Constitutional and Economic Public Services: Management and User Rights
Constitutional Public Service Administration
Correlation Between Public and Private Sectors
A dualistic approach to constitutional public service helps determine the correlation between the public and private sectors. This approach:
- Provides broader coverage of government action.
- Enables private sector performance.
Public Service Requirements
Public service for the public sector requires:
- An express legal decision (by law).
- Limited and specific character, requiring consideration of essential services by the legislature.
- Constitutional Court appreciation is possible.
Public Ownership and Monopolies
Public service for the public sector is publicly owned but not necessarily a monopoly. Management can be:
- Direct (public monopoly): Administration provides the service directly.
- Indirect: Administration holds ownership, but a private company provides the service, setting prices, schedules, and other conditions.
Public monopolies are permissible under specific circumstances (need for unified management and strict public control). Private monopolies (a company managing public service) are admissible, often justified by the investments required of the concessionaire (adapting the service to new technologies).
Economic Services of General Interest
Competition and Public Service
Competition in the European internal market has led to the disappearance of traditional public service features. Private initiatives have replaced some public services after obtaining authorization. This aims to reconcile free competition with maintaining public service obligations and universal service requirements.
Community Influence and Key Concepts
Community influence on the concept of public services is non-uniform. Key activities include:
- Nuclear activities: Reserved for the government (public order and safety).
- Benefit activities: Do not compete with market competence (immigrant health).
- Competitive activities: Europe seeks to liberalize, such as utilities.
Three concepts are distinguished:
- Services of general interest: Subject to public service obligations.
- Services of general economic interest: Subject to specific public sector obligations, with economic or commercial content (e.g., transport networks, energy, and communication). Within these services, the concept of universal service develops (requirements subject to the Community).
- Notions of public service: Designates both the service agency and the interest task entrusted to the agency.
Community Concern and Treaty of Amsterdam
The Community aims to recover the idea of public service. Article 14 of the Amsterdam Treaty seeks a balance between public and private sectors in settling principles for social and territorial cohesion to the general economic interest. Protocol No. 26 (Articles 1 and 2) of the TFEU stresses the importance of services of general interest.
Guiding Principles of Public Service
Principle of Continuity
Services must be guaranteed permanently or regularly, depending on the general interest. Minimum services are necessary even during strikes due to the prevalence of public interest.
Principle of Equality
This principle ensures non-discrimination in service admission and treatment. Reasonable and proportionate differences may exist based on social purpose, business strategies, or neighborhood conditions.
Principle of Universality
This principle complements the principle of equality, focusing on service coverage, ensuring accessibility for all recipients.
Principle of Mutability (Ius Variandi)
This principle allows for altering service conditions when circumstances advise. For competitive services, alterations are observed in regulatory conditions or imposed public service obligations.
Principle of Quality (Art. 4 LOFAGE)
Defined by variables related to specific aspects of basic public service principles (volume, performance, accuracy, coverage). The Administration has powers to ensure and improve service levels. EU directives set specific quality standards for some general economic interests.
Principle of Affordability
Derived from the concept of economic services of general interest as elements of economic and social well-being. Affordability doesn’t imply free service (although some services are constitutionally free). Financing is typically through rates or public prices (for services provided by the Administration), or private rates set by the Administration (for services provided by a concessionaire). For services of general economic interest, the Administration sets maximum prices or may even offer free services in certain locations. Generally, fees should cover service costs according to the equivalence principle. The law allows for lower fees than the service cost, with the budget covering the deficit, taking into account the user’s ability to pay.
Management Methods of Public Services
Options include direct (public) management, indirect (private) management, and joint management.
Direct Management (Public)
Carried out by the public body through various methods:
- Minimum autonomous management: Simple organic specialization within the ordinary Administration.
- Creating a public body: Agency with budgetary, contractual, and property autonomy, but subject to Administration rules.
- Creating a public corporation with public capital: Responsible for managing the service but controlled by the Administration as head of corporate capital.
Indirect Management
Refers to legal forms for management contracts and public services (usually contractual), including:
- Concession of Public Services:
- A private entity (usually an S.A.) assumes the risk of public service management with benefits established in the contract, including rates set by the administration and other payments.
- The concessionaire holds delegated police powers and benefits from certain public powers (eminent domain).
- The Administration can rescue the concession, extinguishing the contract with indemnity for the remaining period.
- Other forms of indirect and mixed management:
- Concert: Private individual has suitable infrastructure and facilities.
- Concerned management: Administration has facilities where a private entity manages the service.
- Mixed economy society: Service managed by a partnership with public and private capital.
Provision of Services: Service Standards and User Statute
Legal Relationship Between User and Service Provider
The relationship is predominantly objective (excludes autonomy) and public (although private legal elements exist). It is established through formal techniques, either public (unilateral administrative act) or private (contract). The user is subject to the disciplinary powers of management and the service provider.
User Rights
User rights are set by each service’s regulations. General rights include:
- Access to service (sometimes conditional).
- Enjoyment of service in terms of predetermined quality and quantity.
- Involvement in shaping the service.
Letters of Service introduce management formulas from private enterprises to improve efficiency (RD 1259/99 regulates Service Letters for the AGE).
User Duties and Obligations
Users must observe service rules established in regulations. Non-compliance can lead to temporary deprivation of service or penalties. Compensation is established for service use.