The Delegation of Public Utility Services: Legal Contexts

Based on a review of recent legislation and case law, this paper describes the emergence of a new notion of “delegation of public utility services.” It first discusses the distinction introduced, in the French context, between the legal notions of procurement and delegation, and between various forms of delegation. The same issue is then examined in the European law (directives and court decisions). A convergence of legal notions can be observed: the European law now clearly distinguishes between procurement contracts and franchise contracts. Finally, the paper envisages future changes that might result from the confrontation of public utility law with other branches of the law. Competition law might lead judges to rule on the duration of contracts, the granting of exclusive rights and the justification for public services fees. An issue at stake concerns the possibility of cross-subsidies. Consumption law will probably lead to alterations of the prerogatives of services providers on service regulations. Finally, public property law will affect the rights of service providers in their activity.