Public service delegation
The public service delegation , or DSP is a concept of French Droit, legal concept functional translating a secular practice of management per delegation of the public services. It is in addition about the most frequent mode of deputy management of the public services, the community in addition being able to choose a direct management of the service (one speaks then about management in Régie).
Definition and legal mode
Under the Law Murcef of the December 11th 2001, the DSP is the whole “of the contracts by which a person of public law entrusts the management of a public service for of which it with the responsibility with a public or private délégataire whose remuneration is substantially related to the turnover of the service”.
The definition of the public service delegation antagonistic of that of government contracts which are them, according to the law “of the contracts is concluded subject to payment between the capacities adjudicators and from the economic operators public or deprived to meet their needs as regards work, from supplies or service”.
The contract of public service delegation, whose legal mode is mainly defined with the article L 1411-1 and following of the general Code of the territorial collectivities, is thus distinguished legally from simple the contract of exploitation by its mode of remuneration substantially related to the turnover of the service. It is thus, for example, of the services of water and Assainissement or many public Transports.
Identifying information of the DSP
It are five, and are cumulative:
- delegating It
- the délégataire
- exploitation of a public service
- a mode of remuneration
It would not know to have there of public service delegation without contract of delegation concluded between the delegating authority and the délégataire. By extension, the devolution with the délégataire can be also made via a unilateral Administrative act (or unilateral nomination ).
In any event, the contractual act is a Administrative act because answering the three cumulative criteria necessary: it has as an aim the execution of a public service, delegating it is a public person, and the contract comprises clause exorbitant of the common right.
Delegating and the délégataire
Delegating is, according to the definition of the L1411-1 article of CGCT, a moral person of public law, whether it is the State, a community territorial or a public corporation.
The délégataire is not obligatorily an individual: it can be a question, in addition to natural person or morals of private law, of another moral person of public law, except (Article L1411-12 CGCT) the state enterprises in situation of monopoly of right.
The specific case of associations
However, the limit between the convention of subsidy instituted by article 10 of the law of the April 12th 2000 (the administrative authority and association are held to sign a convention in the event of subsidy of an amount, fixed by decree, currently of 23.000 euros) and the delegation of servive public is discussed, with the glance, especially, of the mode of remuneration of the DSP (related to the “turnover”). Jurisprudence and the doctrines could converge, in the case of associations, towards the thesis of “association at the public service of private organizations carrying on an activity of local and subsidized public interest”.
The case of the Companies of mixed economy
If the management of a SPIC (cleansing of water, management of waste, undertaking, etc) is the object first Sociétés of mixed economy, they can also be an administrative public service like the creation of a seedbed young innovating companies or of a Palais the music and congresses. The law Sapin of January 29th, 1993 envisaged exemptions concerning the SEM, but the Constitutional council censured this article in the name of the principle of equality.
The situation is thus relatively complex, since a company of mixed economy can, while being held mainly by a community, to claim with the attribution of a DSP, to even be made up Ad hoc .
Exploitation of a public service
The contract of delegation entrusts the management of whole or part of a public service to the délégataire. The Council of State had clearly given a report on this principle in an opinion the October 7th 1986 by estimating that “the administrative character of a public service does not prohibit with the qualified territorial collectivity to entrust the execution of it to individuals, provided however, that the service is not with the number of those which, by their nature or the will of the legislator, can be assured only by the territorial collectivity”.
Thus the missions raising directly of the exercise of prerogatives of public power (organization of elections, acts of registry office, management of certain helps, lodging medicalized sick people, etc) cannot be the object of such a delegation.
Contrary to the other contracts concluded by the State or the territorial collectivities, the delegation of Public service escapes the traditional framework from the Code des Marches Publics, the remuneration of the person receiving benefits - within the framework of a Government contract - being ensured by a price poured by the community. Whereas within the framework of a public service delegation the délégataire supports only the financial risk of the exploitation, this risk on the other hand is completely deferred on the community within the framework of a government contract. It is this difference vis-a-vis the incurred risks which explains the public service delegation is not subjected to the mode of the government contracts.
The public service delegation on the other hand is governed by the law Sapin n°93-122 of January 29th, 1993. This one preserved the old practice of free discussion between the candidate délégataire and the legal representative of the community, or " délégant" (mayor or president of EPCI), which makes it possible this last to choose the délégataire according to its own intuition (by the jurisprudential principle of the " intuitu personae ") in spite of the opinion of the commission. This procedure however imposed broad measurements of publicity and information. In fine , the deliberating assembly must approve the choice of the mayor or president of EPCI.
The convention of delegation knows mainly three forms (which are economic methods, without legal influence on the qualification of the last contract):
- the Leasing
- the concession
- the interested Governed .
- Public service
- Cost of competition
- National federation of the conceding communities and controls
- the site of the Monitor
- public Contracts
The Sport in FranceBy decree of the Council of State, certain sporting federations, approved by the ministry for Youth and the Sports, can receive, in accordance with the L.131-14 article of the Code of the sport, Délégation of public service mission after advisory opinion of the French Olympic committee.
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