Учебный год 22-23 / The Public Law-Private Law Divide

“publicness” depending on the situation and the context. While many French public lawyers still consider that the notion of le service public serves a useful purpose in giving a certain unity to the criteria for distinguishing public law, it is also recognised that the balance between the various elements within this distinguishing concept differ in different contexts. In my view there are five important elements present in this balancing.

First, there is an organic or institutional element. Is the nature of the body which supplies the service a public one or a private one?

Secondly, there is a functional element. Are the functions of the supplier of the service in some way different or distinctive from those of suppliers more generally in the market, whether they are public or private bodies?

Thirdly, there is a juristic element. Are the legal rules or techniques used in relation to the relations between the supplier of the service and its ‘consumer’ typically private or typically public? At first sight, this element appears circular, since it appears to beg the very question with which we are concerned, that is, the distinctiveness of the law in question. However, this misunderstands my point, which is that there are certain types of legal technique which are typical to public law (notably, the quashing of decision-making), even if they may sometimes be found in private law (for example, review of the exercise of a contractual right by reference to a theory of the abuse of rights). By way of an aside, it could be said that it was long the approach of English law to define the limits of its administrative law by reference to a juristic technique of this type, notably, the quashing aspect of judicial review (the former certiorari).

Fourthly, there is the distinctive nature of the powers available to be exercised by the body supplying the service: does it possess special powers of a type or extent not enjoyed by other persons (whether they are institutionally public or private)? For example, can it vary the service despite what it earlier agreed? Does it possess special enforcement powers? The distinctive nature of public power has long been a prominent strand in the thread of French approaches to defining criteria for le service public15.

Fifthly, there is ownership. For the question whether a body supplying a service is institutionally public or private does not necessarily answer the question whether it is owned (whether wholly or in part) by the State or by private individuals. As regards French (and English) law, this is particularly clear as regards bodies which are institutionally private (notably, in the form of trading companies) which are owned wholly or in part by the State or other public bodies.

Sixthly, there is the role of the “general interest”, (or sometimes, “public utility”), here used as a description of the overall purpose of the activities in question and to be distinguished from those undertaken for the furthering of a private, commercial or particular interest. At times, this has been a dominant element in the French law.

15 See in particular, J. Rivero, “Existe-t-il un critère du droit administratif?”, (1953) RD publ. 279, 285-9; G. Vedel and P. Delvolvé, Droit administratif, Vol. 1, 11th ed., 1990, 36.

The Conseil d’État has struck different balances of these various elements of “publicness” appropriate for the context in deciding whether the area (or aspects of it) belong to public or to private law. So, in some contexts or for some purposes, the functional aspect dominates: it is the purpose of the service provided which makes it distinctively public, whatever the institutional or proprietary nature of its supplier. In other situations, though, it is rather the nature of the powers which a body holds which attracts the distinctive legal treatment of public law. There is no single criteria for the application of droit administratif, but a number of distinct ones, where the differing elements of “publicness” are found in different proportions and combinations. The search for a unique criterion is a false Grail, because different administrative laws have different purposes and therefore require different criteria.

How does English law’s approach compare in this respect? I have suggested earlier that to the extent to which there has been a criterion for the distinctiveness of English administrative law, it has often been seen as the availability of judicial review, itself all but tied to the presence of statutory powers whose exercise is thereby controlled and sheltering under the doctrine of ultra vires16. These have been the core ideas on which a distinctive category of administrative law was carved out of general English law in the course of the twentieth century, thereby turning against the vision of a general and unified (“ordinary”) law of England applicable to public as well as to private persons so ably advocated by Dicey. While this doctrinal framework has been challenged in recent years17, it remains important to the way in which administrative law is conceived. This way of thinking concentrates attention on the legal nature of the relations between the ‘public’ suppliers of services and their consumers, only to the extent to which that consumer wishes to challenge some decision which has been made by the supplier. In this way of thinking, the distinction between public and private law protection for the consumer mirrors the availability of judicial review in a fairly unitary way. So, either the supplier is held to be sufficiently “public” in its activity to attract judicial review or it does not, in which case the “consumer” is left to his or her remedy under the ordinary law18. However, I would like to look a little further at the way in which both English law and French law treat the provision of public services (again in a broad sense), combining administrative and consumer law techniques. Rather than looking further at these questions generally, I shall look at the particular area of the relations between railway operators and their passenger travellers. I shall start with French law and then turn to English law.

