Administrative Action: Ends and Means

• The legitimacy and proportionality of the ends and means of administrative action are key considerations.
• The study of administrative action involves understanding errors to inform citizens' choices.

Administrative Action, Ends, and Means

• In a liberal society, administrative activity is limited to avoid stifling personal growth.
• Administrative action must be identifiable and guided by two central ideas:
  • Providing services in the general interest.
  • Maintaining order through policing.
• These missions take precedence over private activities, which is ensured by specific mechanisms.
• Administrative actions are presumed beneficial to the community.
• Public services have undergone substantial changes in both management and objectives.
• Examination of the nature of public services requires perpetual re-evaluation as thinkers question their effectiveness.
• Comparisons with other European systems are common, particularly given the current political situation.

The Public Service

• Throughout societies, governments and public entities have always addressed social needs through public services.
• Core functions like justice, security, and currency regulation have historically belonged to the state.
• Even authoritarian states provide welfare and charitable actions.
• Democracy encourages the growth of altruistic public services like healthcare, social security, and disaster relief.
• The "gendarme state" has evolved into a welfare state, though this is subject to changes that may revert to previous forms.
• Political trends center on the citizen, viewing the state as a benefactor and promoting public service rights.
• Hauriou and Duguit believe that the state solves all problems, giving rise to the French model of public service, which merges liberal and socialist thoughts.
• Placing public service above all requires imposing limits to preserve individual freedom.
• Not all aid to the population qualifies as public service.
• Public services receive significant legal advantages like protected monopolies, though this is often at odds with European competition laws.

Competition and Public Service

• French public services once hindered private sector development.
• Jurisprudence is mediating between competition and public service, reconciling conflicting views.
• The CE's 1997 Millon and Marais ruling addresses the relationship between competition law and administrative actions.
• During the 1980s, administrative judges assessed whether French law complies with European Union law.
• The judiciary stated that French law emphasizes public rights, public service, and respects the free market, thereby limiting monopolies.
• Competition primarily deals with businesses; therefore, it's not applicable against public administration within its regulatory powers.
• The M&M case initiated a judicial shift, concerning a municipal contract for funeral services outside cemeteries.
• Excessive funeral costs resulted from monopolies, giving consumers no choice.
• In the case, contracts granting exclusive rights must also consider the 1986 law on competition rights.
• A monopoly can be acceptable, however, it must align with competition law.
• The acknowledgment of French competition law stemmed from the Nicolo ruling, which required community law compliance.
• Exclusive concession rights should be reviewed periodically, anticipating potential abuse of dominant positions.
• Operators should be reasonable on pricing, despite a dominant market position.
• There is growing alignment between Community and French bodies, Europeans understand of French public service, which helps states define necessary general interest missions.
• It is up to the Unions to define important elements like public-service missions
• The Union is prohibited from stopping states from granting specific rights for public services, like administrative powers.
• M. Corbeau challenged the Belgian postal service's monopoly, invoking free competition laws.
• While M. Corbeau did not fully win, the Court of Justice acknowledges individual state rights to maintain public service monopolies if dominant positions aren't abused.
• Economic services of general interest can bypass free competition laws to allow monopolies if dictated by particular public service needs.
• The survival of public service is guaranteed legally and by the community.

The Concept of Public Service

• Adherents to the public service school see the concept as solely defining administrative law, not subject to degrees or variability.
• They insist on absolute consistency, with no exceptions.
• They have identified criteria for public service and emphasize the service's functional and organic unity.

Functional and Organic Units

• The term "public service" can ambiguously refer to both the service activity and the entity providing it.
• Legally, public service denotes an activity instead of the administration itself, which can offer public services or private functions.
• For a public service to exist, the activity must be of general interest and controlled by a public entity.
• Private or public entities can offer services, if a close link to public authority ensures its quality.
• Two conditions must be met for a service to qualify as public:
  • Performance of activity with general interest.
  • Public entity needs to maintain control.

General vs Private Interest

• Balancing private and collective interests poses challenges, as many activities are dualistic.
• Individual business success benefits the community through wealth creation/tax revenues that support the commune.
• Defininitive limits are necessary to avoid over regulation.
• Liberal democracies ensure direct benefits to the community when a service is identified as public.
• The anglo saxon, "utilitarian" concept, sees public action as serving individual development.
• Public service is an algebraic sum of individual interests.
• French, "voluntaristic" view perceives the general interest as overriding personal or group interests.
• French policy allows for a public service dedicated to broader community benefits, not just individual profit.
• Revenue from a "higher profit" activity can fund "higher service" initiatives.
• The regulation and taxation of lotteries is considered a public service task.
• A national lottery can be considered a public service.
• The CE's 1948 Angrand case ruled that while it doesn't serve the French citizen, it generates revenue and is therefore seen as voluntary tax.
• The CE's 1995 Syndicat des casinos de France case ruled casinos a municipal service, regulated and monitored by the state.
• The extensive nature of gambling and its related harms can cause issues with public service status based the negative impacts on segments of the population.
• A reversal occurred in CE's 1999 Arrêt Rollin, decreeing gambling is not a service of general interest.
• In a previous CE 1979 Soc d'encouragement pour l'amélioration des races de chevaux case, horse races were deemed not of general interest
• When deciding if activity is of general interest, qualification of laws is up to the national collective can indicate the general of interest via normative text.
• Legal battles become irrelevant if qualification is legislative.
• Administrative courts or conflict tribunals determine whether an entity can be categorized as a public service.
• Judges must often assess the presence of public service elements, as these sources are often ambiguous.
• Litigation relies on the administrative judiciary to determine the appropriate course of action, and define general interest activities.
• Legal precedent accepts broader concepts of general interest to help the administrative judiciary.
• Defining activities of public interest broadly allows for shifts in public service focus

