Public Services, Service Public and Liability for Products simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0007

Abstract and Keywords

This chapter explores further the involvement of public elements in French law’s approach to liability for products. It starts by explaining how French law distinguishes between different categories of services publics, how this affects the legal position of their recipients, and how this in turn affects the substantive law governing liability in respect of the provision of the public service and its impact on liability for products. The chapter then examines three major examples of public services which have cut across the public and private law divide in French law: the supply of public utilities, transport, and health care.

Keywords:   French law, product liability, liability law, services publics, public services, public utilities, transport, health care

In this chapter, I shall explore further the involvement of public elements in French law’s approach to liability for products. My starting point is the idea of the provision of a public service, a notion which I have chosen for its openness and general lack of technicality in the English context and its elusiveness and technical importance in the French. As will be seen, French law’s approach to the regulation of the provision of public services in a very general sense gives rise to a kaleidoscope of liabilities: some general and some special; some private and some public; some the work of the courts and some of national legislation or international convention. Furthermore, while in some of these situations the involvement of a product (or even a ‘thing’) is not formally the basis of liability, in others it is of central importance.

What then may be the significance of the notion of public service’? In a first sense, calling a service ‘public’ may refer to its free availability to the public generally or to any member of the public, rather than being restricted to certain persons or by way of special arrangement. So, a passenger bus service or an amusement park may be ‘public’ in this sense, whether it is owned or operated by a public or a private body: the service is public in terms of its accessibility.

Secondly, a ‘public service’ may refer to its ownership or operation by a public body, whatever its accessibility or its subject matter. So while many public services in this sense are generally available, some may not be, for example, a particular educational service may be restricted to children with special needs. Here, the service is public in a proprietary or managerial sense. Where such a service is provided directly by a public body (in a technical public law sense, such as a French établissement public or an English local authority), rather than through a private law intermediary, the service may also be seen to be public in an institutional sense. On the other hand, some services may be operated by a body whose institutional nature is private, but which is owned (wholly or in part) by a public body, as in the case of an English company incorporated under the Companies Act a majority of whose shares are owned by the Crown.

Thirdly, whether or not a service is provided by a public body, directly or indirectly, a service may be public in the sense that at least certain aspects of its provision are considered sufficiently important to be regulated in the public interest. This is partly a matter of degree. In one sense, in western legal systems all services offered by one person to another are ‘public’ in the sense that they are subject to a minimum of (p.133) regulation by the law, notably the general law of contract and the criminal law (for example, concerning fraud). Moreover, like other laws, French law goes very much further, regulating the effects of contracts in an elaborate way, even while still treating this as private law.¹ In this regulation, the legislature or courts may at times seek to give effect to the typical expectations of the parties, but even more they give effect to their view of the proper balance of the rights and obligations of the parties taking account of the wider interests of society.

However, in French law the public interest has played a more overt role, for its administrative law has identified a distinct category of public services’ (services publics²), a notion whose significance dominated much of the theory of administrative law for the first half of the twentieth century. Classically un service public is defined as ‘any activity of a public body whose purpose is to satisfy a need in the general interest’.³ This combines two elements: the first is institutional (the service must count as an activity of a public body); the second is ‘functional’ (the service must satisfy a need in the general interest). In the course of the twentieth century, the necessary connection between a public body and the activity to qualify as a service public became less and less direct, so that, notably, a public body did not itself need to provide the service, which could be ‘delegated’ to a private body.⁴ As a result, in the modern law the public nature of a service public rests ultimately on its function, that is, whether the service is aimed at satisfying a need in the general interest.⁵

While the main use of the notion of service public has been as a criterion to distinguish between activities within the jurisdiction of the Conseil d’Etat and those within the jurisdiction of the ordinary courts,⁶ it has also attracted a set of legal principles regulating these services partly in the interest of their citizen recipients and partly in the interest of society more generally, known as the lois de Rolland.⁷ On the other hand, the institutional characteristics of the bodies which provide a service public follow their legal form, whether public (such as an établissement public) or private (such as a société anonyme).⁸ And the mere fact that a service is ‘public’ for this purpose does not mean that the relationship between its provider and its ‘recipient’ belongs to public law: it may do so, but it may instead belong to private law. The rules governing (p.134) the provision of services publics may therefore possess aspects of public law and private law.

In this chapter, I shall look at the way in which French law treats the imposition of liability incurred in the provision of public services in all the different senses which I have identified, for only in this way can a sense be gained of the variety of regulatory treatments to which they are subject. I shall start by explaining how French law distinguishes between different categories of services publics, how this affects the legal position of their recipients and how this in turn affects the substantive law governing liability in respect of the provision of the public service and its impact on liability for products. Then I shall examine three major examples of public services which have cut across the public and private law divide in French law: the supply of public utilities, transport and health care.