Study sheet: Administrative Law and Public Services

📋 Course Outline

1. Origins of Jurisdictional Separation
2. Birth of Administrative Law
3. Criteria of Administrative Law
4. Distinctive Features and Remedies
5. Functions of Administrative Action
6. Definition of Public Service
7. Private Management and Public Powers
8. SPA, SPIC and European Services
9. Consequences for Jurisdiction

📅 Key Dates

1. 16–24 August 1790The law, particularly Article 13, prohibited judicial courts from deciding disputes involving the administration.
2. 16 Fructidor Year IIIThe decree reaffirmed the separation of administrative and judicial authorities after resistance from judicial judges.
3. 8 February 1873The Tribunal des conflits judgment Blanco declared State liability subject to special rules rather than the Civil Code rules governing private relationships.

📖 1. Origins of Jurisdictional Separation

📝 Essential Points

• The revolutionary solution initially entrusted administrative disputes to the administration itself, meaning that the administration judged its own action.

💡 Memory Hook

1790 law → Fructidor decree → administrative jurisdiction

📖 2. Birth of Administrative Law

📝 Essential Points

📌 The Blanco judgment ended the principle of State irresponsibility and affirmed the autonomy of administrative law from the Civil Code.

📌 Under the principle that jurisdiction follows the applicable law, administrative law normally leads to the administrative judge, whereas private law normally leads to the judicial judge.

💡 Memory Hook

Blanco → special rules → administrative judge

📖 3. Criteria of Administrative Law

📝 Essential Points

📌 The organic criterion links administrative law to the identity of the body issuing an act, but it is insufficient because an administrative body may sometimes act under private law and a private person may manage a public service.

📌 When the administration acts as a public authority, administrative law and the administrative judge generally apply; when it acts as a private person, private law and the judicial judge generally apply.

💡 Memory Hook

Public authority action versus private-law action

📖 4. Distinctive Features and Remedies

🔑 Key Concepts & Definitions

• Exorbitant powers : powers allowing the administration to impose its will and obligations without necessarily obtaining the consent of the governed or prior authorization from a judge

★ Must-know

📌 The administration may exercise exorbitant powers only in the general interest, which both justifies and limits those powers.

📌 The action for annulment for excess of power asks the administrative judge whether an administrative act is legal or illegal, whereas full jurisdiction allows the judge to go beyond annulment and award damages.

Further detail

• Administrative law is fundamentally jurisprudential and requires knowledge of the judgments of the Conseil d’État.

💡 Memory Hook

Exorbitant powers versus legal constraints

📖 5. Functions of Administrative Action

🔑 Key Concepts & Definitions

• Service provision : Charles Edenman — supplies goods and services such as water and childcare to users

★ Must-know

• The service public was long considered the cornerstone of administrative law and, for the Bordeaux school, its criterion of application.

• The Bac d’Eloka judgment recognized that some public services operate like private enterprises and are subject to private law.

Further detail

• A public service may be managed by a private person, as recognized in Conseil d’État judgments Établissement Vézia and Caisse primaire aide et protection.

📖 6. Definition of Public Service

🔑 Key Concepts & Definitions

• Public service : René Chapus — an activity of general interest ensured or assumed by a public person

★ Must-know

📌 General interest is a material criterion, while assurance or assumption by a public person is an organic criterion for identifying a public service.

📌 General interest is necessary but insufficient when an activity is managed by a private person, whereas general interest alone suffices when the activity is managed by a public person.

Further detail

📌 General interest is neither the opposite of private interests nor their sum, but a collective choice that may serve a minority.

📖 7. Private Management and Public Powers

🔑 Key Concepts & Definitions

• Public-power prerogative : a power that a private person cannot possess and that may be used only by a public person

📝 Essential Points

• An activity is assured when a public person manages it directly, whereas it is assumed when a public person delegates its management to a private person while retaining control.

• Under the Narcy judgment of 28 June 1963, a private person initially managed a public service only when the activity served the general interest, was controlled by a public person, and involved public-power prerogatives. — Conseil d’État

• Under the APREI judgment of 22 February 2007, a private person may manage a public service through a statutory qualification, the three Narcy criteria, or a body of indicators showing public control even without public-power prerogatives. — Conseil d’État

💡 Memory Hook

General interest → public control → PPP or indicators

📖 8. SPA, SPIC and European Services

🔑 Key Concepts & Definitions

• Service of general interest : In European Union law, a service of general interest includes economic and non-economic services provided under public-interest conditions.

★ Must-know

📌 An economic service of general interest operates on a market under competition and public-service obligations, whereas a non-economic service of general interest is purely sovereign and not subject to competition.

📌 Under the UsiA judgment of 16 November 1956, a public service is presumed to be an SPA, but becomes an SPIC when its object, resources, and organization or operation have the characteristics of a private enterprise. — Conseil d’État

Further detail

• Universal service concerns telecommunications and postal services and requires affordable tariffs and a standard level of quality.

💡 Memory Hook

SPA administrative versus SPIC commercial

📖 9. Consequences for Jurisdiction

★ Must-know

📌 An SPA is generally governed by administrative law and falls under the administrative judge, whereas an SPIC is generally governed by private law and falls under the judicial judge.

Further detail

• For an SPA managed by a private person, disputes concerning unilateral administrative acts may fall under the judicial judge under the Magnier judgment of 13 January 1961. — Conseil d’État

• For an SPIC, disputes concerning the service director and public accountant fall under the administrative judge under the Jalenques de Labeau judgment of 8 March 1957. — Conseil d’État

• General organizational acts adopted by the directors of an SPIC are unilateral administrative acts involving public-power prerogatives and fall under the administrative judge under the Époux Barbier judgment of 15 January 1968.

💡 Memory Hook

Default judge versus exceptions

📊 Synthesis Tables

SPA and SPIC

Dimension	SPA	SPIC
Applicable law	Administrative law	Private law
Default judge	Administrative judge	Judicial judge
Presumption	Default category	Requires three private-enterprise criteria
Main criteria	Administrative nature	Object, resources, organization or operation