What principles for public services ?
Fanny Petit, 2007
This fact sheet presents the different principles that govern public services in France and then in Europe. The declarations are a priori compatible, but it turns out that the objective of competition imposed by the European Commission tends to obtrude the functioning of public services in France and in particular its first principle : the republican principle of equality.
The principles of equality, continuity, mutability and accessibility have legal force - they have been enshrined by the courts since the end of the 19th century. The principles of transparency, neutrality and reliability are found in the Charter of Public Services (1992). Like those debated at the European Union level, they are the subject of intense public debate.
This is both the fundamental principle of public service and one of the values of the Republic. Public services are the main instrument of this principle and equality before the public service and equality of access to public services is decisive for the accomplishment of this « mission ».
« The principle of equality implies that no distinction should be made between users as regards access to the public service and the service provided itself. Everyone must be able to benefit from the services of the public service without being in a position of inferiority because of his social condition, his handicap, his residence, or any other reason relating to his personal situation or to that of the social group to which he belongs.
But equal rights do not mean uniformity of benefit. The principle of equal access and equal treatment does not preclude differentiating the modes of action of the public service in order to combat economic and social inequalities. Responses to needs can be differentiated in space and time and must be differentiated according to the diversity of users’ situations.
The social transformations that have been taking place for more than twenty years accentuate both the importance of the principle and the difficulties of its implementation. They have resulted in multiple controversies, such as the one about equity, which some have perceived as « equality on the cheap « .
The importance of public services induces a principle of continuity. The continuity of public services is the concretization of that of the State and it can also be seen as a corollary of that of equality, since the rupture of the service could introduce discrimination between those who benefit from it and those who are deprived of it.
« Continuity is of the essence of public service. It requires the permanence of essential services for social life such as security services (police, firemen), health services (hospitals), communication services, certain technical services (electricity, gas, water), etc. It implies that all services must function regularly, without interruptions other than those provided for by the regulations in force, and according to the needs and expectations of users. It also implies, in its current acceptation, the presence of renewed and versatile public services in rural areas and in urban neighborhoods in difficulty1 ".
In a period of rapid transformation of technologies and needs, continuity therefore implies adjustments and is linked to the principle of adaptation of services.
The main controversy to which the application of the principle of continuity gives rise is that of its compatibility with the right to strike in public services, an expression of social conflict, particularly in transport.
Adaptation is necessary to adjust technologies to needs, both of which are changing rapidly; when the requirements of the general interest change, the service must adapt to these changes.
Based on technological, economic and social changes (or even mutations), this principle has difficulty finding its translation into law, where it most often takes the form of questions relating to the creation or abolition of a service. Since a public service does not exist on a permanent basis by its very nature, and since all of them are, in the last resort, a matter of choice by the public authorities, it is practically impossible to deduce from the principle of mutability a strict obligation for the manager or a precise right for the user. On the other hand, it can mean an obligation for the latter to comply with the changes required to adapt the service to changes in the general interest.
Accessibility and simplicity are the very conditions of a service oriented towards users.
« The complexity of administrative rules, the inflation of legislative and regulatory texts are rightly denounced and the opacity of certain rules can only lead to misunderstanding between public services and the user-citizen.
Complexity is partly unavoidable in a society that is itself increasingly complex and diversified, and for an administration that strives to respond to increasingly stringent requirements and increasingly personalized demands. The existence of clear and comprehensible procedures or texts is, however, a guarantee of the rule of law in our republican society: neutrality, equality and respect for the law under identical conditions for all, depending on the situation of each person}.
The effort to simplify and clarify administrative procedures is therefore an essential lever for improving the relationship between public services and their users}.
Public services must strive to combat the inflation of standards of all kinds and prepare new legal rules only insofar as the problem posed cannot be resolved by other means}.
They must constantly seek ways of reducing the number of procedures and formalities that users must complete in order to benefit from a service or benefit, and all users must be able to be assisted by public service agents in completing the formalities that concern them}.
The service provided to the user is the purpose of administrative action. The internal constraints of public services must not therefore weigh on the user. Thus, measures beneficial to the user must not be set aside on the pretext that they complicate the internal activity of public services. Of course, this rule must be linked to an overall cost-benefit balance, and the measures must not unjustifiably increase the burden of public services, which in any case is borne by the taxpayer}.
Public services must also be accessible in terms of geographical location. This applies to administrative presence in rural areas as well as in troubled urban neighborhoods. New forms of cooperation between public services must be sought on a case-by-case basis, according to local needs and specificities, to ensure that public services are present and accessible throughout the country}.
These local public services may take the form of pooling resources, one-stop shopping, joint training, or possibly functional reorganizations leading to the regrouping of services or the redistribution of local action districts}2 ".
The principles set out below are primarily political and continue to be debated.
The Public Services Charter introduces a principle of neutrality: « As a corollary of the principle of equality, neutrality guarantees free access for all to public services without discrimination. Intimately linked to the nature of the republican State, to its role as guardian of republican values, neutrality must be part of the daily activity of public services. It implies the secularity of the State, the impartiality of public agents and the prohibition of any discrimination based on political, philosophical, religious or trade union convictions, or on social origin, sex, state of health, disability or ethnic origin.
All users therefore have the same rights with regard to the administration and the procedures must guarantee its impartiality3« .
