Contenu du sommaire : Les formes nouvelles de l'administration dans la région provençale. Colloque d'Aix-en-Provence, 26 et 27 novembre 1976

Administrative changes and new forms of public administration Because public administration is no longer merely the watchdog of society but has developed into an instrument for social change, it has lost its former clear-cut structure. New forms of administration are developing outside of any preexisting framework. The expansion of such organisations is to be seen both in the diversity of their legal forms — either original in themselves or making use of existing legal structures outside of their original context — their geographical development and the variety of their areas of activity. These new forms of administration have not grown up by chance or at the wish of a few administrative departments. Their proliferation is the evidence of the extent to which an attempt is being made to remedy some of the shortcomings of the traditional administrative System. It is in fact an effort to create an administration better geared for action, doser to the public and more subject to central or local authority. One irrefutable conclusion is obvious from this whole context of change : the uniformity of administrative structures no longer corresponds with the needs of society.

The origin of current deviations Under the ancien regime, the vast amount of State intervention produced a wide diversity of legal forms for such action. The classic example is that of the public economic structures or services, sometimes under public and sometimes under private management. A further example which should be mentioned is that of the Marseille Chamber of Commerce or those private companies to which the Administration entrusts tasks in the public sector, particularly in connection with urban development. The 19th century not only saw the emergence of a multiplicity of agricultural organisations but also professional associations of property owners with the prerogatives of a public authority and evidence of the existence of a true parallel administration. During the first half of the 20th century the administrative structures of the ancien regime disappeared, giving way to new forms of administration of which the most interesting examples are, in Provence, the Offices and the first semi-public company, the Compagnie Nationale du Rhone — which are evidence of the Administration's recourse to private enterprise as a result of the expanding notion of the general interest.

New ways of using state enterprises Although modern State enterprise is based on the principle of specialisation, its purpose confers on it a specific geographic role. Moreover, a whole host of links on the organic, financial and staff levels grow up between it and other organisations. In the Bouches du Rhône, Vaucluse and the Alpes departements, State enterprises can be divided into three categories. Most of them were set up on a unilateral basis. Others however are the resuit of a combination of interests. The Port of Fos industrial complex, which is without doubt a unique experiment, consists of a group of State-run industries. Despite the success achieved, it has so far not proved possible to co-ordinate administrative action and the priority given to industrial and commercial interests has entailed a decline in the concern shown for the interests of the population as a whole.

The semi-public sector ; public administration procédure in the Provence-Alpes-Cote d'Azur region The creation of a semi-public enterprise is an administrative procedure which has been used in France since the beginning of the century ; in its broadest form it means that one or more regional public bodies own the public portion of a company's capital. But one might well ask how long this traditional definition of a semi-public enterprise as meaning joint public and private ownership of the capital is likely to last. In fact, local semi-public companies, which is the favourite System of local authorities for carrying out their development projects, are in practice a means to enable minor communities to combine their operations and, on the rare occasions when private capital is involved, it is generally minimal. The author directs his attention to a description of the semi-public companies in the Provence-Alpes-Côte d'Azur region, the way in which these were set up and the problems of controlling them. Quoting concrete examples, he describes the use of the semi-public company in the context of the municipality of Marseille and within the context of regional development.

The administration' s use of associations formed under the law of 1901 Paradoxically, the Association as defined in the 1901 Law, which was designed to limit encroachment by the State in the economic area by making it possible to exclude it from all those activities which private individuals undertake themselves, is nowadays increasingly used by this same State as a means for extending its influence. As a result, associations set up by private individuals have been increasingly associated with government activity, becoming as it were the privileged partners of public authorities and financed by public money. Moreover, such associations are no longer formed solely by private individuals, but also by public corporations and government officials. The Administration's use of the 1901 Law, which has been severely criticised, has nonetheless enabled it to achieve certain objectives more easily than would have been possible using other means. Nonetheless, it is undeniably true that the sometimes indiscriminate use of this System can cause problems. The Administration justifies its use of such associations in two ways : firstly, because administrative action can be much more effectively undertaken through such organisations ; secondly, because it makes co-operation with other public or private partners more easy. As far as the activities of such associations are concerned, these fall mainly under the heading of social and cultural development. However, the use made of the Association by public bodies raises two kinds of problem. The first of these is to decide whether such use of the Association is lawful or not. The second concerns the control of the operations of such associations once they have been set up or made use of. In both of these respects, it would appear that the time has come to examine the question of regulating the conditions governing the use of the 1901 Law by public bodies — which in some cases would render this unnecessary but which, in any event, would afford better protection of the interests of the public as a whole.

