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Délégation de service public : du contrat à l'habilitation institutionnelle

Abstract : The current meaning of the notion of delegation of public utility in French Law rest on too narrow an approach, which is based on two axioms : risk and contract. This conception fails to give relevant limits to this notion, whose boundaries with public procurements and partnership contracts turn to be unclear. Neither does it reflect the variety of contractual tools that can be used to implement it. The analytical study of traditional models (concession, affermage, régie intéressée, gérance) and different types of complex contractual arrangements emphasizes this observation and calls for an urgent redefinition of the notion. Redefining the notion first entails objectively taking into account non-contractual modes of structural delegation of public utility through hypotheses of structural delegation (to which the EC definition of institutionalised PPPs takes us back) and unilateral delegation of public utility, which shows the very diversity of the delegation process. It then calls for a new approach of the notion in which the public utility (apprehended as an institution) remains the only element of unity. Going beyond the controversy surrounding unilaterality and contract, the delgation of public utility thus materializes through an act of capacitation that creates an objective legal situation whose regulatory nature precisely stems from its relationship whith the very organization of the public utility. Transcended by its purpose, this institutional capacitation entails the application of a specific legal system. As such, it is gradually emerging - in French law as in EC law - as an instrument of regulation whose function is precisely to reconcile the principles of public utility whith the demands inherent to a competitive environment
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Submitted on : Tuesday, April 24, 2018 - 4:07:03 PM
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  • HAL Id : tel-01776840, version 1



David Melloni. Délégation de service public : du contrat à l'habilitation institutionnelle. Science politique. Université Nancy 2, 2006. Français. ⟨NNT : 2006NAN20013⟩. ⟨tel-01776840⟩



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