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LAW INSTITUTE OF LITHUANIA
CONFERENCE
12th of September 2014
« PUBLIC INTEREST VERSUS LEGITIMATE EXPECTATIONS »
The concept of Public Interest in French public law
By Dr Bernard Even
President of a chamber at the Administrative Court of Appeal of Nancy - France
Vice-President of the Association of European Administrative Judges (AEAJ)
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The Council of State, which is the supreme administrative court in France, chose this theme of
general interest for its annual report, published in 1999, to celebrate the bicentennial
anniversary of this institution created in 1799.
My presentation is based directly on this important study of the Council of State, which has
analyzed the evolution of the concept of general interest and its place in French law, and
revealed the persistence of its modernity.
The general interest is, for over two hundred years, the heart of the French political and legal
thought. This notion, political and legal, is considered to be the ultimate goal of public action.
It therefore plays a central role in the construction of French public law, by the Council of state
and the Constitutional Court.
This concept is now being questioned. There are indeed different meanings of this concept of
public interest. And some people are now wondering if this concept is still valid? Is it likely to
disappear?
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I The general interest is the heart of the French political and legal thought
A The general interest is first a key political concept
Before becoming a fundamental legal concept, the idea of public interest emerged as a political
concept.
The roots of this notion are very old. It was designated under different names in history:
common good, public good, public necessity ... It is embodied through great historical figures:
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several monarchs and ministers of the old monarchy during the XVII century: Richelieu, Louis
XIV, Colbert ...
It is during the eighteenth century that the idea of "public interest" has gradually supplanted the
Christian and moral medieval notion of "common good" created by Thomas of Aquin. The
word "public interest or general interest" symbolize the abandonment of the Divine right of
kings and expresses a secularization of this concept.
The French conception of the public interest, which appeared in the eighteenth century, is a
direct creation of the Enlightenment philosophy and more specifically the ideas expressed by
Jean-Jacques Rousseau in his famous book "The Social Contract" published in 1762. This
French political design is at the basis of the ideas of nation and democracy.
The public interest is not the result of the sum of individual interests. The French design is
utilitarianist. The temporary and random combination of individual interests is unable to
establish a sustainable society. The general interest according to French view is not a simple
choice between special interests. It exceeds, transcends individual interests of each individual.
And the public interest produces a "social cement".
This design is part of a philosophical tradition that goes back to antiquity, Aristotle, marked by
the primacy of politics. As part of this design, people are considered to have the ability to
transcend their individual interests, to exercise the supreme freedom to form a political society
together. The rational citizen ignores its own interests in the political debate. Max Weber
explains that when in a society the legitimacy of power is based on reason, citizens agree to
submit to political decisions, because they consider those decisions consistent with the interests
of each and every one.
This philosophical view has had a great influence during the French Revolution, and then in
French legal history. The public interest is seen in France as "the emanation of the will of the
community of citizens," as it is written in the Jean-Jacques Rousseau's "Social Contract". In the
article 6 of the Bill of Rights of Man and of the Citizen published in August 26, 1789, which
acquired a constitutional status and is still applicable, the law is defined as "the expression of
the general will." The general will is expressed through the sovereign Nation gathered in
Parliament.
The search for the general interest and its implementation is the ultimate purpose of the
government of a nation. The satisfaction of the public interest is the ultimate goal of the public
action. It is a power issue, the subject of the political debates. The general will is expressing the
general interest. The general interest determines the purpose of public action and bases its
legitimacy. The concept of public interest is thus an instrument to legitimize public action. The
state is responsible for implementing this general interest that apply to all individuals, beyond
their particular interests.
This French tradition stemming from the revolutionary period was marked by distrust, suspicion
toward all special interest groups. The guilds and labor unions are prohibited by law from 1791
and it was not until 1884 and 1901 that the freedom of association and of association was
recognized in France. If the action of lobbies exist in France, they have no official status.
This French design can also be explained through its difference with the Anglo-Saxon liberal
economic utilitarian design, which appeared in the famous book of the philosopher and
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economist Adam Smith, "An Inquiry into the Nature and Causes of the Wealth of Nations"
published in 1776. It is important to note that the French design is essentially political, while
the Anglo-Saxon conception is from economic essence.
As part of the Anglo-Saxon conception, the general interest and special interests are not seen
as opposite. The general interest is composed of all special interests. The common interest,
which is the sum of individual interests, appears spontaneously through research of their
usefulness by economic agents. Adam Smith believes that the key driver of any individual
action is the willingness (selfish) to get the best profit. If each individual is looking for his own
benefit, he does so without his knowledge for the good of the whole society. As Men are
dependent on each other, each man is therefore useful to the others. The public interest is
appearing unconsciously through the research of each particular interest.
