General interest

The general interest is what is for the Public property.

The idea of general interest appears at the 18th century substituent with that of Community property. Without precise direction it indicates at the same time the sum of the interests of the individuals who compose the Nation and at the same time an interest suitable for the community which would transcend that of its members. Jurisprudence is directed towards the second definition but immediately undergoes a double Marxist criticism (interest of the dominant class) and liberal (negation of the individual).

None the texts of the Bloc of constitutionality French mentions general interest contrary to the Spanish Constitution S and Portugueses who give at the same time a precise direction and scope of application to this concept. It thus remains at the same time diffuse and badly defined.

This vague character of the general interest is all the more problematic as it did not slow down its use and that this concept impregnates the public Droit to the point to be almost the raison d'être of its existence.

To take the example of France, the Council of State as the Constitutional council usually refer to the general interest in their stops and did of them one of the bases of the limitation of the Public freedoms. Fact even of the inaccuracy of this concept the administrative judge with however brought to reinterpret it systematically what could involve certain drifts due to an overuse of the concept.

It should be noted that, for the adherent countries with the the Council of Europe, the European Cour of the human rights can impose interpretations more favorable to the right of the individuals.

The concept of general interest is with the base even of the specificity of the public law

The general interest is the criterion of definition of the great modes of the public law

The great notions of the administrative law are defined in relation to the general interest

All the specific schemes which created the Public right find their raison d'être in the existence of an objective of general interest which only justifies that they profit from an exorbitant mode of the private law.

This is why the Council of State defined the majority of the key notions of the public law in reference to the general interest and in particular those of Public service, public Travail, Law and order, Public domain which exists only by reference to the concept first of general interest.

Thus the concept of public service is defined materially as an activity of general interest managed by a public person or under her narrow control (THIS Employers' federation commercial of Nevers May 30th, 1930). The evolution of the concept of public service was not possible that because that of general interest is it also extended with time. New activities indeed did not cease being added to the objectives of the community. Thus one could attend the recognition of a social general interest (TC 1955, Naliato ), or of an economic general interest.

Through the concept of public service the concept of Public domain, is it also marked by the general interest since jurisprudences civil and administrative defined it as the whole of the goods which are currently affected to the users of the public service or who are arranged for the exploitation of a public service.

The concept of public work is also defined in reference to the idea of general interest since jurisprudence defines them as a real estate by nature or destination " belonging to a person public and affected either with the use of the public, or with a SP, or a goal of utility générale" (THIS 1965, Arbez-Gindre ). It is the general interest which founds the specific regime from which the public works that profits from intangibility, according to the proverb, " Work badly built does not destroy point" , (THIS 1853, Robin of Grimaudière ).

The fourth concept which is defined in relation in the general interest is that of TP. The TP is carried out " for the account of a public person and with an aim of utility générale" (THIS Common June 10th, 1921 of Montségur ) or “carried out by a public person or under her direction within the framework of a mission of SP” (TC March 28th, 1955 Effimieff ).

The general interest is not only used by Coneil of State but very often seems the base of a legislative text or lawful. The general interest then justifies a whole series of means of action of the administration. In addition, it can sometimes happen to have recourse to close concepts such as the public utility as regards expropriation. This public utility results in a clean interest for the community.

The means of actions suitable for the administration and its mode of responsibility, exorbitant for the common Right, are subordinated to the existence of a reason for general interest

It is thus the existence of an objective of general interest which founds the existence of the specific regimes of the public law. But it is also the general interest which founds the existence of the exorbitant means of actions of the private law used by the administration.

The unilateral Acte is impregnated general interest because the administration can resort to the exercise of prerogatives of public power only with a one aim of general interest (e.g. the privilege of the precondition). Besides the administrative act taken in a foreign objective with any public interest constitutes the standard case of misuse of power (THIS Pariset Nov. 26, 1875). In fact by a singular inversion the existence even of a Administrative act makes suppose that of the general interest which underlies necessarily its existence. (THIS Blanchard and Darchy May 27th, 1949).

