LexInter | July 19, 2003 | 0 Comments

PRINCIPLE OF SPECIALTY

The State Council (Public Works Section), seized by the Minister of Industry, Posts and Telecommunications and Foreign Trade of the question of the compatibility of the diversification of EDF and GDF with the specialty of establishments public, the limitations imposed on the industrial and commercial activities of EDF and GDF by article 46 of the law of April 8, 1946 and the nationalization of companies, and in particular the compatibility with the principles and legal rules mentioned above or with other legal principles and rules:

the exercise by the public establishment EDF or by one of its direct or indirect subsidiaries, of activities in the competitive sector in the field of engineering, waste treatment, public lighting, remote monitoring, home automation, cable networks or

exercise mapping by the GDF establishment or by one of its direct or indirect subsidiaries, activity in the competitive sector in the field of heat sales, thermal and climatic engineering, the operation of thermal installations, the treatment of household waste, and mapping,Having regard to the amended law of April 8, 1946 on the nationalization of electricity and gas,
Having regard to decree n ° 49-935 of July 13, 1949 relating to the application of the provisions of article 46 paragraph 4 of the law of 8 April 1946 on the nationalization of electricity and gas, concerning interior installations and household appliances,
Considering decree n ° 53-707 of August 9, 1953 relating to State control over national public enterprises and certain bodies having an object of an economic and social nature,

Is of the opinion to answer in the sense of the following observations:

With regard to the question of the respect of the principle of specialty and the law of April 8, 1946:

1-1– The principle of specialty which applies to a public establishment such as EDF and GDF means that the legal person, the creation of which was justified by the mission entrusted to it, has no general competence beyond this mission. It is not for the establishment to undertake activities outside this mission or to interfere in such activities.

If this principle of specialty invites, to determine the nature of the activities entrusted to the establishment, to refer to its constitutive rules, as they were defined in this case by the law, it does not preclude it. even if a public establishment, especially if it has an industrial and commercial character, engages in other economic activities on the double condition:

  • on the one hand that these ancillary activities are technically and commercially the normal complement of its main statutory mission, in this case of the production, transport, distribution and import and export of electricity and gas or less related to these activities,
  • on the other hand, that these activities are both in the general interest and directly useful to the public establishment, in particular through its adaptation to technical developments, to the requirements of a good management of the interests entrusted to the establishment, the knowledge -make of its personnel, the vigor of its research and the valuation of its skills, all means put at the service of its main object.These criteria apply, for the specialty, regardless of the diversification method adopted: by the establishment itself, by a majority-controlled subsidiary of the establishment or by a minority stake.

1-2 – Under the terms of article 1 of the law of April 8, 1946:

“… the following are nationalized:
1 ° the production, transport, distribution, import and export of electricity;
2 ° the production, transport, distribution, import and export of fuel gas “.

According to articles 2 and 3 of the said law, “the management of nationalized companies” is entrusted to the national public establishments EDF and GDF.

According to article 46 of the same law in its version resulting from the law of August 2, 1949: “decrees issued on the report of the Minister of Industrial Production and, where applicable, of the Minister of the Interior, determine .. . 4 ° the conditions under which the distribution services must cease all industrial and commercial activities relating to the repair and maintenance of installations prior to the sale and rental of household appliances and, in general, all activities in apart from those defined in article 1 of this law “.

The decree thus announced did not come into effect, but the cessation of the intervention of third-party distribution services for the repair and maintenance of interior installations and the sale and rental of household appliances was prescribed, subject to amicable agreements provided for by this text, by decree n ° 49-935 of July 13, 1949, still in force.
Neither the above prescriptions which concern the distribution services of which the object is precise, nor the fact that the law of April 8, 1946 does not include for the public establishment the authorization, which has become common in the specific texts concerning the establishments. public services responsible for industrial and commercial public services, to carry out any activity directly or indirectly linked to their purpose cannot be interpreted as indicating a desire of the legislator to exclude, with regard to the activities of EDF and GDF, interpretation of the principle of specialty analyzed in 1-1.

