La prise en compte par le droit des contraintes de financement des marchés de partenariats : Concilier flexibilité et maîtrise des engagements

For a procuring entity, opting for public-private partnership contracts may pertain to two different logics. A first one consists in a fiscal strategy consisting in a private financing of public investments, a second one in a search for economic efficiency, based on an optimal risks allocation. Whatever the motive, the additional cost of private finance, compared to sovereign bonds, appears as the Gordian knot of the public-private partnership contract economics. However, minimizing this additional cost may lead to alter the contractual incentives. A trade-off between value for money and contract fiscal affordability may be highlighted. In such a context, the legal and regulatory framework may appear both as a source of additional legal resources helping to reach the contract financial close and as a safeguard for maintaining the proper balance between these conflicting objectives and for guaranteeing public accountability. Our purpose consists in analysing the dynamics of the French legal regime of availability payments public-private partnership schemes from 2004 to 2016. First, we stress the growing margins of manoeuvre provided to procuring authorities. Second, we put the accent on the increasing requirements imposed to procuring authorities to guarantee a proper use of public funds and to enhance the disclosure of their commitments through their financial and budgetary statements.