In the same way the public service contracts make them also the object of various exorbitant prerogatives of common right (unilateral modification, made of the prince…). Who are the emanation of the general interest and justify themselves only by him.

Finally the exorbitant mode of the common right of the administrative responsibility which was founded by the stop Blanco (THIS February 3rd, 1873), has as base the general interest which only justifies that the recourse to the heavy fault is necessary to engage the responsibility for the administration.

It is also the concept of general interest which is used for the Council of State to draw aside the liability for a law estimate that any law occurred in an general interest and preeminent implicitly excludes the will to repair the damage born of a law (in this direction THIS 14 Janv. 1938 Comp gen of Great fishing ).

The general interest is used as reference to justify the administrative action and the breach of liberty

The recourse to the concept of general interest makes it possible to justify the exemption from certain texts or principles general. Generally, the general interest threatens individual freedoms. It is the role of the judge who to reconcile them.

Law and order and general interest

The breach of liberty is generally justified by the judge by the concept of law and order which is a component of the general interest. Any reason for law and order is capable to justify an illicit attack with a right or a freedom. For the Constitutional council, the law and order is an objective of constitutional value to the name of which the legislator can be founded to restrict certain freedoms. But this last very often prefers to call upon the general interest directly.

As for the Council of State, the concept of law and order is in the center of the theory of the administrative police force which it built. It is only the only maintenance of law and order which justifies that an authority of police force carries reached to a right or a freedom.

The stop of the Council of State of January 24th, 1975 Ministre for information C Company Rome Paris films clearly envisages a mode of conciliation between the general interest (here the order pPublic) and public freedoms setting up a mode more or less identical to that of the Bilan cost favors Expropriation S and to some extent extending the Principe of proportionality.

The general interest justifies the infringements with the equality and the property right

It is the general interest which also justifies all the attacks carried to the Property right. The general interest is constantly recalled for the constraints, pre-emption, and expropriation. The respect of the assessment cost advantages required by the EC (THIS 1971 New Ville Is and THIS ESA 1972 co. Marie of the Assumption ), is the mark. Here more utilitarian vision of the general interest.

The attacks are founded on the general interest and more precisely on the arbitration between the various interests in presence during an expropriation.

It is always with the only name of the general interest that the attacks are justified carried to Principe of equality. Jurisprudences administrative and constitutional authorized that in different situations rules of different range are taken when well even that would undermine the principle of equality that to in the only condition which these discriminations are justified by the general interest (THIS Syndicat of the refinery of suffers French June 29th, 1951 and more recently EC, Sect., 1997, Commune of Nanterre and Gennevilliers ).

In France

In France the sorting is not always very easy between the concepts related to those of general interest: statute of Public service, exerted by the Public sector but also by the private sector, Public law, public utility (for certain associations, certain activities, certain projects of installation…), etc

The administrative judge plays the part of guarantor of the general interest and accompanies the evolutions by the concept of general interest.

The definition and the use of the general interest by the administrative judge

The general interest can be specifically defined by the Law or caused by the judge

Vis-a-vis this importance of the general interest which founds attacks with the Liberté S, the administrative judge is often brought to check the effectivity of his existence within the framework of the control which he exerts on the acts of the administration.

This control is all the more delicate as the concept of general interest is not really nowhere defined, whereas the private interests and public freedoms which are attached on its behalf are them obvious and clearly visible. Consequently it is at the very least complex to note the existence of this general interest on which it is however based often.

When the general interest results from the texts, it is then easy for the judge to apply it. The judge is satisfied to check that the administration conformed to the objective of general interest which was assigned to him. But, in good number of cases, there does not exist any criterion clearly offered to the judge to check if the general interest exists and the judge is led “to cause itself the criterion of general interest. The concept of general interest is thus variable and cannot be defined absolutely. It depends on each concrete cases and the definitions which the judge can to give some are necessarily contingent.

