الحرية التعاقدية للادارة في الصفقات العمومية وتفويضات المرفق العام في الجزاير

Abstract

We are dealing through this topic with an analytical theoretical study pertaining to the contractual freedom of administration in contracts relating to public transactions and public service delegation in Algeria, all the way through addressing the limits of this freedom at the stage of the formation of such contracts in terms of the general provisions governing the principle of conclusion, prior to the contractual process and at the time of concluding contracts, with all the general principles contained therein framing the contracts-conclusion process, together with the complex legal framing of the procedures pertaining to concluding the contracts relating to public transactions and public service delegation. In addition, the limits of the contractual freedom of the administration in embodying the conditions of competition were addressed through preventing any restrictive practice of competition or any economic grouping contrary to the law, along with following-up the same through the intervention of the State Council as a market control entity, as well as through the intervention of the ordinary and administrative judiciary. More to the point, the imposition of control over these contracts has alike been addressed through this topic, which varied between administrative control and judicial control as a restriction on the freedom of administration Nonetheless, this matter is far from being limited thereto, as it addressed as well the idea of balancing between the contractual freedom of administration and the privileges of the public authority in the execution of public transactions and public service delegation, in addition to the powers of administration in the face of the contracting customer, along with the corresponding obligations towards him, as well as the guarantees to ensure the proper execution of public transactions and public service delegation, through the amicable settlement of disputes arising from the execution of such contracts, arbitration and judicial settlement