1-3 – The two criteria of the above-mentioned specialty compared with the law of April 8, 1946, lead to admitting a certain legal margin of diversification.

It follows from there that must be considered as normal complement of the activity entrusted to these high technology companies, moreover responsible for importing and exporting, the activities which enhance the know-how of the company and promote exchanges. technological.

Likewise, the role taken in the production of energy from waste and the use of techniques resulting from their activities for the treatment of waste are justified both by the necessities of the technical development of these companies and by the national interest. . The treatment of waste for EDF and the treatment of household waste for GDF are therefore eligible, excluding collection and landfill.

If the prohibition to interfere in the activities of private individuals mentioned in 1-2 is respected, the development and supply of thermal and climatic engineering services and the operation of thermal installations by GDF reflects the technical adaptation of companies to the way in which the needs of their customers and their relationships with energy suppliers have evolved. These activities are therefore compatible with the above-mentioned rules and principles.

The same applies to public lighting: the technical proximity to electricity distribution, the age of the links forged in this area between the public establishment and the municipalities and the general interest of a coherent network and modern street lighting justify the presence of

Finally, these two national companies do not illegally deviate from their missions when they devote themselves to engineering, provided that it relates to their main mission of production, transport or distribution of energy or to the complementary actions admitted here. -above.
On the other hand, cannot find a basis as a normal complement to the main missions and justified by the general interest, the activities which engage the establishments in very different relations with their customers and which require techniques having only one distant relation with the production, transport or distribution of energy.
This is the case, for the two establishments, with mapping with no other relation to them than knowledge of the networks and for EDF with remote monitoring, home automation, or cable networks.

Because these new activities would translate a profound transformation of establishments into establishments providing “multi-services” to local communities and industry, which only the legislature could ratify under the constitutive rules of establishments.

2- With regard to the text which the government should resort to to regulate these activities if it considers it necessary:

It has two avenues:

The methods of control exercised by the State over the establishments under its control fall by their nature within the scope of regulation. The State can therefore, by regulatory means, make the supervision exercised over institutions more restrictive, in particular by approving budgets and accounts and authorizing equity investments within the framework of the provisions of the decree of 9 August 1953.

It is up to the State to implement, through these supervisory decisions, the criteria that it intends to assert. When the initiation of new activities compatible with the specialty is made by majority or minority subsidiaries, it is up to the public establishment to make its participation subject to conditions allowing the representatives of the State to sit on the boards of directors of EDF and GDF to be sufficiently informed of the way in which the activities in question are carried out.

In addition, if it is open to the State and to public establishments to specify in the stipulations of the plan contract (EDF) or the contract of objectives (GDF) a common conception of the criteria and methods of development of these activities, of such provisions do not have the scope of standards whose application third parties can invoke.

If the State intends in principle to prohibit EDF and GDF from certain of the activities admitted above, it is up to it to specify for this purpose by law, the constitutive rules of the establishments.

3- With regard to competition rules:

the foregoing developments have neither the purpose nor the effect of defining the body of rules resulting both from the ordinance of 1 December 1986 and from community law in which the activities carried out by EDF and GDF in competitive sectors must in any event cause to insert. It follows that activities, which in principle would comply with the specialty of the establishment, could however be held to be incompatible with the competition rules if their implementation involved an abuse of a dominant position.

It is up to the institutions, under the control of the competent authorities, to ensure that the methods chosen for diversification do not incur such criticism.

4- Regarding the issue of nationalization:

finally, if the public establishments are led to take control of other companies, such acquisitions do not constitute nationalizations.

As for the exercise of control over these acquisitions, it is up to the Government, in application of the decree of August 9, 1953, to proportion the acquisition of diversification holdings by EDF and GDF to the limits traced above.

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