Transparency and accountability allow citizens and users to ensure that public services are functioning properly and to assert their rights. This requirement was reinforced in the mid-1980s in response to various scandals revealing that public service delegation agreements provided the basis for the hidden financing of political parties.
political parties. And that, more generally, the rules for awarding public contracts were too often not respected by local authorities.
« The principle of transparency allows any citizen or user to ensure the proper functioning of public services.
Every user has a right to information on the action of public services and the latter are obliged to inform users systematically (media, press, brochure, guide). Transparency must be conceived as a condition for dialogue and consultation, but also as an instrument of control of the action of public services by the users}.
The action of the administration must respect certain procedures (public inquiries, consultative procedures, motivation of decisions).
The administration must endeavor to follow an adversarial procedure prior to the decision in order to allow the citizen to put forward his arguments. In many cases, it is obliged to do so}.
In the same way, public services must, whenever possible, consult their users before making decisions affecting the organization and content of the service provided in their basic units}.
The transformation of public services requires an objective evaluation of the results of this action and, on this basis, measures to measure their efficiency. The evaluation of public policies and actions is a duty imposed on all services and at all levels of the State. It is the guarantee of the efficiency but also of the effectiveness of public service}.
Any user may obtain communication of administrative documents within the limits of the legislation in force. They may obtain communication of documents concerning them by name and record their observations in an annex to the document communicated}.
The public services must inform the user of the reasons for the decision taken. They must inform the user of the possibilities of complaint and the means of appeal} ".1
Trust and reliability
Trust and reliability require that we behave in all circumstances as loyal partners.
« The user has the right to legal security and reliability in his relations with the administration and public services. This means in particular that :
the State must clearly establish the terms and conditions of operation of its public services ;
the rules must be stable : if changes are imposed by the evolution of society or circumstances, the new rules must be put into effect in a way that allows the user to adapt under the best conditions.
In the economic and social field, the reliability of public services is a major issue at a time when the European market is opening up. Indeed, companies that want to establish themselves and thus create jobs will more easily turn to countries that present the most legally secure and efficient administrative environment.
An evaluation of the existing rules will have to be carried out and, as far as possible, impact statements estimating both the direct and induced costs for the administration and users will be established for the new rules. The work of codification of existing texts, undertaken by the Codification Commission, will be continued with the aim of clarifying the state of the law. Relations with users and customers of public services must be thought of not in terms of obligations and suspicion but in terms of partnership and mutual trust.
Finally, public services must be able to recognize their errors, correct them as quickly as possible and draw all the consequences both for users in terms of possible compensation and in terms of regulation and organization of services.
In this respect, public services must implement without delay any court decision concerning them4 ".
The European Commission’s approach is based on 9 principles
Allow public authorities to be close to the citizens : services of general interest should be organized and regulated as close as possible to the citizens and that the principle of subsidiarity must be rigorously respected.
Achieving public service objectives in open and competitive markets : the Commission remains of the opinion that an open and competitive internal market on the one hand, and the development of high quality, accessible and affordable services of general interest on the other, are compatible objectives : under the EC Treaty and subject to the conditions laid down in Article 86-2, the effective fulfilment of a mission of general interest prevails, in case of tension, over the application of the Treaty rules.
Ensuring cohesion and universal access : access for all citizens and enterprises to high-quality and affordable services of general interest throughout the territory of the Member States is essential to foster the social and territorial cohesion of the European Union. In this context, universal service is a key concept that the Community has developed to ensure the effective accessibility of essential services.
Maintaining a high level of quality and security : in addition, security of supply of services, in particular security of supply, is an essential requirement that must be taken into account when defining public service missions. The conditions of service provision must also provide sufficient incentives for operators to maintain adequate levels of investment over the long term.
Guaranteeing the rights of consumers and users : these principles concern in particular access to services, including cross-border services, throughout the Union and for all population groups, affordability of services, including special schemes for people on low incomes, physical safety, security and reliability, continuity, high quality, choice, transparency and access to information by providers and regulators. The implementation of these principles generally requires the existence of independent regulators with clearly defined powers and duties. These include enforcement powers (means to control the transposition and enforcement of universal service rules), and should also include provisions for the representation and active participation of consumers and users in the definition and evaluation of services, the provision of appropriate redress and compensation mechanisms, and the existence of a sunset clause allowing for the adaptation of requirements to changing user and consumer needs and concerns, as well as to changes in the economic and technological environment
Monitoring and evaluating the operation of services : sharing the view most commonly expressed in the public consultation, the Commission believes that any evaluation should be multidimensional and cover all relevant legal, economic, social and environmental aspects.
Respecting the diversity of services and situations : any Community policy on services of general interest must take due account of the diversity that characterises the different services of general interest and the conditions in which they are provided. This does not mean, however, that there is no need to ensure consistency of approach across different sectors or that the development of common concepts applicable to several sectors is unnecessary.
Increasing transparency : this principle should apply to all aspects of the implementation process, including the definition of public service missions, the organization, financing and regulation of services, as well as their production and evaluation, including complaint mechanisms.
Ensuring legal certainty: the Commission is aware that the application of Community law to services of general interest could raise complex issues. It will therefore take continuous action to improve the legal certainty of the application of Community law to the provision of services of general interest, without prejudice to the case law of the European Court of Justice and the Court of First Instance.
1 La Charte des services publics, (1992), La Documentation française
Texts by Jean-François Tribillon and Philippe Brachet