Two recent judgments of the Court of conflict seem to challenge the jurisprudence on the distinction USIA SPIC-SPA.
In this decision of Assembly of 16 November 1956, the State Council has systematized the criteria for rebutting the presumption of administrativité burden on public services. Under this law, three criteria can rebut that presumption and, accordingly, qualify for public service SPIC: the origin of resources, operational modalities and scope of the service. If these three elements are organized in a manner comparable to that of a private company, public service will be CIPS qualified.
Although this case has allowed to draw for the first time and relatively convincing, a clear boundary between SPIC and SPA, it is clear that its application was soon faced with many obstacles.
The main difficulty is whether the three criteria of the object, the mode of operation and where the resources are cumulative. Part of the doctrine has ruled to this effect. Thus Professor Chapus in his book Administrative Law General (Tome1) writing (§ 768 of the 15 th edition) "service will be recognized as industrial and commercial if the three points of view - object, origin of resources, methods of operation - it looks like a private company. Just differing from it in one of these three points of view so that it is taken for administrative [...] Such is the rule and there is no doubt that it is observed in cases where the writing judgments do not show evident. "
However, the findings of the Government Commissioner Lawrence in Case USIA (Dalloz, 1956, p. 459) are not unambiguous. According to him, " there is no other recourse but to follow the analysis of an overall assessment. " Thus, given this formulation and the brevity of the decision of the Supreme Assembly
Therefore, it seems appropriate to consider that the identification of CIPS is based on a combination of these criteria are, moreover, very subjective.
's research cractère administrative or industrial and commercial utility also seems uncertain and challenging the qualifications of a public service activity. Thus, it may be That a same activity is considered a spa or a SPIC depending on how it is organized. The example of municipal campsite is topical. They are called SPIC unless special management arrangements mean that the town has heard them this character. This emerges from a decision of the Disputes Tribunal dated 14 January 1980, Ms. Le Crom. (Rec. Tables, p. 633) noted here that in this case, if the criterion of operation differ, the purpose of the activity is, in turn, identical, which weakens the argument that the criteria are cumulative. Thus, Stéphane. Poacher in his book Public Services Law s (PUF) seems perfectly reflect reality case law on this issue when he writes that it is an overall impression which allows to overcome the presumption of administrativité public service.
In all cases, the administrative judge has a relatively wide discretion.
We can, however, that the law is becoming increasingly clear in the sense that the judge seems to have definitively renounced the cumulative nature of the criteria.
In 1991, Thomas in a ruling of 9 February (AJDA 1990, p. 558) he recognized "that in view of its purpose and operating conditions, the water supply service, operated by governed by the common Francazal in the nature of a public industrial and commercial, although the amount charged to each holder of a floating policy is a flat rate and is less than the actual cost of service. "
The Disputes Tribunal did not consider the test of the administration. It has recently confirmed this position.
First in a ruling dated March 21, 2005 Ms. Alberti-Scott (RFDA 2006, p. 125, note Lachaume JF). In this case, the service object was the distribution of water. The service was managed by the local authority does not have a specific budget. Finally, the price charged covered only the low annual cost. Two criteria were abundant in the sense of maintaining the presumption of administrativité public service, or the Disputes Tribunal held that "the public service of water distribution is in principle, by its object, a utility industry and commercial, it goes well , although in terms of its organization and funding, the service is managed by the town board, without a supplementary budget, and if the price charged to the user only partially covers the cost of service. "Only a lack of periodic billing to allow the user to confirm the presumption of administrativité imposed on each utility.
The Tribunal thus prominently the purpose test in the identification of CIPS. Is there a hierarchy of criteria? On a presumption of industrial and commercial related the sole purpose of public service in question? If the Court appears to reserve a place at primary purpose test, it does not intend to forget the other criteria, since it specifically refers. However, the Disputes Tribunal judge here that a utility may, in its sole object, suspected to be industrial and commercial.
It remains to determine whether it is a rebuttable or irrebuttable presumption. A priori, there should be a rebuttable presumption. However, if this were the case, the other two criteria, apparently public service in question at a public administrative service should have allowed the judge to reverse that presumption. Therefore, should we conclude that it is an irrebuttable presumption? The only certainty resulting from the decision-Scott Alberti regards the predominant purpose test.
The Disputes Tribunal confirmed its earlier rulings Alberti Scott in a decision dated October 16, 2006 (No. C3511). It was a public distribution of irrigation water authority exercised by an EPCI. The Disputes Tribunal has once again seen that the activity in question had "an industrial and commercial, notwithstanding the fact that the amount of fees charged to beneficiaries represented only a small fraction of the cost of the service. In this case, there is no reference to a presumption of industrial and commercial nature related to the service object. However, it is clear that the fact that the other two criteria weigh in favor of an administrative nature of the service does not preclude it to be CIPS qualified.
Thus, it is clear from recent decisions of the Disputes Tribunal that the criterion of the object plays a role in the CIPS qualification and that is sufficient in itself to rebut the presumption of administrativité imposed on each utility. However, it is necessary to note that these cases concern the public service of water distribution. Therefore, it is permissible to consider the scope of that authority. Will it be extended to all public services, or is it a feature recognized only public service of water supply? One thing is certain: the criteria for distinguishing SPIC-SPA still left a considerable blurring and at one point that the theory developed by Didier Truchet label ("Label of public service and public service status, AJDA 1982, p. 427) might well be transposed to the distinction SPIC-SPA.
