Introduction
The administrative power of private bodies is a legal notion referring to the capacity of a few French institutions ruled by private law to perform special administrative police functions. This legal concept is the core of my PhD research and it results from a historical analysis. Indeed, in France, administrative activities have been undertaken by private bodies for a very long time, but this has been overshadowed. This paradox can be explained by the way the French State and its administration were built and by the originality of the French economic model, in which liberalism and interventionism coexist. The activities that cannot be delegated have never been clearly delimited. But according to the judicial case law, some missions strictly and naturally fall within the competence of the State. Thus, scholars traditionally consider that those sovereign matters of the State are police, justice, and taxation. This historical analysis prompted me to propose a legal concept of administrative power of private bodies to rethink the role of private bodies within administrative functions.
Research Method
My PhD focused on case law and academic debates to determine the legal difficulties and inconsistencies amongst legal situations where private bodies undertake administrative activities. My way of building a legal concept of administrative power of private bodies was to study the abnormalities and malfunctioning of some private bodies in the French administrative law landscape. This method revealed an original and autonomous legal notion of the administrative power of professional bodies, sports federations, market undertakings, private regulators for advertising, copyright collective management bodies and land development and rural settlement companies. These examples show that private bodies which are autonomous from the administration can organise some economic sectors. The legal concept of administrative power was thus constructed empirically, with functional homogeneous examples and a wide variety of economic fields.
The selected cases to build the legal notion calls for caution regarding large companies, especially those in the digital industry. They could be qualified as private bodies holding administrative power. However, they are too specific and therefore seemed unsuitable for building a convincing argument. Consequently, while several large companies could be included in the concept, they would have been a less obvious starting point for basing it.
Definition and Functioning of the Administrative Power of Private Bodies
The legal concept of administrative power of private bodies sheds the light on both long-standing and new institutions entrusted with police missions. In private law, legal power has long been embodied by the father, the creditor, the employer, the manager, and the guardian, deriving their authority from legal institutions, before being used as the basis of a theory on the organisation of legal persons (the company, the trade union, etc.). In contract law, unilateral acts are seen as an irritating concept concerning the principle of freedom of choice. Thus, power is thought of as an authority relationship, determined by a factual situation, and the contract must bring exchanges back to a balanced relationship. In administrative law, the normative powers of private bodies were also denied, either by organically attaching them to the administration as administrative bodies or by subjecting them to administrative law and the control of its judge. Later, their recognition was possible when administrative law was no longer based on sovereignty and power but when its purpose was to supply public services.
This can explain why the attribution of power to private bodies to take regulatory measures in administrative police is granted on a flexible basis. It is delegated or set up by a system of compulsory membership and tolerated by the administration. Therefore, the scope of application of their power is widened. In positive law, it is not exercised to provide public services, but the private bodies ensure regulatory and disciplinary functions. These private bodies use special police procedures causing an infringement of economic operators’ fundamental rights or of third parties. That is why the administrative power is different from the mere private regulatory power of network owners: it is essential for the good functioning of an economic sector and reflects the pursuit and enhancement of general interests within it.
In addition, these independent entities are hybrid: they are governed by private rules and financed by private funds, but their administrative missions create conflicts of interest between their corporate purpose and their policing duties. Indeed, the administrative nature of the power of these private persons comes from the fact that the purposes imposed upon them are contrary to their legal nature, as they do not fit in well with their status. Thus, the study highlights the interactions between the private law status and the exercise of administrative power by revealing the shortcomings or the absence of administrative control over them as well as the lack of awareness of their anti-competitive effects due to their advantageous position in economic markets.
This administrative power gives its holders the role of ensuring the harmonious functioning of the markets and the maintenance of special public orders not only in the name of collective and sectoral interests but also to ensure the primacy of general interest. It can therefore be concluded that these private bodies’ missions are public order special powers, which are, in French law, regulatory and preventive powers in special fields.
This definition of the administrative power of private bodies shows that the administrative control of these private bodies and the access to information is insufficient regarding their internal functioning. The grounds for the decisions and the means of redress against decisions taken by these private bodies in the application of the national legislation are also inadequate regarding the fundamental rights that may be infringed.
Appropriate Remedies to Administrative Power of Private Bodies
My research also focuses on the legal regime of the administrative power of private bodies which is mostly made of private law rules. The administrative nature of the power was invited to use an internal comparative law method in order to think about the evolution of positive law and to question the role of judicial mechanisms of administrative law as well as those of economic law, that is to say, the general theory of obligations and competition law.
The study proposes a mixed legal regime, which differs from the positive law, as it includes both public and private law components. To limit and to set the framing of the notion, I have evaluated the values of administrative law and compared them to those of economic law, built from the general theory of obligations and competition law. I selected some principles of administrative law: numerous rules of non-adversarial administrative procedure as well as judicial review and full jurisdiction, useful for the development of legal principles regulating the use of power, which overcomes the divide between administrative law and private law in French law. On the one hand, strong guiding principles – such as equal treatment, non-discrimination, and public service principles – could be imposed on acts of administrative authority. Some transparency and deontology rules should be transplanted from administrative law to make the unregulated behaviour of these private bodies evolve. On the other hand, secondary principles – such as neutrality – could not be transplanted because they would strongly entail sharp infringements of the fundamental rights of individuals when preventing any attempt to special public order.
In addition, the unlawful use of administrative power by private bodies should also be challenged by appropriate remedies. The jurisdictional control of the administrative power of private bodies is also made up of scattered rules. In addition to ultra vires, the individual decisions of private bodies holding administrative power could be integrated into a contractual model of private law ruled by the ordinary judge. Nevertheless, administrative litigation rules could enrich disputes concerning individual decisions, both in terms of control methods and admissibility. Indeed, in France, administrative courts intensify judicial control if fundamental freedoms have been infringed or based on an abuse of power and they have a broader appreciation of the admissibility of appeals against administrative acts. In tort law, administrative law rules facilitate the final compensation of victims in the case of harm and determine easier conditions governing admissibility.
Finally, this administrative power confers exclusive rights to private bodies. As it seems to be self-reinforcing, these rights induce many legal risks. The private bodies take advantage of their monopoly or exclusive rights to capture administrative functions. Thus, the framing of the administrative power of private bodies cannot be satisfied only with administrative law but has to be also with competition law. When such a power is identified in a private body, the legislator or the regulatory authority should limit the diversification of its activities as an economic operator. Nevertheless, anti-competitive effects should also be accepted on the basis of the cost-benefit theory and the transposition of the theory of exceptional circumstances. Therefore, the creation of a legal concept of administrative power of private bodies makes one more attentive to their potential anti-competitive effects but also suggests that these effects should not be appreciated exclusively through economic reasoning, notably by allowing exemptions based on reasons of general interest.
Conclusion
Far from erasing the specificity of one branch of law in relation to the other, the proposed legal concept of the administrative powers of private bodies invites us to rethink the conditions which built this field of knowledge.
Posted by Dr Marie Cirotteau, Lecturer in Administrative Law and EU Law at Paris-Panthéon Assas University and Versailles-Saint-Quentin University.
Suggested citation: M. Cirotteau, ‘Administrative Power of Private Bodies’ REALaw.blog available at https://realaw.blog/?p=2504