Within the framework of the control of legality which operates the administrative judge the reference to the general interest is generally implicit. In 15 years alone 60 stops had recourse explicitly to the concept of general interest. The judge refers to it generally explicitly only when that he opposes the general interest to interests of particularly important private individuals like the Property right or when two interests of public people are in conflict, while being useful to some extent like sledgehammer argument.

The general interest is thus more present in administrative jurisprudence than one could accept it the simple reading of jurisprudence.

The use of the general interest by the administrative judge has practical utilities and perverse effects

The necessarily contingent character of the general interest made it possible the Council of State to use this concept in order to promote various objectives.

First of all the administrative Judge used the concept like a counterweight vis-a-vis the exercise of certain capacities by the administration. Its inaccuracy enables him to bind a too discrétionnaire Compétence and to untie a dependant competence.

In the stop New Ville Is of May 28th, 1971, it is in the name of the general interest that the judge proceeds to the assessment cost favors putting out of balance the advantages advanced by the declaration of public utility and the disadvantages of an operation. In the same way it is as in the name of the general interest as the administrative Judge controls the proportionality of a measurement of police force.

Then, the general interest appears as a manner either of reinforcing or to attenuate others Norme S applicable when those seem too light or too strict to meet the needs for the administration or to satisfy the rights and freedoms of the individuals.

In substituent artificially the general interest with another Standard, the administrative Judge moves the value of the Norme of control of which it is useful, in the Hiérarchie of the standards.

The general interest can thus come to supplement a principle of constitutional value except when there is legislative screen in which case the Council of State has recourse to a general Principe of the right. It can also come to supplement the law which does not evoke it precisely but where, for the judge, it is necessarily implied. In addition, as regards control of conventionnality of the laws, the administrative judge has sometimes recourse to the general interest to make it compatible with the treated (THIS 1998, Bitouzet , compared to CEDH).

But if this vague character could make it possible to the administrative judge to better control the activity of the administration, it also could in a more criticizable way lead the Council of State to substitute its own appreciation for that of the administration.

The appreciation of the existence of the general interest indeed raises difficulties on the level of the techniques of control and legal means of control. There is with the center even this concept a subdivision between error of right or error in fact. However, the general interest does not allow the distinction between its subdivisions. It includes them, because to say if an activity of the administration is an activity of general interest raises as well owing to the fact that right. And this is found when the EC is judge of cassation. How to check the right when the judges of 1st and 2nd degrees called upon the general interest without carrying out a control of opportunity?

To control while being based on the general interest raises the difficult question of the distinction between legality and opportunity. It seems that to resort to the general interest allows to control opportunity, the public utility of the act. When the judge controls a measurement of police force, it controls certainly of it the legality but in a purely formal way since legality will rise above all from its utility. Ineluctably the Judge is brought to control an opportunity of which he is however not the judge.

Tools for safeguarding of the general interest

In France, there exist several tools for safeguarding of the general interest:

For the exploitation of the careers (mining code)

It is possible to define zones where can be authorized the exploitation of the mineral resources of the careers in the absence of the agreement of the owner of the ground, a provision envisaged in article 109 of the mining code from where usual denomination of " zone 109". This however does not exempt a carrier to obtain the authorizations envisaged by other regulations, particularly with regard to the installations classified for environmental protection.

Project of general interest (PIG)

The Project of General interest is defined by the article R 121-3 of the Code of town planning. The Plans of Occupation of the Grounds and the Information system strategic plans (RAINED today and SCOT) are, since the law of January 7th 1983, elaborate on the initiative and under the responsibility for the communes or their groupings.

the Management and Master development plan of Water (SDAGE) and the Diagram of Installation and Management of Water (WISE)

These two tools were introduced by the law on the water of January 3rd 1992. They constitute new decentralized management tools of the aquatic environments and uses, and are defined in the title 1st (police force and management of water) of the law on water (article 3 and 5).

Change and revival of the concept of general interest

A concept in crisis

The blur around the concept of general interest finished by him being harmful. Seen as simple revival of the Reason of State (cf report/ratio of the Council of State of 99) since it is used to attach the rights and freedoms and that it is badly defined.

