Jurisdiction Over Public Industrial and Commercial Services

Extract

[...] This affiliation has led the SFDE to claim the competence of the administrative judge, as it believes that 'the prejudice of which MC claims to be a victim originates from a damage to public works caused to a third party.' This means was rejected by the court without explicitly giving the reasons. These may reside in the fact that the regime of damages caused by public works justifying the competence of the administrative judge is not applicable in the case at hand. In addition, MC, in its capacity as a user of the public service, is not a third party since it is a user of the service. [...]

[...] Council of State May 2018 - Which judge is competent to hear a dispute arising from a contract concluded between a user and an organization managing a public industrial and commercial service? The criterion of public service has long animated the conception that administrative law would find its essential foundation in the provision of public services. The appearance of a new category of public services with an industrial and commercial character, alongside administrative public services, was the origin of the crisis of the school of public service. [...]

[...] This is a case of a user of a public service, Mr. MBA, who has lodged a complaint with the Versailles Court of Appeal, seeking a declaration that the French Water Distribution Company is responsible for the damage caused by water leaks in his home. By an order dated 13 September 2011, the judicial judge declared himself incompetent to rule on the dispute between the user of the public water service and his supplier, the French Water Distribution Company (SFDE). [...]

[...] Thus seized, the Conflict Tribunal had to determine What is the competent judge to hear a dispute arising from a contract concluded between a user and an organization managing a public service of an industrial and commercial nature? In other words, it is for the judge to determine the nature of the relationship binding the user of a public service of an industrial and commercial nature (SPIC) to the manager of the service By its decision of May the Conflict Tribunal declares the judicial judge competent, considering that the report opposing MBA and the SFDE is a private law report, specifying that 'it matters not that the cause of the damage lies in a design defect, the execution of public works or the maintenance of public works.' Such a solution was based on two points: the first affirming the private nature of the relationship between a user of a service public of an industrial and commercial nature (SPIC) and its supplier the second on the ineffectiveness of the means drawn from the origin of the damage on the nature of the contractual relationship (II). [...]

[...] It is the nature of the service, that is to say its administrative, industrial or commercial character, that will determine the competent judicial order. The 1921 West African Commercial Court decision is the foundation of this solution, considering that 'by performing, for a fee, the operations of pedestrian and vehicle passage from one bank to the other of the lagoon, the Ivory Coast colony exploits in the same conditions as an ordinary industrialist, and therefore . it is only for the judicial authority to know the damaging consequences of the accident invoked?' Finally, the qualification of the industrial and commercial service gives it a management facility that borrows the rules of commercial law. [...]