Public Services

In France, the term "public services" designates all the activities of general interest, i.e. in the public interest, which, one way or another, are carried out by the authorities. The courts, the police, education, disease prevention and health promotion are all public services – but so, too, are rail transport and the supply of electricity.

A fundamental concept for the understanding of French society

Thus defined, the concept covers the field of "public administration" and the "public utilities" in Britain. But the term used in France is not neutral. It not only has precise legal significance, it also has an ideological content and plays an important role in the country’s political, economic and social life.

The emergence of this concept is bound up with the technological and economic transformation which took place in the nineteenth century. What was called the industrial revolution and the spread of the capitalist mode of production overturned the pre-existing social structures. The result was a whole series of new problems in the fields of work, the material conditions of existence and ways of life, which gave rise to conflicts and necessitated the intervention of the State.

The State had previously confined itself to discharging the functions of sovereignty: justice, police, national defence, tax collection - what was known in France as the "Etat gendarme" (2) From now on its tasks would steadily increase. Henceforth the State would concern itself with education, public works, health, employment, urban development and so on. Subsequently, people began to refer to this broader central government role as the "welfare State".

It is in this context that the notion of service public [public service] was to replace that of puissance public [public authority] as the fundamental concept of French administrative law. It first appears in a decision by the Jurisdiction Disputes Court (3) in 1873, the well-known Blanco ruling, which concerned an accident in a state tobacco factory. The Court noted, inter alia, that "(…) liability of the State for any damage caused to private individuals by people employed in the public service cannot be governed by the principles of the Civil Code (…)" and that State liability is to be governed by "special rules" and dealt with by an administrative court. The notion of public service has been undergoing constant development ever since. Briefly, the legal regime applicable to government no longer found its primary justification in the authority inherent in government, but in the service rendered to citizens. This was a considerable about-turn, and did not take place all at once, but its consequences were to prove far-reaching.

In law, the notion of public service thus becomes the principal criterion in applying public law and defining the remit of administrative jurisdiction. Public service is the factor which explains both the basic rules recognized by that law and the balance they establish between the prerogatives enjoyed by government and the constraints imposed upon it. Prerogatives, because the service rendered is a public service dispensed by the authorities, and they have to be given the means of doing their job, if necessary in the teeth of resistance. Constraints, because it is indeed a service, and the citizens for whom it is intended must be guaranteed equal access to the service and equality in the way they are treated by it.

But the significance of the notion of public service goes well beyond these legal aspects.

For the French, public service is one element of the particular development model they have espoused. After the second world war, France, like a number of other European countries, chose a middle way between the Soviet-style command economy and American-style free enterprise. That choice meant assigning an important role to the State and recognizing community values. This was expressed inter alia through the setting-up of an advanced system of social protection, the use of planning, and the nationalization of large companies. Attaching value to the concept of public service is consistent with this approach. Taken further in France than elsewhere in Europe, it characterizes the French way of pursuing this path.

Understood in these terms, public service became at the same time the glue binding a coalition of social forces. There was something for everyone: the elite who man the upper echelons of the civil service and occupy senior posts in the public sector, the mass of unionized civil servants working in government departments and employees of State-owned enterprises, and a good many of the citizens who use public services and who, on the whole and despite some legitimate grounds for discontent, remain committed to this mode of satisfying their needs.

Indeed, this commitment transcends political divisions. While there is undoubtedly more support for public service on the left than on the right, in the last ten years we have seen all governments, whether right-wing or left-wing, taking very similar public positions on this subject, particularly in European debates.

A flexible and comprehensive definition

The notion of public service encompasses all activities of general interest which are carried on under the authorities’ aegis and are hence subject to a particular legal regime. Under this very broad definition, a number of different organizational models are possible.

Public service is an activity. An activity is not the same as an organization. This aspect of the definition is often overlooked in everyday speech. It would be wrong to call the SNCF [French railways] a "public service" when the notion of public service applies not to the enterprise itself, but to the activity of rail transport for which it is responsible.

