European issues
Subject: Public Service and Community law are compatible?
Introduction:
The news highlights the questioning of certain public monopolies. Sanctions by the Court of Justice of European Communities are imposed on France Telecom or about the tendering of EDF-GDF.
Public service activities and means sometimes general interest missions, sometimes all public or private bodies in charge of missions of general interest . It was organized exclusively by the standards of domestic law until the advent of Community law, the result of European integration. Under international law, EU law is binding on signatory states. At the instigation of the European Commission, the Community Court punishes violations of the law of the European Union.
However, the liberal rules enacted by the right are in contradiction with the principle of service public. Charging privileges, monopolies and public in general any breach of the principles of competition law aimed at once serve the public interest therefore oppose the liberal vision of the European Union. Certainly arises the problem of compatibility of public service to the French and EU law. Is this a fundamental incompatibility or apparent? A reconciliation is possible? How to ensure legal consistency of domestic law and Community law? A divorce between
apparent public service to the French and EU law is undeniable (I), but a marriage can and should take place between public service and community law (II).
I) An apparent divorce between public service and community law
one hand, differences between French law of public service and Community competition law are found. On the other hand, the coexistence of two legal systems is a source of difficulty.
A) Differences between French law and public service
Community law should specify the design of public service in French and to show the difference of optical liberal European Union.
Because of the specificity of public service, namely interest, these activities are not subject to the same rules that apply to private persons in their activities that fall outside the public service. Therefore, the public service activities must be under a legal exemption to private law . They are applied to particular obligations, called "laws of Holland." Rolland These laws consist of three basic principles: these principles of equality, continuity and mutability of public services.
Under French law, the principle of equality is one of the cornerstones of our legal system. French administrative court has to ensure its respect in the national context, even when adapting an objective difference in situation may lead to inequity of fact, however, that equality is service of a higher principle in Community law is competition. This essential difference between the national legal and European legal case law explains the discrepancy.
B) The coexistence of Community law and public service: a source of difficulty
The difficult cohabitation results in the necessary facilities to accommodate the European competition law. Stopping
Crow May 19, 1993 asked limits on public monopoly that is no longer justified since it is a commercial service complementary to the basic service of urgent necessity for the interest général.Tant the additional service and accessory does not jeopardize the service of urgent need, there is no reason to restrict competition. National law must take note of this distinction. Legal traditions collide, in this case to case law.
Paradoxically, through an exception to the principle of equality accepted by the courts that the law conflicts with EU law.
Under certain conditions, preferential tariffs may be granted to residents for access to local public services. This choice is intended to ensure jurisprudential rather than a strict equality before the public service but equality in different categories of user and coupled to a "fairness" among users of different categories.
In a decision dated May 10, 1974 (Dénoyez and Chorques) on charges of ferry service linking the island of Ré then to the mainland, the State Council defined the conditions of this deviation from the principle of equality. Thus, to be authorized, setting different rates for various categories of users of public services must be either the result of a law is justified by the existence of significant differences between the situations of users, either by necessity general interest in connection with operating conditions of the service or work.
discrimination based rate on the debit is recognized by the administrative law judge when the service is not mandatory. This is true among children living in a commune and the other for the pricing of a school canteen (October 5, 1984 EC Commissioner for the Republic of Ariège).
The price discrimination based on family resources is also admitted by the Council of State (December 29, 1997 - Common and Common Gennevilliers Nanterre). In its decision of 16 January 2003, the Court of Justice will against the jurisprudence of the State Council. The Commission urged the Court of Justice (ECJ) an appeal against the Italian Republic, on the grounds that as discounted entry to local museums as a function of age, residence and nationality were contrary to Community law.
The contradiction between the law of the State Council and the Court of Justice explained by differences in intrinsic sources of law that each of the two judges are respectively responsible, in this case, to apply.
Following the arrest of 16 January 2003 the ECJ, many French towns wonder about a possible challenge to the preferential tariffs for their citizens to access public services. Anyway, a real question on compliance with European law preferential rates for access to local public services arises and calls for adjustments in the national legal order.
Transition: Of course, design differences between French public law and EU law are undeniable. Taking into account the legal standards Community law does not go smoothly. Notwithstanding these realities, the incompatibility of public service and community law is not insurmountable. To what extent can we reconcile the two legal orders on the issue of public service?
