LexInter | November 21, 2017 | 0 Comments


CHAPTER IV: Public service delegations.

Section 1: General provisions.

Article 38
Modified by Law n ° 2001-1168 of December 11, 2001 art. 3 (jorf December 12, 2001).


A public service delegation is a contract by which a legal person governed by public law entrusts the management of a public service for which it is responsible to a public or private delegate, whose remuneration is substantially linked to the results of the operation of the service. . The delegatee may be responsible for constructing works or acquiring goods necessary for the service.

The public service delegations of legal persons governed by public law are subject by the delegating authority to a publicity procedure allowing the presentation of several competing offers, under the conditions provided for by a decree in the Council of State.

The public authority draws up the list of candidates admitted to submit an offer after examination of their professional and financial guarantees and their ability to ensure the continuity of the public service and the equality of users before the public service.

The local authority sends each candidate a document defining the quantitative and qualitative characteristics of the services as well as, if applicable, the pricing conditions for the service provided to the user.

The offers thus presented are freely negotiated by the authority responsible for the delegating public body which, at the end of these negotiations, chooses the delegatee.

Article 39


Article 52 of the orientation law n ° 92-125 of February 6, 1992 relating to the territorial administration of the Republic is repealed.

Article 40
Modified by Law n ° 95-127 of February 8, 1995 art. 1, 4 (jorf 9 February 1995 MLoi 96-142 1996-02-21 art. 12 jorf 24 February 1996)


Public service delegation agreements must be limited in duration. This is determined by the community according to the services requested from the delegatee. When the installations are the responsibility of the delegatee, the delegation agreement takes into account, for the determination of its duration, the nature and the amount of the investment to be made and cannot in this case exceed the normal depreciation period of the installations implemented. In the field of drinking water, sanitation, household waste and other waste, public service delegations may not last longer than twenty years except for prior examination by the treasurer-payer general, at the initiative of the delegating authority, proof of exceeding this period. The conclusions of this examination are communicated to the members of the competent deliberating assembly before any deliberation relating to the delegation. “

A delegation of service can only be extended:

  1. a) For reasons of general interest.The duration of the extension cannot then exceed one year;
  1. b) When the delegatee is forced, for the proper performance of the public service or the extension of its geographical scope and at the request of the delegator, to make material investments not provided for in the initial contract, such as to modify the general economy of delegation and which could only be amortized over the remaining term of the agreement by a clearly excessive price increase.[Provisions declared not to be in conformity with the Constitution by decision of the Constitutional Council n ° 92-316 DC of January 20, 1993.]

If the delegation has been granted by a public person other than the State, the extension mentioned in a or b can only take place after a vote of the deliberating assembly.

Public service delegation agreements may not contain clauses by which the delegatee takes charge of the performance of services or payments unrelated to the subject of the delegation.

The amounts and methods of calculating entry fees and fees paid by the delegatee to the delegating authority must be justified in these agreements.

The agreement stipulates the tariffs payable by users and specifies the impact on these tariffs of the parameters or indices which determine their evolution.

The terms of application of this article are fixed, as necessary, by decree of the Council of State.

Article 40-1
Created by Law n ° 95-127 of February 8, 1995 art. 2 (jorf 9 February 1995 MLoi 96-142 1996-02-21 art. 12 jorf 24 February 1996)


The delegatee produces each year before June 1 to the delegating authority a report including in particular the accounts retracing all the operations relating to the execution of the public service delegation and an analysis of the quality of service. This report is accompanied by an appendix allowing the delegating authority to assess the conditions of execution of the public service.

Article 41


The provisions of this chapter do not apply to public service delegations:

  1. a) When the law establishes a monopoly for the benefit of an enterprise;
  1. b) When this service is entrusted to a public establishment [Provisions declared not to be in conformity with the Constitution by decision of the Constitutional Council n ° 92-316 DC of January 20, 1993] and on condition that the delegated activity appears expressly in the statutes of the establishment [Provisions declared non-compliant with the Constitution by decision of the Constitutional Council n ° 92-316 DC of January 20, 1993].
  1. c) When the amount of sums due to the delegatee for the entire duration of the agreement does not exceed 106,000 Euros or the agreement covers a period not exceeding three years and relates to an amount not exceeding 68,000 Euros per year .However, in this case, the delegation project is subject to prior publicity as well as to the provisions of article 40. The terms of this publicity are fixed by decree of the Council of State.
  1. d) When the delegation constitutes a mandate to manage social rental housing entrusted to a low-rental housing organization.

Section 2: Provisions applicable to local authorities, to groupings of these authorities and to their public establishments.

Article 42
Modified by Law n ° 96-142 of February 21, 1996 art. 12 (jorf February 24, 1996)


The deliberative assemblies of local authorities, their groups and their public establishments decide on the principle of any delegation of local public service. They rule on the basis of a report presenting the document containing the characteristics of the services to be provided by the delegatee.

Article 43
Modified by Law n ° 2001-1168 of December 11, 2001 art. 3 (jorf December 12, 2001).


After a decision on the principle of delegation, an advertisement and a collection of offers are carried out under the conditions provided for in the third and fourth paragraphs of article 38.

The envelopes containing the offers are opened by a commission composed of:

  1. a) In the case of a region, the local authority of Corsica, a department, a municipality of 3,500 inhabitants or more and a public establishment, by the authority empowered to sign the public service delegation agreement or his representative, chairman, and by five members of the deliberative assembly elected from within it with proportional representation to the highest remainder;
  1. b) In the case of a municipality of less than 3,500 inhabitants, by the mayor or his representative, president, and by three members of the municipal council elected by the council with proportional representation to the largest remainder.

The election of alternates in a number equal to that of full members is carried out according to the same procedures.

The accountant of the community and a representative of the Minister responsible for competition also sit on the commission in an advisory capacity.

In view of the committee’s opinion, the authority empowered to sign the agreement freely initiates any useful discussion with one or more companies that have submitted an offer. It informs the deliberative assembly of the choice of the company it has made. It sends it the report of the commission presenting in particular the list of companies admitted to submit an offer and the analysis of their proposals, as well as the reasons for the choice of the candidate and the general economy of the contract.

Article 44
Modified by Law n ° 96-142 of February 21, 1996 art. 12 (jorf February 24, 1996)


At least two months after referral to the commission mentioned in article 43, the deliberative assembly decides on the choice of the delegatee and the delegation contract.

The documents on which the deliberating assembly decides must be sent to it at least fifteen days before its deliberation.

Article 45
Modified by Law n ° 96-142 of February 21, 1996 art. 12 (jorf February 24, 1996)


The use of a direct negotiation procedure with a specific company is only possible if, after a call for competition, no offer has been made or has been accepted by the public authority.

Article 47
Modified by Law n ° 96-142 of February 21, 1996 art. 12 (jorf February 24, 1996)


The provisions of articles 38 and 42 to 46 of this law are applicable to agreements signed as of March 31, 1993.

They do not apply when, before the date of publication of this law, the empowered authority has expressly approached a delegatee and the latter has, in return, initiated studies and preliminary work.

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