This activity is of general interest. But not all activities of general interest are public services. To qualify as such, they must also, one way or another, be under the aegis of the authorities. That is a political choice which can depend on the necessities of the moment. The provision of food, for example, is obviously of general interest. But, except in times of crisis, it is left to private initiative and has not therefore been made a public service.

"Under the aegis of" does not necessarily mean "carried on by". In other words, a public service may, where appropriate, be entrusted to a private operator. We then say that the public service has been "delegated". But in every case there will have been a public decision to create the service and determine the conditions of its organization and functioning. This decision is taken by the authorities. Very often the authority in question will be the State. But it may also be the local authorities since in France local government at regional, departmental and above all commune (4) level is responsible for many public services.

Finally, the public service thus created is subject to a specific legal regime, administrative law, as opposed to the common law regime governing commercial trading activities. This regime comprises some common elements to which we shall return, but it may also vary according to the nature of the service concerned.

A diversified set of essential functions

Defined in this way, public services occupy an important place in French life. The French depend on their proper functioning for the maintenance of their security, the guarantee of at least part of their livelihood, education of their children, delivery of healthcare, and access to the infrastructures they need in order to travel around and live in built-up areas. Over 20% of the country’s working population is employed in public services. Total government spending, which may be regarded as essentially devoted to these services, accounts for something like 50% of GDP.

The legal regime applicable to these services varies depending on the nature ("administrative" or "industrial and commercial") of the activity and the status (public or private) of the operator entrusted with them. From an economic as well as a political point of view, it could be said that in France there are three major categories of public services.

The primordial or sovereignty-related functions of the State: general administration, justice, police, national defence and public finances. These are generally entrusted to government departments. Those responsible for dispensing them are civil servants.

These services may be devolved, i.e. provided by administrative units distributed throughout the national territory, while remaining directly subject to the authority of the State and its local representatives. More unusually, they may be decentralized, i.e. run on behalf of public authorities other than the State. Public services in this category are very largely subject to administrative law. They most frequently proceed by means of unilateral acts, i.e. decisions imposed on citizens. They are financed by taxation.

Social and cultural services have developed greatly since the mid-nineteenth century. Among other things, they cover the fields of education, health, social protection, aide sociale [means-tested social-aid scheme which provides benefits for persons not enjoying full social security cover] and cultural activities. These are major areas of activity: for instance, there are over a million teachers, and 850,000 people are employed in the public hospital service.

In these fields, the State organizes the system as a whole and manages its operations. But local authorities also have an important role to play, especially in the social and cultural spheres. Legally speaking, these services, like those in the first category, have the status of "administrative" services. They operate outside the market, the benefits they provide are essentially free of charge, and they are largely subject to the rules of public law.

But their organization is far more diversified, and in providing their services to the public they involve a range of different institutions, not only public institutions like hospitals and schools, but also private ones, like private schools with contracts with the State and the many associations [not-for-profit organizations] which, in the areas of health or social work, receive public funds to perform tasks of general interest.

Economic services, which legally are characterized as "industrial and commercial public services" (SPIC - services publics industriels et commerciaux), constitute the third category. Unlike the preceding ones, they are supplied on the market, which means that they are paid for and normally cover their operating costs. They are subject to a mixed legal regime combining public and private law.

These services took shape in the course of the twentieth century, as the State progressively played an ever more direct role in meeting a number of basic needs in the fields of energy, transport, communication, etc. Their existence received formal recognition with the famous Bac d’Eloka decision in 1921 by the Jurisdiction Disputes Court (3) which ruled that an accident which occurred during the ferry-crossing of a lagoon administered by the colonial authority of Côte d’Ivoire - a public incorporated authority vested with general competence - fell within the jurisdiction of ordinary courts, since the colonial authority was running the transport service in the same way as a private business. It thus established that some public services are industrial and commercial services which cannot be governed by adminstrative law. These include inter alia the provision of gas and electricity, rail transport, the postal service and telecommunications. Today they employ about one million people.

