Public-Private Partnership in courts : the rise and fall of concessions to supply drinking water in France (1875-1928)

In France, back in the mid-nineteenth century, large cities started to develop water networks, mainly under very long concession contract (99 years). 50 years later, other cities organising their water supply made a different choice: they mainly created in-house services, rather than contract them out. In 1908, a majority of urban water services were run through local régies, or municipal organisations (Burel, 1912). In 1938, out of 40 million inhabitants, 25 million people were on safe tap water, and 18 million were supplied by publicly operated water services (Loosdregt, 1990). By that time, the remaining delegation contracts were no longer concessions with investment and operating costs under concessionaires' responsibility but rather affermage or lease contracts, where the operator only supported operating costs and the local authority the investment costs (Pezon, 2003). What went wrong with the concession formula in late 19 th century, so wrong that French local authorities stopped considering it as an appropriate model to secure a safe water supply? What disqualified concession to comply with local authorities strategies? The jurisprudence of the Conseil d'Etat offers a unique material to understand the concession's failure, and analyse the shift in water supply management that happened in France in the ealrly 20 th century. The Conseil d'Etat (CE) is the Supreme Administrative Court, and regarding water supply, it is competent for any litigation made on the ground of the delegation contract (concession, lease, etc). 1 With 78 cases, the 1875-1928 period is the most conflicting period ever in the upper court, opposing public to private partners in the water supply sector. It began with the case of the city of Le Havre which asked the judge to order its concessionaire, La Compagnie des Eaux du Havre, to make extra-contractual waterworks, and ended with the last decisions that the CE made on the conflictual termination of the city of Toulon's concession with the Compagnie Générale des Eaux. The importance of the CE decisions lies first on the enforcement power of the institution and also on the scope of the decision. The enforcement power of the CE is almost unlimited and the court has never been contested as the Supreme Administrative Court. Behind the case considered, the decisions are valid for any similar litigation: the Conseil d'Etat 'empties' the case. It gives to any public and private partner committed in similar contracts capital information on their rights and duties, their risk-sharing schemes, etc. The CE rules cases. It provides parties with elements on what they should do, according to laws, to the way it interprets laws (its jursiprudence) and to the pecular circumstances of the litigations.