إشكالية الطبيعة القانونية لعقد امتياز المرفق العام في الجزائر

الملخص EN

This scientific article deals with a question that has aroused a greatjurisprudentialdebate in France and Algeria, Is it the nature of the concession contract as a mode of public service management betweenbeing a contract? Or an administrative decision? Ora purelyorganizationalact? and whatisitsspecificity in each case? The study of the legal nature of the concession contractaims to know the type of legalacts to whichitbelongs, thatis to saythat the public authorities use it in the management and operation of the public service, especiallysince the classic management depends on unilateralacts of the public authority in the management and operation of public service, Doesthisold new legal system `` The concession contract '' of an organizational nature subject to the unilateralwill of the public authority, or isit a matter of a contractual nature whichdepends on the concordance of twowisheswhichconstitute a contract in the full sense of the term? We manage to qualify the concession contract as a "mixed act" containingcontractual and regulatory provisions, but the regulatory nature is dominant; Because the administration is the one responsible for managing the public service and can delegateit to individuals to increaseefficiency and improve the quality of the service provided, and not atotal privatization of service throughwhich the administration gives up its full responsibility in the management of public service, sothat the regulatory provisions prevail over the contractual provisions, sothat the contractual nature isseenonly as a structure and a framework The administration has usedit to operateits public services.

Eachcontract varies from the others in terms of the dominance of contractual or regulatory clauses from one area to anotherdepending on the vitality of each area, but the predominance in Algeria is the domination of regulatory clauses.

For example, wefind, for example, executivedecree 18/199 relating to the local public service delegationconfirmsmanyorganizational clauses, for exampledetermining The maximum duration of the concession contractisthirtyyears, the need to respect the principles of public service, surveillance, cancellation, etc.