Two organizational models have coexisted for these services: the monopoly entrusted to a public corporations (5) like Electricité de France (EDF), Gaz de France (GDF), SNCF, la Poste, France Telecom, etc.; and local management, where the local authority provides the service itself or devolves its administration to private operators (en gestion privée). The most common form of private administration is where a concessionaire administers a public service at its own expense and is remunerated through payments by customers or users of that service. This model is often used for the water supply.

The criterion for a public service: public interest

The services just described are very different from each other in the benefits they provide, the techniques they employ, and the legal regime applicable to them. They are nevertheless perceived as belonging to the same species, since, unlike profit-making activities, they are deemed to be pursued in the public interest and thus have to comply with a number of important principles of operation.

The first principle is that of the continuity of the service. A public service has to be delivered at all costs, come hell or high water. It cannot close its doors. We saw an example of this in France in late 1999, when EDF had to get the power restored after it was cut by an unusually violent storm. But it is also true that the exercise of the right to strike can compromise the continuity of a public service. There is a recurrent debate in France as to whether the practical application of these two principles can be reconciled, and if so how – for example, by making it an obligation to provide a minimum level of service.

The second principle is that of equality. This takes two forms: equal access to the public service for all citizens, and equal treatment of all its users by the public service. There is a social component (no inequality depending on social origin) and a territorial component (no inequality between regions). The latter is undoubtedly easier to satisfy than the former, since the privileged classes remain in a better position – no matter what efforts are made to ensure genuine equality – to make informed use of the possibilities of access and the resources of the service, as is the case, for example, in the field of education.

Equality of access to a service is ensured by making it free of charge or nearly so, in the case of administrative and social services, and by the practice of affordable and standardized prices in the case of economic services. A service can thus be provided to everyone, including those in the most remote areas, which would obviously not be possible under the ordinary market rules.

The neutrality of a public service is the corollary of equality. It requires the managers of the service to refrain from discrimination or favouritism depending on the political opinions, way of life or religious beliefs of the users or providers of the service. In the field of education, this requirement of neutrality is consistent with the broader concept of secularity. How can the neutrality of education be reconciled with the pupils’ freedom of conscience? The issue of the wearing of the Islamic headscarf at school recently gave the Conseil d’Etat (1) a further opportunity to clarify its case law on this point.

Finally, one last principle is that of mutability or adaptability. It means that the authorities can and must modify the organization and functioning of a service to adapt it to new needs. Neither the operator licensed to dispense the service nor its users have a right to its maintenance as-is. Here again the practical application of the principle is not without its problems. On the one hand, the thrust of the proposed changes may give rise to discussion, particularly where notions of profitability are invoked, a consideration challenged by certain defenders of public service. On the other, the effective application of these changes is not always easy to impose in the face of reactions by bodies representing certain sectional or professional interests.

As can be seen, the principles governing the operation of the public service are sometimes more in the nature of objectives to be pursued than rules which are effectively respected. Their existence is nonetheless essential. It testifies to the degree of importance the nation attributes to the activities it requires to be carried out in its name.

What future for the French conception of public service?

Globalization, the Europen enterprise, social transformations, the affirmation of civil society, all are today forcing a re-think of the way public activities are organized. The role of the State is being called into question. People are wondering what makes for "good governance". The French conception of public service cannot stand aloof from these concerns. We may distinguish two major trends in this process.

The first is towards the liberalism which today tends to prevail in the economic policies pursued by many countries and by the international institutions. It is affecting the French organization of public service in two ways.

