|Council of State
N ° 57302
Published in Recueil Lebon
M. Reinach, Rapporteur
M. Latournerie, Government Commissioner
Reading of May 13, 1938
IN THE NAME OF THE FRENCH PEOPLE
Seen, recorded at the Litigation Secretariat of the Council of State, on December 30, 1936 and February 17, 1937, the summary request and the amplifying memorandum presented by the Primary Fund “Aide et Protection”, whose head office is in Paris, 23, rue Tiphaine, acting prosecution and due diligence of Sieur Guibert, its President, and by Sieur Fauvel, cashier of the said Fund and cashier of the Mutual Aid Society of the same name, and tending that the Council please cancel, for excess of power, insofar as it covers the primary funds, a decree, dated October 29, 1936, relating to the accumulation of jobs; Considering the law of June 20, 1936; Considering the law of April 1, 1898 and the decree of October 30, 1935; Considering the laws of October 7-14, 1790 and May 24, 1872;
Considering that under the last paragraph of article 1 of the law of June 20, 1936 “will be suppressed the accumulation of pensions, of any remuneration and of functions contrary to the good administrative and financial management of the country”;
Considering that it follows both from the terms of the law and from its preparatory work that this provision covers all agents belonging to a body responsible for the execution of a public service, even if this body has the character of an “establishment private “;
Considering that the social insurance service is a public service; that its management is entrusted in particular to so-called primary funds; that, consequently, and notwithstanding the circumstance that, according to article 28, paragraph 1, of the decree of October 30, 1935, these are instituted and administered in accordance with the prescriptions of the law of April 1, 1898 and thus constitute private organizations, their agents could legally be included among those who are prohibited from exercising any other job;
Considering, on the other hand, that no obligation fell on the government to enact, in the case of the combination of a post dependent on a public service and a private post, provisions similar to that which it planned to reduce the prohibition of cumulation between public jobs;
DECIDES: Article 1: The aforementioned request from the “Aide et Protection” Primary Fund and from Sieur Fauvel is rejected. Article 2: Dispatch of this decision will be sent to the Minister of Finance.
Analysis by the Council of State
By the Primary Fund “Assistance and Protection” decision, the Council of State judges that legal persons governed by private law can manage public service missions.
After the Conflict Tribunal had admitted that legal persons governed by public law could engage in the management of certain activities under the same conditions as a private enterprise (cf. TC, January 22, 1921 , Société commerciale de l’Ouest d’Afrique, p. 91), the Council of State allowed public service missions to be managed by legal persons governed by private law. As in the Bac d’Eloka case , jurisprudence had already taken a first step in this direction with the decision of December 20, 1935. (Ass., Etablissements Vézia, p. 1212) where it recognized the possibility of using the expropriation procedure for the benefit of private law bodies whose mission was in the public interest. But the Primary Fund “aid and protection” decision extended the scope of this solution by ruling that bodies governed by private law can manage public service missions.
This decision, coming after that of the Bac d’Eloka, was at the origin of a temporary crisis in the notion of public service, insofar as the traditional link that specialists and observers had believed to be able to detect between the public service, public persons and the prerogatives of public power.
Of course, the fact of entrusting the public service to a private person was not new: as early as the 19th century, public service concession contracts had been concluded with private entrepreneurs. The innovative aspect of the Primary Fund decision was that the private organizations concerned had not been entrusted with a public service mission by contractual means, but had been instituted by the public authorities.
In the silence of the texts, it is often up to the judge to determine whether an organization should be regarded as being under private law and whether the mission it performs is a public service mission. This is in principle the case when the body, while mainly retaining the character of a body governed by private law, has been entrusted by the public authorities with the exercise of a mission of general interest and is subject to ‘a control by the administration.
The private bodies responsible for a public service mission form a group made up of establishments as diverse as local and regional social security funds, sports federations, professional orders as well as isolated structures. As with industrial and commercial public services, their hybrid nature implies the application of rules of public law and private law, although the latter remains predominant. But the case law of the Council of State on strikes in public services applies to these bodies and their unilateral acts are regarded as administrative when they have been taken for the performance of the service by virtue of prerogatives of public power,