Council of State Ruling on Public Service by Private Persons

Extract

[...] The dispute was then brought before the Council of State, which had to decide whether the criteria for qualifying an activity as a public service were met in this case. The arguments raised by the parties reflected the central issue of the dispute. The applicant argued that the private organization could not be regarded as providing a public service since it did not constitute a department of the State and retained management autonomy. He also contested the existence of public powers, estimating that the acts taken by the organization fell within private law. [...]

[...] The administration's will to entrust a public service mission to a private person. 2. The conditions of organization and functioning revealing a sufficient attachment to public power. The judge thus specifies that 'the absence of public power prerogatives does not prevent the qualification of public service when the administration's intention is clearly established'. This phrase, which has become central, marks a clear break with Narcy: the criterion of prerogatives ceases to be indispensable and becomes a simple index among others. [...]

[...] The first effect of the qualification is therefore the competence of the administrative judge. In accordance with the Magnier jurisprudence 1961), the Conseil d'État recalls that when a private person exercises prerogatives of public power within the framework of a mission of general interest, the acts it adopts are administrative acts subject to appeal. Narcy is thus in line with this jurisprudence, while systematizing it: it is not only the existence of prerogatives that establishes the competence of the judge, but their insertion into a mission of general interest exercised under public control. [...]

[...] This explicit reference to unilateral prerogatives, taken from the judgment, anchors the qualification of public service in a material and functional dimension: the private organization acts, at least partially, as a public authority. This criterion refers to the Monpeurt (1942) and Magnier (1961) jurisprudence, which had admitted that private persons could take administrative acts as long as they possessed public powers prerogatives. The combination of these three criteria gives the Narcy judgment a structuring scope. The Council of State adopts a cumulative approach: the absence of a single criterion creates an obstacle to the qualification of public service. [...]

[...] The Council of State's development of a tripartite analysis grid based on the mission of general interest, public control and public powers prerogatives The first major contribution of the Narcy judgment lies in the explicit formulation of a triptych allowing the identification of a public service provided by a private person. The Council of State indeed affirms that a public service is 'any activity of general interest provided by a private person under the control of a public person and possessing public powers prerogatives'. This phrase, which has become canonical, structures the entire motivation of the decision. [...]