Public Service Management and Provision
Constitutional Public Service Budgets
The Constitution broadly covers the social benefits of administrative activity, presenting it as a mandate rather than a possibility. However, the European Commission (EC) does not permit an all-encompassing public administration that excludes or marginalizes the private sector. It requires a formal law to explicitly reserve a service for the public sector.
For a service to be considered public, it must present an essential consideration. This essential consideration is a characteristic value determined by the legislator. However, as a concept found in the Constitution itself, its final interpretation rests with the Constitutional Court.
Reservation within the public sector doesn’t necessitate direct management by the administration. It can be:
- Direct Management: The administration directly provides the service.
- Indirect Management: An external agent, a private company, or an “outsourced” entity provides the service while the administration retains ownership.
Public service reservation doesn’t automatically imply a monopoly. A monopoly arises if the administration manages the service alone, excluding other entities, or entrusts management exclusively to a private company.
Monopolies favoring the administration are permissible under specific circumstances, such as ensuring unified management under strict public control.
Private monopolies managing public services have often been justified by the need to compensate the operator for substantial investments, as initially seen with public lighting.
Economic Services of General Interest
Guiding Principles of Public Service
a) Principle of Continuity:
A public service addresses a social interest requiring permanent effectiveness. Activities serving such interests cannot be solely subject to market agents and economic efficiency criteria.
Continuity doesn’t necessarily mean constant operation, but regularity. The service must be sufficiently regular to meet the specific needs it serves (e.g., a food market needn’t operate 24/7, unlike a hospital emergency room or electricity service).
Continuity applies whether the administration or a contractor provides the service. In the latter case, the contractor must ensure agreed-upon continuity.
Public interest prevails even during strikes, justifying minimum service requirements regardless of management.
b) Principle of Equality:
This principle ensures non-discrimination in access and treatment. It’s not about formal equality (identical conditions for all) but material equality (each according to their needs). Reasonable and proportionate differences in access and delivery are acceptable if based on social purposes (e.g., reduced rates for seniors) or business strategies for economic services (special rates for large users), provided they adhere to transparency and non-discrimination.
c) Principle of Universality:
The service must be accessible to all recipients.
d) Principle of Mutability:
The service owner or manager can adjust service conditions when circumstances warrant.
e) Principle of Quality:
This principle, originating in European Community Law, empowers the administration with regulatory, planning, implementation, adaptation, and control powers to ensure and improve service performance levels and standards.
For some economic services, EU directives mandate specific quality levels, including user rights to minimum quality.
f) Principle of Affordability:
Public services must be economically accessible, but not necessarily free. While some services are free due to constitutional mandates (e.g., primary education), there’s no general principle of gratuity.
The administration can impose user fees to partially finance the service. While market forces influence pricing, the administration can set maximum prices or offer certain benefits for free.
Generally, prices should cover service costs. However, affordability may necessitate prices below cost, with budget deficits covering the difference.
Management Modes
There are two major options: direct management, public administration or management and indirectly through private individuals. Each of these options in turn supports a variety of ways.
They also give formulas that combine public and private presence, so that one could speak of a third option, the joint management.
– Public administration is conducting a public body physically. You can use different forms of organization whose range lies in the degree of legal autonomy enjoyed by the organization providing the service:
– Independent management and indispensable minimum with a simple organic specialization within the same day administration.
– Creation of a public body that manages the service.
– Creation of a corporation with public capital to manage the service.
The management is developed with a total submission to private law and raises common problems and sensitive management with the advantages of flexibility and freedom that private law allows, but without the accountability and control systems imposed, which ultimately term are derived from enterprise risk and capital invested.
– Indirect management
1) The provision of public services is the most widespread and characteristic formula of indirect management of public services.
The concessionaire is a private subject and all its internal organization is subject to private law. Is usually a corporation. Importantly, the management of the service is done at the risk and account of the dealer, you have to get the profit margin in accordance with the concession contract that states:
a) On the one hand, charges for the service set by the government and other compensation provided.
b) On the other hand, the costs of the service, to be assumed.
These two references to income and cost-define the scope of its benefits. However, one must keep in mind that this is a management contract, which pays priority attention to the adequate provision of service, and that any alteration unpredictable costs should not lead to the rigorous application of the principle of risk and responsibility : If there has been mismanagement of the concessionaire, and alteration, therefore, has an external source and unpredictable, the Administration should assist the concessionaire for the service can maintain.
The legal regime of private law that largely takes place dealer activity is exceptional in large part by what means the service: to ensure and maintain order and provide equal, the licensee may delegated powers to stop police and being a beneficiary of the exercise of certain public powers (eg of eminent domain).
From the user perspective, the delegated exercise of police powers exercised by the dealer assumes that all the acts it performs in relation to the service may be appealed to the administration that it holds. The resolution of the Directors, of course, can be used if necessary to the administrative jurisdiction.
The obligations of the concessionaire has two sources:
a) Some are derived strictly from the contract with the Administration.
b) Others are the Administration, as head of the service, can impose.
From this second position, the administration, through orders or regulations may specify the obligations of the concessionaire, which sets even modifying the contract, which will result in compensation, if necessary, the contractor and the recomposition of the economic clause financial.
Here you can see, ultimately, positional duality of public administration in administrative contracts:
a) On one hand, certainly is part of a contract.
b) At the same time, on the other hand, is situated somewhat above the contract, responsible for public works or services that may require decisions and interventions that do not comply with the stipulations of the contract.
This duality explains the changeability of administrative contracts to suit the public interest that the Administration appreciated, if necessary compensating the contractor.
In extreme cases, the administration has even the power to grant bail. The bailout is a specific formula for terminating the concession, the others are common, such as compliance, during the term expiration, etc .- and is a decision of the Administration. Normally you will have to compensate the concessionaire for the operation time was left, although it will often be a way to save the service of the deficit that, for various reasons, we could find. In these cases it is often not appropriate compensation.
2) Other forms of indirect management and mixed
In these other formulas involving a particular per there is also a major presence management, although not exclusively by the Administration.
The concert is presented as an appropriate way when a private individual has the appropriate infrastructure and facilities for the provision of a publicly owned.
An opposite assumption is that characterizes the formula known as interest management: the administration has the facilities, but needs the manager or management team, in return for a fee usually determined, provides the private sector.
Finally, the so-called mixed economy is the epitome of the character of these formulas: it is for management services, a partnership with public and private capital, a ratio that supports, obviously, many variations.
24. The provision of services: general standards of service and user status
The legal relationship between the user and the provider of services.
a) It is a relationship in nature predominantly “objective”, the main part of its content is excluded from the autonomy of the parties and determined by legal rules is imperative.
b) It is a relationship in nature predominantly “public”, although there also exist legal and private elements.
c) The establishment of this relationship can take place either through formal technical public (admission unilateral administrative act) or private (contract).
d) It is the user in a particular subject position, thereby subjecting the management and disciplinary powers of the agency or company service provider.
User rights
User rights are set in a particular way by the specific rules governing each service. Generally can be identified as follows:
a) “Right to access the service,” which sometimes can be conditioned.
b) “Right to enjoy the service in terms of quality and quantity predetermined by the rules governing the same.”
c) In some services have appeared “participation rights” of users in the service configuration.
User Obligations and Duties
The main duties and responsibilities of users are:
1. Compliance with service rules set out in their regulatory standards. Failure of these starts the disciplinary power of the Administration, which could deprive the user of the temporary use of the Service or to impose any sanction.
2. He is obliged to payment of the consideration which they are established by usage.