ask the expert for further explanations if he considers it necessary.
- - The order need not be reasoned. It is executory as of its pronouncement and can be recovered against the private or public persons by the means of the common right. The debtor will be identified during the judgment on the merits.
This order may be contested by the parties and by the expert within one month of notification, before the court to which the author of the order belongs.
The petition is sent by the president of the court to an administrative tribunal in accordance with an allocation table issued by the president of the litigation section.
Except in the case of a clerical error which would require a simple correction, it is useless to ask the President of the jurisdiction to modify his order because he has no jurisdiction to do so.
The first paragraph of Article R 761-5 of the Administrative Justice Code is replaced by the following provisions:
" The parties, as well as, if necessary the expert, may challenge the order referred to in Article R 761-4 before the court to which the author of the order belongs.
Except when the order is issued by the president of the litigation section of the Conseil d'Etat, the petition shall be forwarded without delay by the president of that court to an administrative tribunal in accordance with an allocation table drawn up by the president of the litigation.
"The president of the jurisdiction to which the author of the order belongs or, in the Council of State, the president of the litigation section is called upon to submit written observations on the merits of the appeal. "
B. The cost of the expertise
It is determined by the judgment on the merits and - in principle - attributed to the losing party or who has withdrawn. It is this judgment that allows the expert to be paid.
C. Legal aid
When the costs are borne by a party admitted to legal aid, it is the State which must pay the costs - in whole or in part - according to whether the aid is total or partial. Regulation by the state obeys the same procedure as before the judicial courts.
3. The procedure: case of the referred
In this case, the tax order - unlike the previous case - designates the party or parties who will bear the costs and fees. It is executory as of its pronouncement and can be recovered against the private or public persons by the means of the common right.
At trial on the merits - if there is one - the judge may change the final charge of the expert's fees.
Art. R.621-13 of the Administrative Justice Code is amended as follows:
1 ° - the first paragraph is replaced by the following provisions:
"When the expert report has been ordered on the basis of Title III of Book V, the president of the court or court, after consulting, if necessary, the delegated magistrate, or, at the Council of State, the president of the The litigation section fixes the costs and fees by an order made in accordance with the provisions of Articles R 621-11 and R 761-4. This order designates the party or parties who will be responsible for these fees and expenses. It is enforceable as soon as it is pronounced, and can be recovered against private or public persons by common law means. It may be the object, within one month from its notification, the recourse provided for in Article R 761-5. "
2 ° - the second paragraph is replaced by the following provisions:
" In the cases mentioned in the first paragraph, the provisions of Articles R 621-12 and R 621-12-1 may be applied. "
It is up to the expert to directly ask the person mentioned in the judgment or order to pay him the amount of fees and reimbursements of expenses determined by the judge.
A. In the event of the debtor's ill-will
If the assessment was ordered in the context of a dispute on the merits, it is the judgment that decides the dispute that designated the party to bear the costs of expertise. If this party is a public person, the expert may apply to the assigning accountant (for the State) or to the prefect or the supervisory authority (for a local authority or a public institution) on the basis of the Article 1 of Law No 80-539 of 16 July 1980, for payment to be made.
If the debtor is a private person, the expert may apply to a bailiff who will continue the enforcement of the debt.
If the costs have been charged to one of the parties by the taxation order (case of the expert report ordered in summary proceedings), the order determining the debtor party is enforceable as soon as it is pronounced and can be recovered against private or public persons by common law means.
B. In the event of insolvency of the debtor
If the debtor is insolvent, the expert has, on the basis of no-fault liability, an action against the State, because of his status as a collaborator of the public service of justice. He must prove that he has previously performed all the necessary steps to obtain payment of his costs and fees by the debtor and that he has been unable to recover them. Indeed, the debtor must be truly insolvent and not only in bad faith.
Requests for State responsibility must be addressed to the Council of State, for the attention of the Secretary General of the Council of State, with a view to an amicable settlement.