Culture as an Activity

• The early 20th century brought debates on culture, specifically municipal theatrical activities.
• Maurice Hauriou referenced a ruling confirming the administration of municipal theater can have general interests (CE 1927 Arrêt Gheuzi).
• The CE considers the circumstances. Quality art is considered of general interest (CE 1944 arrêt Léoni).
• Quality and cultural diffusion determines its nature, rather than strict principles.
• Hotels and restaurants run by and for communes are generally private but can serve a public function in some instances.
• CE 1994 Lacan, hotels promote the image of the commune.
• CE 1999 Ville de Paris, can be the opposite, if for a well know city.
• A key determinant as to the usefulness for needs, circumstances.
• Public entities conduct activities that are inherently governing functions, though this is being re-evaluated.
• Private entities can be connected and entrusted with public service activities.
• When an activity is performed with public resources, it is considered to be under government-operated service.
• There has been a rise in externalization, where the administration increasingly uses private companies.
• Delegation is common through service concession contracts or temporary contracts.

Delegating Management

• Delegating and entrusting management is not new but always existed, albeit the contracts are a bit precarious
• As of the 20th century, public administrations assumed they could no longer directly handle new citizen services.
• Specialized private entities were more effective, flexible, and managed costs.

Public Service Crisis

• Identifying public service became difficult.
• Public support shifted from public entities to specialized private entities.
• 1935 Et Vézia, ruled that a mission assigned to private entity has public concern.
• 1938 Caisse primaire aide et protection, affirms that private org can manage pub service, and private entity can officially manage public service.
• The organic connection between the private entity to public one determines its classification of public service.

Identifying the Connection

• Public entities accomplish private missions with close oversight.
• Key indicator: granting of authority act or judicial enablement via service delegation
• Authorizations come as unilateral or contracted delegations.
• If no official delegation exists as per the state of affairs, jurisprudence dictates guidelines Narcy ruling states to look at clues such as "who created, who funds, who provides service and quality of leaders".
• Indicators that the private entity has exceptional and uncommon rights.
• In the 1990s, the CE eliminated pre-existing third criteria on third party.
• Cultural-leisure associations didn't require public service status.
• Population requested account access when Melan created the entity.
• Melan was the origin of finances and personnel and this showed lack of the criteria needed.

Abandoning Existing Rules

• Ruling states that 3rd criteria can be abondoned if the research for power for public service is not autonomies in private state and the administration is in control..
• The court determined if not necessary to seek if power over the authority is needed.

Assessing the Method

• The method of evaluation seem complex but have small differences that make the judicial rating hard to distinguish.
• Factors can make non public entity actually be a public one.
• Entities can struggle with the definition of the entity but it relies on the interpretation.

Determining Public and Non-Public Entities.

• There is an administrative phenomenon of "fake entities" where private organizations "cheat", the public admin funds transparent entities with no autonomy.
• The ruling shows transparency in committee in communities.

Public vs Commercial

• Mismanaging funds of public services occurs more in criminal law if the funds go to a private individual, known as "management in fact" due to penal repercussions
• An evaluation of the specific is based on a number of indicators.
• The type needs to be identified is according to the duality of admin, commercial, or industry.
• Following the switch from state watch dog to a state benefactor happens due to needs.

The distinction between SPA and SPIC

• The Arrêt of 1921 Bac d'Eloka identifies a distinction between SPIC, which is a private ruling, and SPA.
• They recognize activities that give an overall public gain that by public individuals
• Some are so popular that they resemble the activities of the organizations since the State became a benefactor.
• Admin laws are applied

Assessing a Public Service

• An activity done to a business for example, can have spin offs with commercial laws and regulations.
• Sector has an activity
• In the distinction, the Bac d'Eloka ruling helps know if a SPIC should follow commercial rules
• It is right and constractual for the advantages given.
• SPIC are managed privately and are not clerks which leads to a private admin style

Governing and Jurisdiction

The SPA is managed by public, and governing depends.