This design has played an important role in the Anglo-Saxon countries, especially the United
States. She had very specific political consequences. Thus the United States, lobbies occupy a
central place in public life. It is considered to be normal for major interest to make their voice
heard in the public debate, to attempt to influence the vote of parliament. This is why the various
lobbies are registered with both houses of Congress and can act in full view of everyone.
Interest groups supporting contrary positions act with MP's. The limits of this approach lies in
the differences in these interests. For example, the power of the oil lobby is obviously not the
same as the influence of NGO's acting in favor of environment.
This Anglo-Saxon approach reflects a distrust towards the State, the public power. The public
space tends to reduce in search of coexistence between different interests, often conflicting, of
the various components of society.
The debate between these two traditions, Anglo-Saxon and French, appeared in the late
eighteenth century, has hardly lost its timeliness and relevance. It illustrates the divide between
two visions of democracy.
B The general interest is the keystone of French public law
This notion of public interest is not defined abstractly by French law. I am not able to give you
a definition based on criteria. It is through its role that we can understand its meaning. This
concept is at the base of the French public law, constitutional and administrative. It appears in
the jurisprudence of the Constitutional Court and the Supreme Administrative Court, the
Council of State.
What is the technique of creation of the public interest?
According to the traditional view, written in the Declaration of 1789, it is the law, that is to say
the Parliament, expression of the general will, which has to define the public interest. This is
the first method of production of this concept, the political debate.
Especially since the introduction of the current Constitution, adopted in 1958, the action of the
executive power and the public administrations of the state and other public authorities have to
be mentioned. Administrative acts issued by the Executive power and other public bodies are
with the law the second mode of normative action. They help to define the public interest,
subsidiarily.
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Legislative and administrative processes are different. The law is the product of a democratic
political debate, while the creation of the administrative act is more technical. But in both cases
there are choices, political expediency or exercise by the government of an assessment. Thus
the public interest is a vague concept, contingent, highly political, evolving constantly in
various directions. As an illustration, the protection of the environment, the pursuit of
sustainable development, the concern of the rights of future generations are now seen as targets
of general interest.
The judicial concept of general interest has three key roles in French public law:
1) The general interest is a legal concept that legitimate public intervention and also those of
constitutional and administrative law judges
Administrative law is characterized by the idea that the administration fulfills a special task
corresponding to the satisfaction of the public interest. This is the basis and purpose of
administrative action, as well as its limit.
This notion of general interest is the basis of the existence of administrative law. This is because
the administrative action is exercised for reasons of general interest that there is raising a special
law and a special judge, the administrative law and the administrative judges. The public action
has special tools, privileges, "the public powers." The reference to the goals of general interest
gives legitimacy to the use by the state and other public bodies of derogatory ways from the
common law in order to uphold the public interest over private interests.
The major concepts and legal regimes of French administrative law, the notion of public
services and public administration, the civil servants, the public properties, the public works,
and the tools of administrative action, administrative acts and administrative contracts, its
special responsability have therefore been defined by the Council of State by reference to the
notion of general interest.
The public interest is not the only criterion, but this is the first concept, the fundamental criterion
which irrigates all others. It is not always directly expressed, but it lies always in the
background, diffusely.
2) The concept of general interest is the condition of the legality of the government
intervention. This concept is the basis of the powers given to Parliament and to the executive
power and other public authorities and defines their limits.
Parliament's power is limited by the existence of a constitutional review exercised by the
Constitutional Council.
Although the French constitutions (unlike to the Spanish and Portuguese Constitutions for
example) does not explicitly refer to the concept of general interest (only the general will), the
Constitutional Council decided in 1979 to incorporate this notion among its instruments of
control (DC No. 79-107 of 12 July 1979).
It is a condition of the constitutionality of the law. The Constitutional Council can
(theoretically) censure the law when it is not based on reasons of general interest. But he is
reluctant to do so at this level to avoid criticism of "government by judges". After having
identified the existence of a condition of general interest, the Constitutional court does not
recognize itself competent to challenge this general interest, because it is coming from a
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political opportunity. But he confronts the limits on rights and freedoms. A cancellation occurs
when this restriction is inadequate or excessive. It is a proportionality control.
Administrative power is limited meanwhile by the existence of a control of legality managed
by the administrative judges.
The administrative judges are dealing with this control at several levels of the administrative
act. It controls the competence of the author, the process of elaboration, the shape, including
the motivation, and its content that is to say, the reasons of law and fact. The administrative
judge is the guardian of the public interest.