16See P Craig, Administrative Law, 4th ed., 2003, p. 4 et seq.

17Ibid., p. 20 et seq.

18This sort of line-drawing may also be seen as regards the review of decisions under the Human

Rights Act 1998: e.g. R. (Heather) v. Leonard Cheshire Foundation [2002] EWCA Civ. 366; [2002] HRLR 30 (private sector provider of nursing accommodation for local authority).

III. – THE LEGAL NATURE OF TRAVELLING BY RAIL

A. – FRENCH LAW

French rail transport is operated by the Société Nationale de Chemins de Fer Français (SNCF) and by Réseau Ferré de France (RFF) and their history reflects nicely both the degree of continuity of legal treatment of public services and the changing political attitudes to their ownership. The French rail network was started in the late 1830s (though much of it was built under the Second Empire) by private companies, but under contrats de concession of a public service by the State, giving these companies the right to build and operate public railway services19. While the network continued to grow between 1870 and 1914, the financial difficulties of the private railway companies led the State to intervene in their management. In 1937, the State nationalised the service by an agreement with the private companies for a duration of 45 years (ratified by decree) according to which all the lines were united into one network, placed under the responsibility of the State and with the hope that it would run financially in balance. SNCF came into existence in 1938 as a société anonyme d’économie mixte, of which the State owned 51 % of the capital, the rest being owned by the five former private rail companies20. Quite apart from the mixed ownership of this class of corporate body and even at an institutional level, sociétés anonymes d’économie mixte exist in the borderline between public and private law. So, while (at least in theory) they may become bankrupt and do not make “administrative contracts”, the public character of the “public business” (entreprise publique) which they carry on affects such matters as the nomination of their directors and the rules of their service21.

However, this does not complete the institutional history of SNCF; first, in 1971 a new agreement placed the responsibility for balancing the budget on the company itself, but in 1983 SNCF was re-established as an établissement public à caractère industriel et commercial22. This type of public body (normally) operates a public service which is considered to have an “industrial or commercial” as opposed to an “administrative” character, that is to say, it operates in more or less the same sort of way as do private commercial operators. Where legislation does not (as in the case of SNCF) classify a public body in this way, the Conseil d’État has developed a number of criteria by which it determines this question. Once so classified, a number of legal consequences follow, notably as to the treatment of the legal relationship between the body as supplier of the service and the latter’s recipient23. However, even though still called a société (which is resonant of private law), as an établissement public à caractère industriel et commercial SNCF became fully a public body. Finally, in 1997 the

19Loi 11 Jun. 1842. The following institutional history is taken from SNCF’s website: www.sncf.com/co/sncf/histoire.htm.

20Décret 31 Aug. 1937.

21Vedel and Delvolvé, op. cit., Vol. 2, 614.

22Loi no. 82-1153 of 30 Dec. 1982.

23Below.

250 The British Vision/approches britanniques

rail network itself was hived-off into the Réseau Ferré de France, a new

établissement public national industriel et commercial24, this separation of function between the operation of transport services and their infrastructure being required by a European directive25.

However, all through these institutional and proprietary changes there have been a number of regulatory constants.

First, the rail transport service was understood to constitute a service public in the technical sense later crystalized in terms of being “any activity of a public body whose purpose is to satisfy a need in the public interest”26. At first sight this definition suggests the dominance of an institutional criteria for the “publicness” of the service, but it has long been clear that a service can be attributed to a public body while not itself supplying it to the public and this may be seen in the important (and long-standing) use of concessions de service public, themselves used for the early French railways. One of the effects of treating this provision as a service public at this earliest period was that the State felt itself entitled to supervise the charges made for journeys, but in the longer term it has led to the application of the principles applicable to the operation of a service public, the so-called lois de Rolland: principles of equality, of the continuity and the mutability of the public service.27. This means that even where the relationship between a user of a public service and its supplier is classed as contractual and belonging to private law, the provision of the service remains subject to this set of administrative law principles, some of which make a considerable contrast with the classic assumptions of private contract law. So, the principle of equality restricts the scheme of tariffs by which customers are charged for the service and the principle of “mutability” in the public interest may allow a supplier to change the service despite any terms agreed by the parties to its use. As one text puts it,