• SPIC is a judicial judge, SPA is for management.
• In practice, the laws can remain if the aspects relate to its organization.
• Can lead to finding admin jurisdiction

Inverting Laws

• It sometimes applies private depending on the law.
• Rulings are needed, and legal frameworks matter for each.
• An interest for those for the "good judge" and Admin of having a the public vs commercial depends on the laws the entity finds fits.
• Activities are defined through texts whether a SPIC or SPA
• It is not up to the judge
• An inquiry will happen if not in a contract

Unspecified Laws

• Without specification, admins has to pass the phase that organizes as SPIC, whether a natural or legal person
• The essence is to know spa and spices according to which. Activities can change.
• Stakes mark boundaries between laws that help the public find the right place for the need
• For "public" bodies that can happen that the task they do means a goal, but comply with laws.

Public bodies and legal outcomes

• Judges discover their many faces

• Public bodies can change between spas and spices

• ADPs that manages safety in airport can have services can benefit the flight itself

• Judges has maneuvering range to classify activities as they please

Manoeuvre of Courts

• Authorities can allow it to qualify the activities for the decrees

• The rulings dictate where public services are.

• The bodies needs to be attached to the legal org that by the analysis can make the authority seem to be private bodies, that qualify them as non public

• the issues is for bodies without specified periods

"Fake Adm"

• The admin has no transparency and is clear of autonomy
• The theories that were of transparent orgs show that communities are lacking

Penal situations

• Mismanagement can occurs more in penalized situations if private entities handle funds
• Each situation is different and needs review for the facts

A State Benefactor

• The types of authorities rely on if the field is adminitratve, industry or commercial
• It's the switch from the watchful watchdog to a state benefactor

The Arrêt Of 1921 Bac D'Eloka

• The "arrét" has legal framework for private vs public. The commercial of non commercial will comply, and the private activity will have the ruling
• Interested for the distinction
• The rulings want the distinction used for commercial rules which can be more flexible and contract based
• The SPIC are managed in a private method

Financing Modes

• Each has an origin for the budget which brings the topic subjective.
• Mostly through revenues that the customer gives because the prestation is from rapport means if the revenue is perceived. Which is not the instance
• The consequences are you cant pay for a lack of service ( commercial management). Court sees method validation and follows standards.

Lump Sum

• If the contribution is a single sum for people in SPA, the usagers pay Taxes that in turn goes to services rather the individuals.

Organization

• Is a determinant as the rules can have deficiencies. These rules come to show what the nature of service is and public account or commercial.

• Know which apply

• the importance of the authority and exclusive procedures

• The cost for the consumer to pay is very key

• Not easy to get and the contribution is a minimal social SPA

• It is always hard to go forward to consider the shortcomings in the water distrubution

• Always the cost that never have had such a role

• You cant if no service comes at no cost.

• It is difficult.

Sections of law state the rules

• They have their laws and if modes of management matter.

Creation and disappearance

• From the roots, the public services from the sides from the sides Always from independence.

• Service is always a result of Dugnit social that imposies to admins

• Interest is still present but is the overall point in that time.

• activity be can close depending on bonds.

• Competititon not arbitrary

• Which skills are needed and by which are from Democracy

• The public touch of a service

• Gov is the state of implementing what it organizes Enables the population to take matter in a local way

• Enables the power to be handled

• Has a strong belief is something to do to be a service

• A law must agree with it

• A person shouldn't abandon the service

• New ones or modification and suppressing of law needs the similar process. Can happen and the laws in question should still get services

• Admin should follow because they should balance the gains. If something is down, then it turns to be directed from the admin.

• It is virtual for public services. Can appear with ideas of admin in order to keep to rules the public have

• Can happen because areas are the control Not services origanally.

• There are no services like this for the rules of admin

• It wants to control what can be made.

• All duties must be kept

• Is for contracts

• It can go down on the long road.

• Freedom should be known Constitutions says it is what is

• Can all orgs get the laws? - No.

• No for constutitions

• All state says that

• It should not change the public

• Private will change

• Public schools must always be on point

• Only some should be national because of wealth and poverty

• Monopoly says has to be defined

• National service should not have scale and always stay constant

• New wealth is increasing

• The right to follow a path

• State can not put themselves in harm of taking action because of wealth

• The value is the state so its not something that can be stop actions from private company

• It is clear

• The job must be secured by safety

• The service shouldn't always stop people from stopping wealth it relies on the mindset to secure. Needs help

• A job must be made for them not to cause harm on the wealth

• wealth is something the public can always get that is something to fall to it

• People need to manage wealth without wealth

• In poverty and safety from 1930-1950

• The jp should stop it if there is not a harm.

• New should exist where admins go forward because it happens
• Must be wealth not wealth from state just naturaly

It is not always possible, in which, you need to let it happens, where public can always have actions but keep private happy You must allow it in time with it, the freedom must always stay with people

Private is hard to get, the JP should be free

Always it can be private You should always use it for a time

• A new needs help that always lets admin

This does not make the process to get to be the judge

• It is easier to find it since many places are available

In general to have a private that does what it wants is something better

• The rules must give all good aspects