II) A marriage between possible and necessary under French law right of public service and community
Efforts are made to both sides to balance public service and community standards (A). The rule of Community law ensures legal certainty (B).
A) shared efforts between the two legal systems: a necessary reconciliation
the one hand, EU concessions to liberalism permit derogation allowing the maintenance of public services. On the other hand, Community law is reflected in domestic law.
Europe is based on free competition, and has been slow to recognize the existence of public services. Strictly speaking, the Treaty of Rome did not condemn the utility. It only imposes conditions and a framework for its existence. In the absence of a notion of public service in EU law, the concept of universal service was developed at European level
The European Commission defines this concept as a set of general interest requirements which should be satisfied in any Community, some activities. She adds that the obligations resulting aim to ensure all access for all to essential services, quality and affordable . It is therefore based on core principles of public service that we know in French law: equality, continuity. In this context, the monopoly of national origin can be justified. Article 86 ex-90 of the Treaty stipulates that Member States, when they grant special or exclusive rights to companies or their enterprises need not to put or not put them in contravention of competition law. Subsection 2 states that for his business in charge of general economic interest are also subject "to the extent that the application of these rules does not obstruct the performance in law or in fact of the particular tasks assigned to them." Article 86 ex-90 on the imperative of market forces and 86 ex-90 the requirement of state power to design economic policies and serve its public service missions. The public service is the exception to the market. It exists only as a transgression of the market system. It is legitimate only if it corresponds to the European notion of general economic interest in EU terms. There
Two principles are at work in the Treaty of Rome, the market on the one hand, the public service on the other. Both contribute must contribute to the economic and social development. The market provides the overall economic prosperity for its efficiency. The utility guarantees everyone a minimum and promotes social life. Market logic and sense of public service are therefore two alternative instruments for the same general purpose that binds the Treaty of Rome: the prosperity of the consumer.
The concept of service of general economic interest keeps public monopolies, avoiding and privatization and complete dissolution of these services if the term of service of general economic interest is not expressly defined by the Treaty of Rome, the conditions under section 86 ex-90, however, are further identified. The recognition of a service of general economic interest within the meaning of Article 86-2 ex-90-2 requires four conditions.
First, the company must rely on an act of public service delegation even if the Community leaves Member States free to define missions of general interest, and granting the companies that are responsible special or exclusive rights necessary to carry out its tasks.
Second, the firm must establish that the particular tasks entrusted by the public are many MIEG
Thirdly, Article 86-2 provides that competition rules can be applied only to the extent that "the application of these rules does not obstruct the performance in law or in fact of the particular tasks assigned to [the company]. " The breach of the rules of competition must be necessary even if the company provides a service of general economic interest. A proportionality test allows judges to censor Community unfair barriers to competition under the guise of service of general economic interest.
Fourth, compliance with the Community interest remains.
noteworthy is the inclusion of Community law regarding the legality of certain economic activities from public and private corporation. The best example of this proactive Liberal French legislature is the order of 1 December 1986 on freedom of prices and competition.
B) The rule of Community law in domestic law: forced marriage
The primacy of Community law is effective and ensures legal certainty. And the invocation of EU rules into national law challenging the legality of certain public services.
In international law, treaties are binding on states to avoid their responsibility. For Community law, the court, the decision in Costa v. ENEL (July 15, 1964), affirmed the principle of primacy of Community law. Although the Treaty of Rome does not pose a general principle of rule by stopping Costa, the Court cites not only the terms of the Treaty, but also its spirit. By 1963, in Van Gend en Loos, she said the integration principle of Community law into national law. Without explicitly stated this rule in the Treaty is therefore the case that the rule of Community law has said.
In Van Gend en Loos, the Court of Justice of European Communities had tempered his position by stating: "States have limited, albeit within limited fields, their sovereign rights." The terms of the decision in Costa affirm this principle more clearly: "The Treaty established a own legal order, integrated legal system of Member States and which is binding on their courts. "The uniform application of Community law is thus guaranteed.
The State Council has long refused to uphold the treaties on the laws after opposites (EC 1 March 1968, the General Union of Manufacturers meal of France). In 1989, he finally resigned himself to the principle of primacy of Community law based on Article 55 of the Constitution (EC 20 Nicolo October 1989).
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