“[n]i les agents, ni les usagers, ne peuvent se prévaloir d’un droit acquis au maintien du statut en vigeur au moment ou ils sont entrés en relations avec le service.”28

Secondly, the relationships between the suppliers of public services which are classified as “industrial or commercial” are treated as belonging en bloc to the realm of private law and the jurisdiction of the ordinary courts (the contrast being with the suppliers of “administrative” public services whose “users” are in a public law relationship with its suppliers and within the administrative jurisdiction). At first, this classification as private law of relations such as those between SNCF and those who it carried was said to rest on the existence of a contract, contractual relations being thereby contrasted with the “public law relationship” between the supplier of a public service and its “user”, but later it became clear that while typical, the presence of a contract was not necessary29.

24Loi no. 97-135 of 13 Feb. 1997.

25Dir. 91/440/EEC of 29 July 1991 on the development of the Community’s railways.

26A. de Laubadère, J.-C. Venezia and Y. Gaudemet, Traité de droit administratif, t. I, 13e ed., 1994, p. 37 et seq.

27R. Chapus, Droit administratif général, t. I, 13e ed., 1999, p. 576 et seq.

28J. Rivero and J. Waline, Droit administratif, 15e ed., 1994, p. 394.

29Chapus, op. cit., p. 565 et seq. and 799 et seq.

On the other hand, even in the private courts, the fact that the defendant is a major public corporation may at times have an effect on the application of the law, even if in a somewhat opaque way. So, for example, the Cour de cassation had decided in 1911 that carriers of persons owed them a strict obligation de résultat as to their safety, so that a person injured in the course of travelling could recover damages on the basis of a strict liability, the only defence being force majeure30. It is this last concept which has been interpreted strictly as regards SNCF. This may be illustrated from a decision of the Cour de cassation in 1953, which considered the liability of SNCF to someone injured in a train crash which had been deliberately caused by unknown striking railway employees31. The court held that the act of the strikers did not constitute force majeure so as to exclude liability in SNCF, as the latter should have foreseen that such acts would be committed and should have taken greater precautions to prevent them, even though on the facts as presented by the lower court it is by no means clear quite what precautions could have been taken. For Durry, in this sort of case the ordinary courts are in effect treating SNCF as a sort of public compensation fund (fonds de garantie) in respect of railway transport accidents32.

Thirdly, the terms of the (private law) contracts under which people travel on French railways are not the subject of free negotiation, but are set in standard terms as provided by decree33. However, their use demonstrates clearly that the classification of the relations between SNCF and its passengers as contractual does not mean that there is no room for their regulation in the public interest.

Fourthly, most of the property (such as railway lines, turntables and stations) used by SNCF count as ouvrages publics, as they constitute immovable property which is “the result of human endeavour” and is “set aside for use in the general interest”34. This categorisation within the law of travaux publics (which possesses its own special balance of factors of “publicness”35) brings with it a distinctive regime of administrative liability (but only where liability is administrative). So if a person injured by the operation of SNCF does not count as a “user” of the service public which it provides (so as to attract private law), then in an appropriate case he or she may rely on the administrative law of travaux publics36, Where this is the case, the strictness of the liability faced by SNCF will depend on the claimant’s “status” as “user”, “participant” or “third party” to the public works in question37. Here, then, SNCF’s liability will be administrative but may or may not be strict.

30Civ. 21 Nov. 1911, S 1912.1.73 note Lyon-Caen, D. 1913.1.249 note Sarrut.

31Civ. 30 Jun. 1953, D. 1953.642.

32See Durry observations to Civ. (1) 26 Jan. 1971, RTD. civ. 1971.863.

33Currently, Décret 83-817 of 13 Sept. 1983 (as amended). The standard conditions are known as the

Conditions générales du Tarif Voyageur de la SNCF.

34CE Sect. 30 Sept. 1955, Caisse rég. de séc. Soc. de Nantes, Leb. 459.

