Extract
[...] In any case, in order to requalify a public service, the judge must necessarily rely on the criteria set by the case law of the Council of State's ruling of 16 December 1956, Union syndicale des industries aéronautiques (USIA) B. The characterization of the distinction SPIC/SPA by the case law Administrative case law had to supplement the legislator in its qualification of a public service since the law does not always provide the qualification of a public service. Thus the Council of State in its decision of 16 November 1956, Union syndicale des industries aéronautiques dissolves beams of indices allowing to characterize a public service. [...]
[...] Thus the judge must assess the activity, the financing of the service and the regulation of the organization. In its decision of 1989, Passage d'eau de la Charente-Maritime, the Council of State considers the activity of the service to contribute to the interest of France, qualifying it as a SPA. Concerning the condition of the financing of the service, the Council of State had in its decision of 1998, the Hill the water sanitation service corresponded to a SPIC, because the fee paid by the user corresponds to the real price to be paid. [...]
[...] The SPIC/SPA distinction is essential, but controversial in its principle The SPIC/SPA distinction is re-examined in its principle by the doctrine, which, like Léon Duguit, explains that there is no material barrier to the intervention of the State as long as a collective need is not or poorly satisfied, or cannot be satisfied. According to the doctrine, the notion of SPIC has been consecrated by the 1951 judgment of the Tribunal des conflits, which operated a distinction between services of general economic interest and services of general interest from European law. However, this conception poses a legal problem, because what follows is a mix of applicable rules, depending on the question posed to the judge. [...]
[...] Subject: La distinction SPIC/ SPA does it still seem relevant to you? « The distinction between public services in two categories with strongly differentiated legal and contentious regimes has illustrated for more than eighty years the subtleties of the French conception of the separation of powers. The appearance of a new dichotomy, less exclusively legal and more receptive to economic aspects, adds to the original conceptual and practical uncertainties.». (Bernard Seiller, 'The Erosion of the SPASPIC Distinction', AJDA p.417). These considerations invite one to ask if the SPIC/ SPA distinction is still relevant. [...]
[...] 342-13 of the tourism code, "The execution of the service is ensured either in direct management, or in management by a public person in the form of an industrial and commercial public service, or by a company that has entered into a contract of a specified duration with the competent authority ». In this regard, the judge is obliged to assess the service in view of the qualification provided by the law, otherwise the Constitutional Council may, by virtue of its competence, exercise control and verify that the given qualification is indeed that provided by the legislator, which it recalls in its decision of 16 January 2001. In addition, the legislator can also qualify a public service through a regulation as provided for in Article R. [...]