First, the implementation of the Treaty of Rome and its extensions (the single market) has required the introduction of competition in public-service sectors of an economic nature (services of general economic interest, within the meaning of article 90 of the Treaty of Rome). This process is now well under way, particularly in the sectors of energy (gas and electricity) and communications (telecommunications and the postal service). It is proceeding more slowly in rail transport. France, who at first had her doubts, has been obliged to join in this process by ending the monopoly once enjoyed, for example, by France Telecom and EDF. But at the same time she has striven to maintain a recognition of the public service concept in these sectors by having it acknowledged in EU legislation, and by strongly affirming it in the French transposition legislation (Acts of 26 July 1996 on telecommunications and 10 February 2000 on electricity). She has also declined to privatize the "historic operators" in these sectors. The future will show whether this was a rearguard action before a 100% triumph of the market in these sectors, or whether the lasting elements of a new balance between competition and public service may have been found.

The other aspect of this liberal offensive is more insidious. It flows from the constraints desired or imposed on the management of the public finances: limitation of the overall volume of public spending and compulsory levies, and reduction of budget deficits. These do not call into question the principle of public service, but they limit its means of action. The constraint may prove to be fruitful if it is confined to reasonable proportions and leads to a search for greater efficiency. Things would be different if it were to undermine the place of public service in the country’s development model. We are not yet at that point.

The second trend in the public services is more consonant with French tradition and could be described as the trend towards giving a greater role to the citizens themselves in that there is a demand for more accountability on the part of those called upon to act in these areas. There is no suggestion that the authorities should not act, but there is a desire for greater flexibility in a model which is sometimes judged too centralizing and authoritarian. The key words here are transparency, consultation, decentralization and decompartmentalization [what is known in Britain as "joined-up government"].

Transparency and consultation: the public service must function in such a way that citizens can know what is happening and be consulted on the way it acts. The first of these requirements has already largely entered French positive law, with the 1978 Act on access to administrative documents, and the 1979 Act on the reasons for administrative decisions. The second requirement is leading to the development of consultation procedures, particularly with an eye to consumers and users’ associations, and a wider use of contracts in relations between the various players engaged in public service.

Decentralization: France has a tradition of centralization. But she has been unable to stand aloof from the contemporary trend which, on the European level, is expressed in the so-called subsidiarity principle. This means referring to a higher-level authority only those matters which cannot be dealt with appropriately at a more local level. The decentralization Acts of the early 1980s thus transferred to the local authorities (regions, departments, communes (4)) powers previously exercised by the State. These powers are likely soon to be extended still further. At the same time, the State itself is seeking to draw closer to citizens by developing a process of internal devolution: in 1997 the principle was established that the préfet (6) is authorized to take all individual decisions on behalf of the State.

Lastly, decompartmentalization. The conventional organization of the public service is based on a division into a number of major social functions (education, justice, public health, etc.), each entrusted to specialized operators. This organization ignores the fact that the human being is made up of many parts and that a number of collective problems are found at the intersection of the various functions. This is the case, for instance, when it comes to combating social exclusion or conducting what has come to be known as urban policy. So the trend today is to get the various players in these fields to improve their coordination by working more closely together. One example of this approach is the conclusion of "local security contracts" involving the police, judicial and education services together with the representatives of the State and communes.

As can be seen from the foregoing developments, the theory of public service is alive and well, and there are many reasons for France’s continuing commitment to it. She is not the only country to have promoted this value. But she has perhaps done so more systematically than others.

The French conception of public service has a great history. But its future survival will be ensured only if it continues to draw on the wealth of other countries’ experience – and if it can win recognition as a real component of the European enterprise.

 (1) The Conseil d’Etat is the highest administrative court and government adviser on questions arising in connection with legislation.

 (2) L’Etat gendarme, in which the State’s prerogatives are limited to controlling the police, the armed forces, the judiciary and the administration as opposed to the Etat providence [welfare].

 (3) The Tribunal des conflits [Jurisdiction Disputes Court] settles questions of jurisdiction and inconsistent judgements between administrative courts on the one hand and ordinary courts on the other.

 (4) The commune is the lowest tier of France’s administrative hierarchy.

 (5) An établissement public [public corporation] is a public authority with limited competence.

 (6) The préfet is a high-ranking civil servant who represents the State at the level of the department or region. Besides a range of important administrative duties, the role of the préfet is to ensure that central government decisions are carried out properly at local level.