The general interest does not represent public service…!
In a decision of 30 December 2020, the First Chamber of the Council of State had the opportunity to confirm that although medical and educational actions in favour of disabled children constitute a mission of general interest, the private management organisations providing them are not, however, entrusted with a public service mission (EC, 1st Chamber, 30 December 2020, no. 435325).
In this case, the Commission for the Rights and Autonomy of Disabled Persons (CDAPH) in French Guyana had sent a minor to a medical-educational institute for autistic people. On 2 July 2014, he joined the Les Clapotis institute run by the association of disabled persons, parents and their friends (ADAPEI) of French Guiana.
In view of the father’s conflictual relations with the establishment’s employees, on 3 November 2016, the president of the association suspended temporarily the services granted to the 16-year-old. His father therefore filed a summary application with the administrative court of French Guiana, followed by an appeal for excess of power, seeking the annulment of the decision of the president of the association.
The interim relief judge first admitted that the situation was urgent due to the lack of care for the teenager in a facility adapted to his disability since 3 November 2016; he thus ordered his reintegration into the medical-educational institute. Then the court of first instance granted his request and annulled the suspension decision.
However, on appeal by the association, the Council of State reversed the administrative court’s decision.
Thus, although associations make up the majority of those involved in the medico-social sector, they do not carry out a public service mission.
Medical-educational actions are a mission of general interest…
Article L. 312-1 of the Social Action and Families Code states that educational establishments or services providing primarily adapted education and social or medico-social support to minors or young adults with disabilities or adjustment difficulties are social and medico-social establishments and services.
ADAPEI of French Guiana is an association that works in the medico-social sector and manages the Les Clapotis medico-educational institute, which accepts in and supports disabled children and adolescents with intellectual disabilities.
The Council of State recalls that these medico-educational actions in favour of disabled children constitute a mission of general interest, regardless of whether the activity is managed by a public or private person.
… but these actions do not have the nature of a public service mission if they are carried out by a private body
However, it is not excluded that a private law body may be in charge of a public service. The legislator may, expressly or implicitly, recognise the activity of the body as a public service and, in the absence of law, this task is left to the judges.
However, since 2007, the Council of State has considered that “it follows from the provisions of the law of 30 June 1975, as clarified by their preparatory work, that the legislator intended to exclude the mission carried out by the private organisations managing work assistance centres from being a public service mission”. (EC, 22 February 2007, APREI, no. 264541).
This position was recently confirmed by the interim relief judge of the Council of State. Being referred a summary application for admission of a disabled adult to a specific medical home, the interim relief judge noted that the establishment to which she was seeking admission was managed by a private legal entity and that, consequently, its mission did not have the nature of a public service mission (EC, order, 26 March 2019, No. 428371).
The First Chamber of the Council of State thus reiterated a well-established case law by stating, in a more substantiated manner than previous case law, that “it follows, however, from the provisions of the law of 30 June 1975 on social and medico-social institutions and the law of 2 January 2002 renewing social and medico-social action, clarified by their preparatory work, that the legislator intended to exclude the mission carried out by the private bodies managing the establishments and services now mentioned in 2° of I of Article L. 312-1 of the Social Action and Family Code from being a public service mission”.
Thus, it appears from the judge’s interpretation of the texts that the legislator expressly denied the qualification of public service to all private persons managing social and medico-social establishments and services.
However, in this case, as the medical-educational institute was managed by a law 1901 association, it could not be considered as providing public service missions.
What is the consequence?
The main consequence of this interpretation of these legislative texts is that the administrative court does not have jurisdiction to hear disputes relating to a private law body managing a medico-social establishment.
The criterion for allocating the jurisdiction of the courts to these establishments was thus neither the recognition of the general interest nature of the missions that the body carries out, nor the nature, public or private, of the body, but rather the existence of public service missions.