35Thus, a travail public must either (i) be done for the account (“pour le compte”) of a public body and in the general interest or (ii) while undertaken for the account of a private person, must “concretize the performance of a public service by a public body”, Chapus, Droit administratif

générale, t. II, 12e ed., 1999, p. 528.

36E.g. CE 14 Mar. 1990, Mme Declerck, Leb. 965, CJEG 1990.217, concl. Daël, note D. D. (claimant was injured riding a bicycle across a manual level-crossing).

37R. Chapus, Droit administratif général, t. II, 12e ed., 1999, p. 631 et seq.

Fifthly, however, after France’s implementation of the Unfair Terms in Consumer Contracts Directive 1993, the terms of the contracts between passengers and SNCF are subject to review on the ground of their fairness38. In this respect, French law went further than was required by the Directive in a way of importance where the terms are determined by law. For while article 1(2) of the Directive excluded from its required test of fairness “contractual terms which reflect mandatory statutory or regulatory provisions”, no such exclusion appears in the French implementing legislation. In this way, a French passenger could challenge the fairness (and therefore the binding nature) of a term in his or her contract with SNCF on the ground of unfairness, even if it reflected a provision contained in an administrative decree. On the other hand, France has not given to any public body (whether special or general) the duty to receive complaints and then if necessary go to court to obtain an order forbidding the use of any allegedly unfair contract term39, though approved consumers’ associations may apply for the same purpose40.

B. – ENGLISH LAW

While the earlier institutional history of British railways was quite similar to the French, the last twenty years have seen a dramatic divergence. So passenger railways became significant in the 1840s in England, being operated by particular trading companies, which operated their own lines and their own engines and carriages, which sometimes also enjoyed powers under private acts of parliament. By the end of the century, the railway network was a patchwork of lines and companies and this remained the case until 1921, when these companies were consolidated by statute into four new companies, though remaining in private ownership41. However, in 1948 these companies were themselves nationalised and operated under a new statutory body, the British Transport Commission42, and continued in State ownership43 until 1993 when the railways were privatised44. To do so, the legislation distinguished broadly between three functions: the ownership and responsibility for the track, signals and stations (first Railtrack plc, a “public limited company”, and then Network Rail, a “not-for-profit” company limited by guarantee), the operation of passenger and goods services (the train companies operating under franchises) and the regulatory institutions created to ensure fair competition and the protection of consumers45.

38Loi no. 95/96 of 1 Feb. 1995, art L 132-1 C. consom. implementing Dir. 93/13/EEC on unfair terms in consumer contracts.

39The Commission des clauses abusives does not have this power, but is limited to making

recommendations: art. L 132-2 et seq. C. consom.

40Art. L. 421-1 to L. 421-6 C. consom. See, e.g., Civ. (1) 5 Oct. 1999, Bull. civ. I N° 260, p. 169.

41Railways Act 1921 s 1, Sched 1.

42Transport Act 1947, Part II and s 39.

43Under the Transport Act 1962, the British Transport Commission was abolished and the British Railways Board created.

44Railways Act 1993.

45This primary regulator is now the Strategic Rail Authority: Transport Act 2000, Part IV.

However, these institutional changes have had a relatively restrained impact on the formal legal nature of the relations between those who operate passenger train services and their customers, which have been seen as a matter of contract, subject only to the requirements of the “ordinary law” in this respect46. On the other hand, the regulatory changes put in place on privatisation of the rail industry have certainly affected the terms on which people travel on the railways.

First, no business may operate a passenger rail service without a licence from the relevant statutory authority, the Office of Rail Regulation, and these licences may include provision for determining the terms on which a licence-holder may enter agreements with other persons47. As a result, no train operator in the UK may contract on terms less protective of a rail passenger than a standard set of terms, the National Rail Conditions of Carriage48. This may be seen as the administrative aspect of the control of the terms on which train operating companies may deal with their passengers.

