Hotel de la Collectivité (Robert Luckock photo)
~ Collectivité will appeal the decision ~
MARIGOT--The Administrative Court notified its decision to the Collectivité of St. Martin on Tuesday, March 10, informing it that its request for fair compensation for expenses incurred during the transfer of competences to the Collectivité in 2007, has been rejected.
The Collectivité maintains it is owed 71 million euros with interest in global compensation backdated since the transfer of competences for installation of the new Collectivité in 2007, arguing that the State grossly underestimated the amounts required due to the calculation method used.
The court gave the following reasons for the rejection: the inter-ministerial order of 22 April 2011, published in the Official Gazette on May 4, 2011, was the final verdict of the court in all its provisions as the amount of the social compensation allowance had been set.
In dismissing the Collectivité’s claim, the court considered that the latter did not demonstrate the State was at fault and more specifically demonstrate fraudulent intent.
The Collectivité in its release reminded of two essential points: The Collectivité’s claim has a serious basis. Secondly it suffers considerable damage every year, which is not disputed. In terms of social compensation, an allocation of 652,212 euros is paid annually, yet in order to correspond to the actual expenses of the Collectivité in 2006, an amount of 7,914,857 euros should be added each year since 2011.
The Collectivité is therefore asking for a review of the method of calculating the allocation for the future, as it is unfair that it should bear these calculation errors indefinitely. It notes that the court does not respond on this point. The Collectivité is also asking for the reimbursement of the sums owed to it. This is a legitimate claim of the Collectivité.
The Collectivité’s lawyer in this case, points out: "According to the court, we have not demonstrated the deliberate will of the State to deceive the Collectivité. But the prejudice is irremediable for the Collectivité if the method of calculation is not modified.
“The legitimate confidence of the Collectivité has been misled because in fact no verification or controls have been done, especially on the subject of the burden transferred to the Collectivité for social programmes without sufficient compensation. No one thought they could or should question the expert reports that were retained since the State arbitrated the debates.”
He added: “The texts in the Organic Law are clear. Any net increase in charges is accompanied by the transfer of the resources necessary for the normal exercise of these competences (Article LO 6371-4). These principles have not been respected.”
An ad hoc commission had been set up to evaluate the sum of the allocations from which the Collectivité should benefit, but none of the members of this commission verified the reliability of the data provided to the Collectivité.
However, the State represented by the Préfet and the Territorial Chamber of Accounts, had one member who chaired the commission and had access to all the accounts and all the data of the Department of Guadeloupe. This was not the case for the Collectivité of St. Martin which had no experience in the management of social assistance having never assumed this competence before, and whose expert mandated by it was denied access to the department's accounts. Thus, the Collectivité never had any statistical data at its disposal, as these data were muddled on the scale of Guadeloupe as a whole.
“As a guarantor of the fairness of the exchanges, the State had a duty to carry out these checks”, the Collectivité’s lawyer argued.
It was therefore only in 2017, after the publication of the report of the Territorial Chamber of Accounts on the management of the Collectivité of St. Martin for the period 2007-2016, that President of the Collectivité Daniel Gibbs, discovered these anomalies. This report revealed the gross error made when assessing the allocations.
“The State's intention is clear: It will not arbitrate between the two territories (St. Martin and Guadeloupe). No checks were made and no statistics were used as a basis for calculating the allocations. The Collectivité of St. Martin was sacrificed because the sharing of data was not organised. It was therefore a strategic choice that led to deceiving the people of St. Martin.
“Beyond this obvious institutional strategy, an entire territory was penalised and the future of the St. Martin people jeopardized. The impact of this is considerable. A fair financial assessment of the transfer of competences would have opened up a completely different future for St. Martin by giving it the sums really necessary for the installation of the new Collectivité to rise up and succeed in its public policies at the service of the general interest. The damage is therefore immense,” the Collectivité concluded.