1 - The technical opinion
The Judging Panel may instruct the Consultant to provide a simple technical advice on a few specific points. The case file is not given to the consultant who does not have to operate according to an adversarial procedure.
The notice is recorded in writing. It is communicated to the parties by the court. The statement of costs and fees is attached to the notice.
In Chapter V of Title II of Book VI of the same Code, after Article R 625-1, two articles R.652-2 and R.625-3 are inserted worded as follows:
" Art. R 625-2 - Where a technical issue does not require complex investigations, the judgment may charge the person who commits to provide him with a simple notice on the points it determines. The consultant, to whom the record of the proceeding is not not submitted, does not have to operate in accordance with an adversarial procedure with regard to the parties. "
" The notice is recorded in writing. It is communicated to the parties by the court.
" The provisions of Articles R 621-3 to R 621-6, R 621-10 to R 621-12-1 and R 621-14 are applicable to technical opinions. "
" Art. R 625-3 - The training panel may invite any person whose competence or knowledge would be such as to provide useful information on the solution to be given to a dispute, to make general observations on the points that it determines.
" The notice is recorded in writing. It is communicated to the parties.
" Under the same conditions, any person may be invited to make oral submissions to the panel responsible for the investigation or the formation of the judgment, the parties duly convened. "
2- Buildings threatening ruin - (IMR)
Missions targeting ruinous or unhealthy buildings may be ordered by the administrative courts under Articles L51-1-1 et seq. And L521-1 et seq. Of the Building and Housing Code.
These missions type IMR (buildings threatening ruin) are carried out in the emergency according to Article L511-3 of the same code.
The turnaround time is 24:00.
It is therefore necessary that the registry informs you by phone to have to perform this type of mission to immediately communicate your availability.
As the rules of recusation are equally applicable, it is important to know the parties involved and to inform the registry of any difficulties.
Before the notification by the court of the order, by mail with AR, the mission is sent by computer broadcast.
Upon receipt, the expert makes an appointment by telephone with the applicant who will inform other parties of the day and time of the contradictory meeting on the premises.
At the end of the meeting, the expert draws up his report, which he notifies directly to the parties. He sends two copies to the registry of the Tribunal which committed it with his bill of costs and honorary.
He can not go beyond the scope of his mission. If necessary, during his visit, he is obliged to "report other facts revealing the insecurity of the building"; in these circumstances, the Mayor may use another procedure to have them analyzed.
The report of the expert can conclude that there is a serious and imminent danger or a simple danger. As evacuation of the building can be ordered, the report must be accurate.
Depending on the case, the mayor orders the provisional measures necessary to guarantee the security and fixes the time of realization of this work. He may send a copy to the expert for information.
According to the mission, the expert may be called upon to verify the implementation of these provisional measures and their date of completion. It can not be a project management mission or final work.
The administrative court establishes a taxation order which fixes the amount and specifies the party who must pay it.
3 - Public inquiry
The role, mission and report of the Investigating Commissioner are not developed in this guide.
It is important to stay close to the president of the jurisdiction to follow his instructions for the execution of the mission entrusted, in compliance with the code of administrative justice.
Members of the Administrative Procedures Committee:
- President Bernard Leiceaga Member of the Board of Directors
- Members Jean Paul Beti Chairman of the company of experts at the Administrative Court of Paris-Versailles
- Michel Chanzy Member of the board of directors
- Bruno Duponchelle Secretary General of CNCEJ
- Chairman of the company of experts at the Administrative Court of Douai
- Robert Giraud Former Chairman of the Company of Experts at the Administrative Court of Marseille
- Gilbert Patierno Former Chairman of the Company of Experts at the Administrative Court of Douai
Opinion given on the Guide by Mr. DE FOMBRESSIN, Legal Adviser CNCEJ
The Guide of the expert was given to Mr STIRN, State Councilor, President of the Litigation Section of the State Council on 02/06/2010