French law – Relations between public persons

Title 1 – Public Persons

Chapter 1 – Legal persons under public law

Chapter 2 – Relations between public entities

Section 1 – Centralization and decentralization

Centralization: the action of attaching to a central government all the forces of a State.

Advantages: ensures cohesion, equality of individuals, eliminates particularisms

Disadvantages: rigid, difficult or impossible to adapt

Decentralization: the action of giving local authorities their own powers, distinct from those of the state, and having their authorities elected by the population.

Advantages: greater citizen participation, local interests protected, liberal

Disadvantages: less cohesion of the state reinforces local interests against the interest of the country

Section 2 – Administrative controls

Hierarchical control

Hierarchy: Organization based on an order of priority between the elements of a whole or on relations of subordination among the members of a group.

It is a control over both persons and acts: the hierarchical superior is able to approve, cancel or modify an act.

Trusteeship control

Trusteeship control refers to“all the powers of control granted by law to a superior authority over the agents of decentralized communities and their acts in order to protect the general interest” according to the definition of Maspétiol and Laroque.

Thus, the control of trusteeship concerns the organs or acts of another legal person only when a text establishes it and implies the possibility of recourse for excess of power.

However, the law of March 2, 1982, reduced the trusteeship over the acts of local authorities.

In practice, it is mainly the financial means and technical controls that hinder local governments.

Section 3 – Evolution of centralization and decentralization in France

France, depending on the regimes it has known, has turned successively to decentralization or centralization:

Revolution: decentralization and standardization

Regime of the year VIII: centralization

July Monarchy, ^Second Republic, ^Second Empire: decentralization

Third Republic: decentralization – an administrative charter was set up for the departments (law of August 10, 1871) and the communes (law of April 5, 1884), while mayors were elected and their powers increased, notably in 1926.

Vichy regime: centralization

^Fourth Republic: decentralization – written into the constitution.

^Fifth Republic: decentralization

reduction of supervision (ordinance of 5 January 1959)

measures on municipal management and communal liberties (law of 31 December 1970)
and replacement of tutelage by lighter control, the president of the general council becomes the executive of the department instead of the prefect, the region becomes a fully fledged territorial authority with the president of the general council as its executive body (law of 2 March 1982)
measures on decentralization (constitutional law of 28 March 2003 and organic law of 16 December 2010)

However, in practice, the State has increased its hold in many areas, particularly in finance and the police. Deconcentration measures have been adopted, rather than decentralization. Similarly, the French tradition of centralization is still strong.

Section 4 – The limits of administration

The limits of French territorial frameworks

1. Criticism of territorial frameworks

Local governments have legal personality:

the department: created during the Revolution

the commune: corresponds to the parishes of the Ancien Régime

The administrative districts do not have legal personality:

The arrondissement: created by Napoleon, organizes the executive: the sous-préfet.

the canton: it is hardly more useful than for the electoral districts to elect the general councilors

The special administrative districts do not have legal personality:

These are special districts adapted to render a certain type of service (e.g. military, water, etc.)

The most common criticisms are the following:

The influence of Paris over the provincial regions
the uselessness of certain districts

poor division of the departments.
poor balance of communes (250 communes have more than 20,000 inhabitants, 24,000 communes have fewer than 500 inhabitants)

2. Attempts at a solution

Attempts to solve these problems have been numerous during the^Fifth Republic:

Between 1955 and 1969, the creation of regional action districts with economic attributions.
failure of the April 1969 referendum on the region
the region became a public institution (law of 5 July 1972)

Law of 2 March 1982:
The region becomes a territorial authority. It is the regional council elected by direct universal suffrage that administers it, and its president is the executive body of the region.
The same law provides that the executive body of the department is now the president of the general council.
Constitutional law of 28 March 2003, Raffarin reform:
the addition of the words“its organization is decentralized” to Article 1 of the Constitution. This law guarantees a regulatory power and a financial autonomy for the local authorities.
Organic laws of¹ August 2003
Law relating to experimentation by territorial authorities (territorial authorities can derogate from the law within the framework of an experimentation)
Law on local referendum (the deliberative assembly can submit a local referendum for what concerns the community)

It is also to face the criticism that a new map of regions was adopted in 2014. Indeed the National Assembly adopted on November 25, 2014, in second reading, the new map to 13 regions.

The limits of the administrative apparatus

1. Criticism of the administrative apparatus

Criticisms of the administrative apparatus include:

The increase in the number of civil servants makes them simple management agents.

The administration exceeds its competences by playing a role in the industrial and commercial field
The reinforcement of complex rules obliges the administration to create organizations that are not affected by these rules (which has been denounced by the Court of Auditors).
The decrease in the influence of the Parliament and the development of the administration tends to reinforce the administrative power too much.

The administration is becoming compartmentalized, with each body becoming independent of the other administrative bodies.
The administration is more at the service of itself than of the citizens.
The administration still suffers from the misdeeds of corruption.

2. Attempts at a solution

Mission administrations have been created, supposed to be more flexible and less compartmentalized.
More and more administrations are content to carry out studies (e.g. INSEE)
Laws have been put in place since the 1990s to fight corruption

The relationship between the administration and the public

Faced with a secretive administration, in a position of power to the detriment of the citizen, many improvements have been made to protect the interests of the citizen:

Independent bodies have been created:

Creation of the Ombudsman (law of January 3, 1973), now called the Defender of Rights.

Commission informatique et libertés (law of January 6, 1978, relating to data processing, files and freedoms)
Commission for access to administrative documents (CE, 19 May 1983, Bertin) to ensure the accessibility of administrative documents, which is now the rule (law of 17 July 1978). Whereas the secrecy of documents used to be the rule, this law of 1978 provides that secrecy is the exception, and the communicability of administrative documents the rule.

Moreover, since the law of July 11, 1979, administrative acts must be motivated (except for exceptions).

The law of April 12, 2000, on the rights of citizens in their relations with the administration reinforces the right to information and specifies the relations with civil servants.

The law of February 27, 2002, reforms the participation of inhabitants in local life within the framework of local democracy.

The law of July 2, 2003, extends the powers of the government, which can now modify certain administrative procedures by ordinance.

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