Secondly, however, these terms may be the subject of challenge on the grounds of their lack of fairness under the English legal measure implementing the European Directive on unfair terms in consumer contracts, the Unfair Terms in Consumer Contracts Regulations 199949. In this respect, while the UK included within its implementing legislation the exclusion contained in article 1(2) of the Directive, so that any terms required by law escape the tests of fairness and transparency50, the mere imposition of a condition of a legally necessary licence of operation on the supplier of a service as to use of a particular term or set of terms would not appear to be covered: for while such a term may loosely be said to “reflect” legal provisions (the statutory provisions requiring a licence and permitting the imposition of conditions as to the terms on which a licensee may make contracts), the Directive appears to have a clearly determining legislative provision in mind51. Secondly, the Office of Rail Regulation has a role in the policing of the contract terms as a “qualifying body” within the meaning of the provisions of the 1999 Regulations. So, the Office of Rail Regulation may consider a complaint from a consumer as to the fairness of a contract term and may, if it thinks the term unfair within the meaning of the Regulations, apply to the court for an injunction to prevent its use52. The Office of Rail Regulation shares this policing role with a number of other specialised “watchdog” bodies, with the Office of Fair Trading and with the Consumers’ Association, at present the only private body authorised to do so53.

46So, where a parent bought a ticket for a child, the latter did not travel under a contract for lack of privity: O’Connor v British Transport Commission [1958] 1 WLR 346.

47Railways Act 1993 s. 6, 9(2)(b).

48(2000).

49SI 1999 No. 2083.

50Ibid., reg. 4(2).

51Dir. 93/13/EEC, art. 1(2) and recital 13 and see S Whittaker, “Unfair Contract Terms, Public Services and the Construction of a European Conception of Contract”, (2000) 116 LQR 95, 116-119.

52Unfair Terms in Consumer Contracts Regulations 1999, regs. 11 & 12, Sched. 2, para. 7.

53Ibid., Sched. 2, para. 11.

254 The British Vision/approches britanniques

CONCLUDING REMARKS

In drawing together the various threads of this discussion, I wish to be make the following observations about the line between public and private law in the context of the protection of consumers.

First, both English law recognise that while the institutional nature of the provider of a service to the public may have consequences for the law governing the institution itself, this leaves relatively open the question as the law appropriate for governing the relations between the provider and the recipient of the service: in both systems, the relations between a public sector provider and the ‘consumer’ of services may belong to private law or may (at least in part) be governed by administrative law.

Secondly, even where the relations between the provider of a service and its recipient are held to belong to private law (as in the case of travel by SNCF), in French law this does not prevent the service counting as “administrative” (a service public) so as to attract the regulation of certain administrative law principles (the Lois de Rolland). While English law has not developed an unitary notion of “public service” nor a set of administrative law principles to govern their provision in this way, this does not mean that the provision of services affecting the public interest has been left entirely to the play of the market, but their protection has been generally been particular, some services having their own statutory framework and often their own statutory “watchdog”. So, even after privatisation of the rail industry in the UK, Parliament put in place a statutory framework with the aim at protecting the public interest in the private provision of rail services and an aspect of this public interest was the protection of consumers.

Thirdly, and following on from this, both English and French law have intervened for the protection of consumers in the provision of services using a variety of techniques, some of which are managerially public (where a service is owned or operated by a public person); some of which are administratively public (where a special body is set up to supervise the provision of a service by a private sector body) and some of which are juristically public (where the law governing the relations with members of the public formally belongs to administrative law, as in the case of law governing travaux publics)54.

Fourthly, there are juridical analogies between the review of public decisionmaking by reference to a set of administrative principles (a central concern of both French and English administrative law) and the review of private decisionmaking in the setting of contract terms by reference to a special standard of contractual fairness under modern consumer law. These have in common that the court is required to assess the quality of a decision which in principle the provider of a service is entitled to make by reference to a set of criteria; they

54 In French law, a number of other examples may be found as regards the provision of services publics administratifs where the consumer of the service is held to be the “user” of a service public and within an administrative law relationship with the provider. In English law, an echo of this way of thinking can be seen as regards the relations between the National Health Service and its patients, the statutory duties of the former being incompatible with the existence of a contract even where some payment is provided: Pfizer Corpn. v Ministry of Health [1965] AC 512.

differ, though, both as regards the content of these criteria and the consequences of the review55.

55 For further discussion of this analogy in the English context see S Whittaker, “Public and Private Law-making: Subordinate Legislation, Contracts and the Status of ‘Student Rules’ ”, (2001) 21 OJLS 103; “Judicial Review in Public Law and in Contract Law: the example of ‘student rules’ ”, (2001) 21

OJLS 193.