Much of French infrastructure in the transport, water, waste disposal and other sectors was developed using public private partnership (PPP) techniques. Sophisticated legal tools were devised to permit this development and to ensure appropriate risk sharing, in particular the concession de travaux et de services publics. But it recently became clear that those tools have come insidiously to dominate their inventors and to prevent France, unless reform takes place, from pursuing the kind of PPP programme implemented in the UK and elsewhere.
French law distinguishes between delegations de service public (DSP), of which the principal example is the concession, and marches publics. The DSP is the contractual delegation by a public body to a private company of the responsibility for (so far as we are concerned) building infrastructure of a specified type and using it to carry out a public interest activity on terms that the private company’s remuneration is “substantially linked to the financial results of managing the activity”. This usually means that the company obtains payment from members of the public – as in the case of a toll road. Marches publics are contracts for the purchase by a public body of works, supplies or services.