In parallel problem of the multiplication of the people likely to define the general interest with the delocalization (rather decentralization?) and the creation of independent administrative authorities, from where risk of contradictory general interests.

Two tracks to leave the crisis:

the dialog enters the various public people or the contractualisation of their reports/ratios cf State-Areas plans. The State would become again by this skew the single formulator of the general interest. But actually in this case the general interest would become the fruit of negotiations the simple conjugation of the interests of the Public involved People.
the rise of the consultation procedures (Law of Feb. 6, 1992 on the local Referendum) but there too utilitarian algebraic vision more than voluntarist of the general interest.

In the European Union

Role of the Community legislation in the evolution of the concept of general interest

The general interest is mentioned in several articles of the Traité THIS.

Article 16: general principles, introduced by the Treated of Amsterdam in 1997;
Article 86: on the State enterprises and the companies to which the Member States grant special or exclusive rights;

the paragraph 2 precise:

“the companies in charge of the management of services of general economic interest or presenting the character of a tax monopoly are subject to the rules of this treaty, in particular with the rules of competition, within the limits where the application of these rules does not make failure with the achievement in Droit or of the particular mission which was assigned to them. The development of the exchanges should not be affected in a contrary measurement with the interest of the Community. ”

Article 90: to check if the existence of a Public service or Public Monopoly derogates from the rules of Concurrence, the European Community checks that there is existence of an general interest.

The general interest is also mentioned in article 36 of the charter of the basic rights:

“the Union recognizes and respects the access to the services of general economic interest such as it is envisaged by the legislations and practical national, in accordance with the Traité establishing the European Community, in order to promote social cohesion and territorial Union”.

Tightening of the concept general interest and idea of a conciliation with the market which has an influence on the French Droit (cf scission RF/the SNCF). After one very hard period CJCE softened its jurisprudence concerning the general interest. And admits it today more easily: - Common CJCE of Almalo April 27th, 1994: " the restrictions on competition are necessary to this company to assume its mission of interest général" ; - 4 stops CJCE of Oct. 23, 1997 on EDF GDF clearly show a reasoning in two times. 1) violation of the right of the Community competition; 2) justified by the general interest. Admits the economic general interest.

Today the jurisprudence of the CJCE rather largely defines the fields being able to raise of the general interest (social protection, cultural political social order etc) CJCE admitted the concept so well that the idea of an general interest of the community distinct from that of the Member States released. The Council of State evolved/moved under influence CJCE and tries today to rather reconcile the general interest with other concepts than to oppose them what involves the revival of the concept.

Deliver green and white paper

See:

White paper on the services of general interest
White papers of the European commission

The European commission produced a green book on the services of general interest in 2003, then a White paper in 2004.

It is based on the following principles:

To allow the public authorities to be close to the Citizen S,
To achieve goals of Public service within open markets and Competing S,
To ensure cohesion and the universal access,
To maintain an elevated level of quality and Safety,
To guarantee to Right consumers and User S,
To follow and evaluate the operation of the services,
To respect the diversity of the services and situations,
To increase the Transparency,
To ensure the Legal security.

Two service types of general interest

The European Community introduced two service types:

the Services of general interest (SIG)
the Services of general economic interest (SIEG), mentioned in the Treated of Amsterdam.

General interest and Principle of subsidiarity

If the concept of general interest is not clearly defined, on the other hand that of Souveraineté is, in France, in the Constitution of 1958. The sovereignty of the people is defined in the level of the nation, it is delegated to its representatives in the State-nation (in this type of State). In the European Union, one speaks about Member State.

In practice, the general interest is called upon on a local level, which raises the question of the Principe of subsidiarity, and undoubtedly also, in the context of European Construction, of the Hiérarchie of the legal standards. It should be noted that the principle of subsidiarity is generally evoked about respective competences of the Europe and the State S, and not about the Territorial collectivities.

In addition, the Référendum of local initiative introduces other modes of dialog.

See too

References

Random links: