Most of the developed states are aware of what public service is through facts. But only a few of them have come up with a legal definition of what it really is. In French Administrative law, the notion of public service has never been and will never be easily displayed. Major academics are still contemplating and discussing to formulate the right legal definition of ?public service'. Following the EC treaty of Rome and especially the Maastricht Treaty, the concept of ?public service' appeared in the European law. As it is shown in the C-188/89 Foster and others v British Gas plc case, member states have generated a definition for ?European Public Service'. The aim of this article is to show how the ECJ is influenced by French administrative law while formulating new legal concepts. Firstly a brief summary with respect to the decision is made (A). Then we will expose the French version of the Public Service (B). And finally we will see how useful the French law is for the ECJ when a theological issue has to be dealt with (C).
In the Van Gend en Loos case1 the Court for the first time determined that a Treaty provision had direct effect in the national courts. After having assessed the ‘spirit' and the ‘general scheme' of the EEC Treaty the Court concluded that the Treaty had created a ‘new legal order' in which ‘independently of the legislation of Member States, Community law …not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage'. The theological theory of direct effect was created.
Following this case, direct effect also applied for Regulations and Directives. Article 249 (ex 189) states that 'Regulations are directly applicable in all Member States'.
[...] We have just seen that the concept of ‘Public Service' has been exported from the French Conseil d'Etat Case Law. But other French legal concepts are used by the ECJ as well. For instance, concerning the Article 234(3) (ex-177(3)) about obligation to refer to ECJ for preliminary rulings8 has given the ECJ another opportunity to use a French Legal Concept: The theories de late Clair. In the CILFIT9 case, ECJ ruled that : third paragraph of article 177 of the EEC Treaty must be interpreted as meaning that a Court or Tribunal against whose decisions there is no judicial remedy under national law is required, where a question of Community Law is raised before it, to comply with its obligation to bring the matter before the Court of Justice, unless it has been established that the question raised is irrelevant or that the Community provision in question has already been interpreted by the Court of Justice or that the correct application of Community Law is so obvious as to leave no scope for any reasonable doubt. [...]
[...] But the French public Law influence does not limit itself to European Law. For instance in Belgian public Law definition of 'Public Service' is also an exact reproduction of the French definition11: ' Thus Public Service is a body created and controlled by the governments to lead the way to satisfy a collective needs 12'. To sum up we can affirm that Community Law is influenced by French legal concepts, and that Foster case is a good example of this argument, but would it create difficulties while everyone is talking about unification of Community Law? [...]
[...] The result of this case is double: firstly the ECJ confirms that individuals are not allowed to rely on Directives doing an action against any other individuals (persons and undertakings), and Secondly introduces a French volatile legal concept that has been used for ages in French administrative Law. But for sure, the ECJ do not waste its time on writing a legal precise definition of what this 'Public Service' is. B. A mirror definition of the French Public Service The Foster Case shows an evident link to French administrative Law. [...]
[...] According to Marcel Waline6 this important decision draws ‘indications (clues)' to identify what is or is not a part of a Public Service mission. To him, four criteria's are to distinguish for such identification: 1. A general interest mission, which has always been needed to do so A control exercised by the Administration, what means in broadly terms a judicial control by the Administration. He does regret that the Court avoids defining what it is Some special prerogatives And a judicial control exercised by a guardianship authority. [...]
[...] 28/06/1963 Narcy Revue de Droit Public Code des Tribunaux Administratifs et des Cours administratives d'Appel, Dalloz Obligation to refer to the ECJ in case of interpretation requirement: art 234(3) EC Treaties Case 283/81 CILFIT CE Ass. 29/06/1989 Groupe d'information et de soutien des travailleurs immigrés See A. MAAST, Precis de Droit Administratif Belge, pp. 36-37, Story Liège Court of appeal février 1950. [...]
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