The powers are given to administrative authorities for reasons of general interest. When these
public authorities are overstepping this skill, they are exposed to the cancellation of their acts
by administrative courts.
Administrative authorities are specialized. This specialization is defined by law and secondarily
by regulatory administrative acts issued for most of the executive power. The distribution of
this power among the various administrative authorities is justified on grounds of public
interest. When an authority encroaches on the jurisdiction of another, it is exposed to censorship
of its decision by the administrative judge.
This applies even when the grounds for intervention are not consistent with the objective of
general interest which bases its jurisdiction. The administrative acts are made for a purpose of
public interest. When the purpose of general interest required by law is not followed the act is
cancelled.
3°) The public interest also limits exercise of fundamental rights, including the freedoms and
the principle of equality.
The legislature and administrative authorities may restrict the exercise of fundamental rights,
most of them having a constitutional status, if this answers a pattern of general interest. This
avoids the limitations which would be incompatible with the rule of law.
The Constitutional Council requires the legislature to express and specifically state that aim of
public interest in the text of the law or in the preparatory work. Thus it also limits the power of
public authorities to apply and interpret the law. Failure to follow this rule of utterance leads to
censorship of the law.
This requirement of stating the objectives of general interest provides to the administrative
judges, in most cases, a legislative reference which allows to control more deeply and easily
the legality of administrative acts, through the concept known as "the misuse of power".
The public interest is the basis of the definition of "public order". This notion allows the
restrictions on fundamental rights and freedoms, including the right to property and economic
freedom, and the limits to the principle of equality.
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II The French conception of the public interest is contested, but still relevant
A A contested notion: the crisis of the concept of general interest
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The French view of the public interest is now in question. It is the subject of much protest, so
that we could even speak of a crisis of this notion.
The French conception of the public interest has been the subject of a double criticism since the
nineteenth century, both marxist "the general interest is that of the ruling class," and liberal "the
public interest is against the freedom of the individual."
According to the Marxist critique, the public interest is just the interest of social classes who
are ruling the power in the state.
Contemporary liberal thought is also very critic on the representation of the public interest
understood as the interests of society, distinct from the interests of its members. It focuses on
the political risks of such project on the civil society and individual freedoms.
These criticisms have led to a decline in belief in the public interest, at a time when the progress
of democracy are going to an increase of individualistic behavior, the withdrawal of individuals
on their own interests and a deep disaffection for the defense of collective ideals.
This has challenged the legitimacy of the state and its ability to uphold the public interest. The
state, which represents the value of general interest, is struggling to adapt its missions and
modes of operation with the transformation of society.
The idea of a state conceived as an eminent principle, expressing the unity of the collective will,
guardian of the supremacy of general interest on the diversity of interests of civil society, is not
in harmony with the trends of contemporary democracies, which tends to promote the
multiplicity of identities and plurality of interests, at the expense of the primacy of common
values.
Modern politics gives more importance to the interests of the individual and those of society.
The state is no longer able to attract the support of the citizens. He was denied the monopoly
formulation of the public interest. And belief in the public interest is going down more and
more.
This weakening of the legitimacy of the state is particularly noticeable in the sphere of the
economy. We have seen that it is from the economic analysis that theories have been developed
about the benefit for the community of individual utilities. The general interest is the product
of the meeting between special interests. Contemporary liberalism gives a new formulation to
the utilitarian vision developed in the eighteenth century. The public interest may result from
the freedom left everyone to mobilize its efforts and give free rein to his creative abilities. By
giving a central place to open markets and the principle of free competition, the European
construction decided to adopt this liberal approach. The market, far from being antagonistic to
the public interest, is perceived as an active tool, particularly to obtain the most competitive
price for a better quality of service.
B The french vision of the public interest remains relevant
The French paradigm that emphasizes a general interest beyond the sum of individual interests,
is it convicted?
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Daily experience shows that special interests are often in conflict. The harmony between
conflicting interests is a utopia. Theorists of liberal thought not also consider that the market
has all the answers and is the only way to the public interest. A coalition of singular interests,
which usually favors the imperatives of short term, does not, spontaneously, generate at the
same time the economic optimum and the social optimum. The simple combination of private
interests is often the expression of the most powerful interests. The concern for freedom
outweighing that of equality. Mediation of the state can not realize the synthesis between the
interests expressed in civil society. Only a well designed public interest is likely to bring
consistency to the management of public affairs and maintain, and if possible, reinforce social
bonds.
A debate that is moving towards a more pragmatic approach
We must abandon the old confrontation between the philosophies that promote civil society and
individual rights and those which give a central role to the common goals and the state. The
debate seems to be moving towards a more pragmatic discussion on the scope of the mission of
the state, on ways to make it more effective and more legitimate, and the balance to be sought
between market efficiency and requirements of general interest.