The administration's use of associations formed under the law of 1901. Supplementary report The Administration's use of associations set up under the terms of the 1901 Law constitutes a new departure in more than one respect. Not only with regard to the objectives sought, i.e. flexibility, concerted action, reduction of cost, but also with regard to the increasing number of means employed since the association is often governed by a contract, a standard charter or an agreement. When the Administration finds itself confronted by certain situations and obliged to deal with specific needs, it has a whole series of methods at its disposal, of which the association is one. The choice of the most appropriate legal form for its administrative purpose is, in fact, dictated mainly by pragmatic considerations. What therefore needs to be done is to de fine the various categories of association and apply a suitable set of regulations to each.

Private companies and organisations Semi-public companies play a particularly important role in the economy of the Provence region, where they number no less than thirty-one. Their geographic location is a guide to where regional development activity is centred, i.e. most of the major towns in the region (Marseille, Aix, Martigues, Carpentras, etc.) each have a development company. Most of these are construction companies, although some of them also act as concessionaries for public works or services, or provide the legal framework for operations undertaken by the Administration. However, frequently the setting up of semi-public companies disguises the underlying centralisation of such operations, since management responsibility is assigned to national undertakings. This is a particularly pronounced feature in cases involving the financial participation of highly centralised organisations such as the Caisse des Depots et Consignations. Private companies also play an important part in activities undertaken by the administrative authorities and one which deserves mention is the Company for Land Development and Reallocation which is vested with the powers of a public authority, exercised or supervised by two government representatives. For the most part, these companies are engaged in promoting tourism or urban development and the most typical are : the Low-Cost Housing Company in Marseille, the Development Company for the Hautes-Alpes Departement and the Marseille Fair Company. The author goes on to give a description of the most unusual features of these companies.

The growing use of missions In the Provence-Alpes-Côte d'Azur region missions have been used in a variety of ways : the regional missions and OREAM can be considered as taking the place of regional services for which the law has made no provision. Other missions are either purely consultative bodies, performing a function similar to that of administrative commissions, or an adaptation of traditional administrative services to meet particular requirements. Although these missions are often regarded with suspicion, it would seem that, in this region at least, the main dangers have been avoided. With the exception of the Regional Mission, missions have been used only as a solution to global problems and in exceptional circumstances, and the principles of the 1964 reform have been fully safeguarded.

M. Aurillac It is not so much the forms of administration which are new but rather the way in which they are used, i.e. on a regional level. When the 1972 Law came into force, this was greeted by a certain amount of suspicion on the part of the Regional Council vis-a-vis the State administrative machinery and the development of polymorphous structures entrusted with a wide range of functions, e.g. State enterprises, associations, semi-public companies. No one will deny their efficiency but their use involves grave dangers which demonstrate the limits of para-administration, e.g. hostility between these organisations and government departments and the surrender of power by elected assemblies to intermediary bodies which threaten to usurp their authority.

G. Ducher The new forms of administration which have developed in particular since the second world war are a sign of the vitality of the French public services. In the economic sector, one has witnessed the creation of various forms of State enterprise and, in the social area, the setting up of the Social Security. Then the period of economic development during the fifties and thereafter saw a second wave of important innovations, e.g. the setting up of «administrative missions» (with the aim of guiding rather than administering a public service) ; an increasing number of public or semi-public undertakings in widely difiering sectors of national or local importance ; and the creation of non-profit-making associations in the areas of scientific research and social and cultural activities. As a resuit, a highly varied public sector has grown up which, with respect to the legal status of these new organisations, has been characterised by the frequent adoption of private civil law forms in the public sector. This trend has inevitably made more complex the Audit Office's (Cour des Comptes) task of controlling public administration. However, appropriate Systems of control have gradually been developed

Report by G. Braibant A personal viewpoint on the problems which confront the administrative court judge, based on personal experience and written with the authority of someone who has published works on the subject of administrative law. The fact that the nature (both public and private) of many of these administrative bodies is not clearly defined has several drawbacks in that this makes difficult to ascertain applicable jurisdictional rules, results in a dissimilar legal status for such institutions and threatens to undermine the overall nature of the control traditionally exercised over public administration by the administrative judge. But the author is not content merely to State the facts — in this report he outlines the two main solutions which could be envisaged, i.e. either the adoption of a purely material or organic criterion or, on the other hand, the extension of the administrative judge's control to ail administrative missions irrespective of what organisation Controls them.