Existe-t-il des limites juridiques à la privatisation des entreprises publiques ?

Abstract

The world-wide privatization movement raises the question whether there are any definite limits to privatizing public enterprise. The question is examined from a strictly legal point of view in a perspective of comparative law covering the United Kingdom as the most advanced privatising State, France and Italy, which both traditionally have a rather strong public sector. A first part of the examination is devoted to an account of the actual state of substantive (rather than formal) privatization in these countries, and to the legal instruments used or required to accomplish it. Following a distinction between privatization of public enterprises acting in the industrial or commercial sector, either simply as state-owned private enterprises or as enterprises vested with a specific public utility mission, and other enterprises more directly linked to the exercise of public authority, it is, first, noted that substantive privatization may be subject to a number of requirements of form and procedure, such as a requirement of privatization by statutory instrument where the enterprise has been established as a public enterprise by statute in the first place, but that in none of the hypothesis there are limits of substantive law definitely inhibiting the realization of the political will to privatize parts or sectors of the public enterprise. This holds true not only for enterprises acting in the industrial or commercial sector, but also for activities directly ancillary to the exercise of public authority, such as the establishment and operation of State prisons, and for the very accomplishment of tasks of public administration, since, as the example of the UK shows, many of these activities of State administration may be contracted out so that, as a result, the State retains no more than a role of coordination and control. In a second part the examination is extended to possible future privatization developments as in France and Italy the movement has not yet gone as far as in the United Kingdom. Based again on a distinction between public enterprises acting in the industrial and commercial sector, and other parts of the State’s economic activities in the public interest, the examination is first carried to an analysis of whether under French law, public services of a national character as well as true de facto monopolies may be privatized, and again the answer is yes, provided that privatization results in or is preceded by a reduction of the national scope of the public service or by a dissolution of the monopoly. Likewise, under Italian law, there would ultimately be no definite legal obstacle to privatize “essentially public services” other than obstacles of form and procedure. However, the legal issues now are of a constitutional nature, and they are even more so when it comes to privatising other elements of genuine State authority. There is, indeed, a controversy whether there is a hard core of “constitutionally” established or even preestablished public service, which, as a matter of constitutional law or even of “supra-constitutional” law may not be subject to privatization and its economic rationale. However, as the pouvoir constituant may not be limited in its action by the pouvoir constitue, the author again concludes that, as a matter merely of law, there is no legal limit to the political will to privatization, if there is such will on a sufficiently broad basis. Whether such political will is socially desirable and justifiable as a matter of institutional economics is not the subject of the examination.