Determination of the Legal Nature of a Public Service: A Jurisprudential Analysis

Extract

[...] This link will give rise to a specific regime based on the rules of public law. The public law legal regime The judge recalls in the present decision that it is by referring to the 'conditions of its creation, organization or functioning, the obligations imposed on it as well as the measures taken to verify that the objectives assigned to it have been achieved and in view of the general interest of its activity' that the judge can rule on the nature of the mission entrusted to a private law person. [...]

[...] The Court of Appeal considers that it was in error for the administrative court of Clairemont-Ferrand to annul the deliberation of the commune on the grounds that it disregarded the provisions of the cited article. In doing so, the Court of Appeal requalifies the agreement between the two parties as a delegation agreement for an administrative public service. And concludes that 'the municipality of Saint-Nectaire is entitled to argue that it was in error for the administrative court of Clermont-Ferrand to annul, by the contested judgment, the deliberation granting the association "Bouger aven nous" a subsidy for the operation of the Thermadore centre swimming pool'. [...]

[...] On the other hand, and as the Court of Conflict has specified, the service is industrial and commercial when its resources come, to a large extent, from the fees collected from users in exchange for the services rendered: Court of Conflict March 2005, Alberti Scott. The judge recalls, in this context, the provisions of Article L 2224-2 of the CGCT which specifies that it is 'prohibited for municipalities to take charge in their own budget of expenses in connection with the public services referred to in Article L 2224-1' This article deals, precisely, with public services of an industrial and commercial nature. [...]

[...] Based on these elements, the appellate judge confirms the public service nature of the mission entrusted to the association, as retained by the judge in the first instance, but does not seem to share with the latter the nature of the service in question. II) The determination of the legal nature of the public service After qualifying the activity entrusted to the association 'Bouger avec nous' as a public service mission, the judge proceeded to determine the legal nature of the said service. [...]

[...] Now, as the Court recalls in the present case, private person who carries out a mission of general interest under the control of the administration and who is endowed for this purpose with prerogatives of public authority, is responsible for the execution of a public service; that, even in the absence of such prerogatives, a private person must also be regarded, in the silence of the law, as carrying out a public service mission?'. Thus, a person of private law can be entrusted with a public service mission, whether or not endowed with prerogatives of public authority. Let us recall that previous jurisprudence prior to APREI required public authority prerogatives for a private law person to be considered as carrying out a public service mission, notably the Narcy jurisprudence of June 28, 1963. [...]