This is the approach that is found at the level of the European Union. The Treaty of Rome
imposes strict application of competition rules to all economic actors, including services of
general interest.
Regardless of the requirements of Community law, the French administrative considered that
there is no incompatibility in principle between the performance of a public service and respect
of competition law. Rather than opposing general interest and market liberalization, it is better
to seek, in the context of free competition, taking into account the objectives of general interest,
the expression of the values of solidarity, social cohesion, regional balance or environmental
protection. There is thus a convergence between the national approach and that of the European
Union, leading to a better balance between the market principle and objective of general
interest.
Towards a reformulation of the concept of general interest
The concept of general interest should be reformulated or even rejuvenated. This is the
condition that this concept can both better adapt to contemporary social and economic issues,
to better meet the new needs.
To maintain an evolutionary approach of the concept of general interest
The vitality of this concept could not be linked to a rigid and predetermined definition. Plasticity
is inherent to the idea of general interest. It can evolve according to social needs and emerging
issues facing society. New demands are expressed today, reflecting the desire of citizens to get
more personal safety, more security against the risks of exclusion, greater equality in access to
education and culture, better protection of the environmental balance for our generation and the
generations to come. These new needs must be taken into account. The public interest continues
to evolve. The evolving nature of this concept of public interest is not, however, incompatible
with the permanence of classical principles of law, in order to ensure compliance with
consensus values inherent in the pursuit of a public interest.
For a democratic formulation of general interest purposes
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At any time, it should be possible to define the scope of the concept and to validate, through
democratic procedures, purposes identified as being of general interest. The general will and
the State are in charge of defining the public interest. Only the Parliament could be able to enact
impersonal and general standards representing the common wish. And the government is
merely in charge to enforce and to take into account particular circumstances.
This pattern that favors the decision of the Parliament, implemented by the administration, is
now contested with the growing influence of EU regulation, enacted by institutions whose
democratic legitimacy is imperfect. The public interest is assessed today in a space that is no
longer limited, as in the past, by the Nation. And the State is regulating the society and choosing
between various interests.
The consequence is a proliferation of diverse procedures: decentralization, consultation,
contractual arrangements or regulation by independent authorities... With all these techniques
make it difficult to formulate a general interest beyond individual interests. It is not enough to
develop compromise or seek conciliation between various private and public interests to release
more surely a general interest. The general interest is rarely consensual. The confrontation of
interests sometimes blocks the public decision.
The ultimate arbitrage belongs to the Parliament, the authority democratically invested to
express the general interest. The legitimacy of the choices made will be enhanced by greater
involvement of citizens in the development and implementation of decisions.
The judge's role in monitoring the implementation of the purposes of general interest
The judge's role is crucial in controlling the modalities of implementation by the administration
of the purposes of general interest. The aims of general interest is not always guaranteed by the
quality of procedures that contribute to their development or implementation. It is for the judge
to ensure that the public power at all levels is in line with the general interest. The functioning
of the administration too often reveals power relations between different categorical or
administrative interests. The state may be tempted to take refuge in an arbitration function or a
simple search for the lowest common denominator between the special interests. It is up to the
judge to defend a conception of the public interest that goes beyond mere synthesis of special
interests or arbitration between public, geographical or sectoral interests. It must check the
compliance of administrative action for the purposes of general interest. The administrative
courts have the right - and duty - to specify the terms and limitations of this concept.
Judicial review has become more complex and subtle. He is able to confront the various
interests though the "balance technique". It has to ensure a balance between the rights of
individuals and the requirements of the general interest. It does not have the same legitimacy
as the Parliament. So it must explain, when necessary, especially which is implicit in the laws.
The general interest belongs to every citizen
The debate over the public interest is not just a matter for Government. It concerns every citizen.
The search of public interest involves the ability for everyone to take a distance with its own
interests. Primarily concerned with their own interests, individuals often find it difficult to
recognize and accept common goals. The crisis of the public interest is not unrelated to the
crisis of the society where many are struggling to find values.
The society does not facilitate the development of a public space where general values can
prevail over the individual. There is no institutional remedy. Democracy is based on the
citizens. It is not by force that rights holders attached to their backup could exercise this virtue
in which the philosophers of the eighteenth century saw the idea of the Republic. It is as
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autonomous beings ready to participate in the definition and implementation of general
purposes.
Through an "ethic of responsibility", free citizens are able to reclaim the values of solidarity
and the well to live together. Thus the public interest, an idea created two hundred years ago,
challenged today, could find strength and legitimacy to manage the needs of the society in the
future.