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Traditionally organized in hierarchical structures accountable to the relevant minister, France's administration, i.e. her public service [which includes all national and local services except the judiciary] saw substantial changes over the last third of the twentieth century, with the emergence and development of independent public service authorities, not unlike the agencies found, for instance, in Britain and the United States.

Independent public service authorities: an overview
Importance of independent public service authorities in the French government system

France has, of course, long had public service institutions with strong guarantees of independence, such as examining and selection boards, and committees - some with quasi-jurisdictional status - such as the departmental land consolidation commissions (Commissions départementales de remembrement). And it could be said that the Conseil d’État [highest administrative court and government adviser] has throughout its history asserted its independence within the government system. But the category of independent public service authorities, which has emerged empirically, is nonetheless an innovation. It may even, at least in certain fields, represent a new approach to administration.

The establishment of independent public service authorities has not, however, come about in a systematic or preplanned way. On the contrary, only as new organizations gradually came into being enjoying particular guarantees and powers, did the concept of an independent public service authority emerge. No general definition has been given to this group of public service institutions, which has come to include a wide range of bodies, the first of them created before the term now used for them became common parlance: first they were set up and then subsequently became a genus. So they are in fact very diverse and even the category itself does not have clear-cut boundaries. Nevertheless, starting with an overall definition, we can draw a general picture of these authorities, before going on to consider the place they occupy today in France's administrative machinery.

With different fields of activity, resources and powers at their disposal¸ independent public service authorities nonetheless have certain features in common, allowing them to be defined as institutions set up by law outside the traditional public service structures, without legal personality of their own, but with strong guarantees of autonomy and responsibility for regulation in a given domain.

Such authorities may be classified under two main headings depending on whether their purpose is to regulate economic activities or protect citizens’ rights.

Independent public service authorities and economic life

A particularly appropriate sphere of intervention for independent public service authorities, the regulation of the market economy was the first sector in which they were established, with the creation in 1941 of the Banking Supervisory Commission (Commission de contrôle des banques) which was succeeded in 1984 by the Banking Commission (Commission bancaire). In 1989 the Supervisory Commission for the Insurance Sector (Commission de contrôle des assurances) was set up along the same lines. Today thought is being given to bringing these two bodies closer together.

Of particular importance are the Stock Exchange Commission (COB – Commission des opérations de Bourse) and the Competition Council (Conseil de la concurrence). Modelled on the US Securities and Exchange Commission, the Stock Exchange Commission was established by the Order of 28 September 1967. Its powers to regulate, monitor and impose sanctions were extended by the Acts of 2 August 1989 and 2 July 1996. Its sanctions procedure has been reorganized to meet the need to maintain a separation between the rapporteur stating the case from the legal point of view and the collegial body which then comes to a decision. A reform is currently under way to merge the COB with the Financial Markets Council (Conseil des marchés financiers), with a view to establishing a single authority for financial services and securities, comparable to the Financial Services Authority in the UK.

Established by the Order of 1 December 1986, the Competition Council - born out of the Technical Monopolies Commission (Commission technique des ententes) set up in 1953, which was replaced in 1977 by the Competition Commission - delivers opinions, imposes sanctions and issues injunctions to companies. It performs a central role in defining and implementing competition law.

With the new status conferred on the Bank of France by the Act of 4 August 1993, following ratification of the Maastricht Treaty and establishment of the single European currency, the Monetary Policy Council (Conseil de la politique monétaire) was set up with the task of determining monetary policy and, in particular, setting the interest rate. A Bank of France institution, its terms of reference and the very strong guarantees it enjoys are those of an independent public service authority: its members may not receive or even solicit instructions from anyone. Other independent public service authorities linked to the Bank of France have also been formed, including the Committee authorizing intermediaries involved in investment services (Comité des établissements de crédit et des entreprises d’investissement).

Monetary and financial activities are not the only economic spheres placed under the authority of independent public service authorities. For instance, the Act of 26 July 1996 set up a Telecommunications Regulator (Autorité de régulation des télécommunications) with the power to deliver opinions, make proposals, impose sanctions and regulate. Along similar lines, the Act of 10 February 2000 gave the Electricity Regulator (Commission de régulation de l’électricité) the task of ensuring that power transmission and distribution systems are properly used. Economic liberalization has developed in parallel with the emergence of regulatory authorities.

Independent public service authorities and citizens’ rights

The protection of citizens’ rights and, more specifically, those of the people in receipt of the relevant service is another sector of choice for independent public service authorities.

The Act of 3 January 1973 created the Ombudsman (Médiateur), inspired by the Swedish Ombudsman, who, under the terms of the Act of 13 January 1989, subsequently became an "independent authority", the Ombudsman of the Republic. Appointed by the President and the Council of Ministers, the Ombudsman considers any problem encountered by a citizen in dealings with the administration referred to him through a National Assembly deputy or senator. Over 51,000 complaints were forwarded to him in 1999. His main course of action is to seek an equitable solution. However, in the light of the cases with which he deals, the Ombudsman also formulates proposals for reform, especially through his public report, and in many cases these have led to amendments to legislation or regulations. With a delegate in each department, the Ombudsman is now established as an effective authority through whom citizens can appeal against bureaucratic inertia.

Under a policy to promote administrative transparency, the Act of 6 January 1978 established the National Commission on Information Technology and Civil Liberties (CNIL - Commission nationale de l’informatique et des libertés) and the Act of 17 July 1978 the Commission on Access to Administrative Documents (CADA - Commission d’accès aux documents administratifs). The CNIL ensures compliance with the general principles, laid down by law, of the protection of personal data stored on computer. With responsibility for authorizing the automated processing of information by ministries and government agencies and for receiving the compulsory declarations of such processing operations from individuals and private-sector businesses, it has become the authority recognized by all IT professionals. Some of the rules it applies are scheduled to be adapted to conform to the European Directive of 24 July 1995 on the protection of individuals with regard to the processing of personal data.

As for the CADA, since any difficulties in exercising the right of access to administrative documents are referred to it before any application to the courts, it performs a vital role in the practical application of this right, which it defines very broadly. It looks into 4,000 cases a year, and over 80% of the opinions it expresses on them are followed up by the Administration.

Highlighting the position of the independent public service authorities in relations between the public service and the citizens, the Act of 12 April 2000 on the latter's rights in their dealings with the public service contains various measures extending the powers of the Ombudsman, CNIL and CADA.

In the communications sphere, there has been wide recourse to independent public service authorities.

First of all, the Opinion Poll Commission (Commission des sondages) was established by the Act of 19 July 1977, followed by the Film Industry Ombudsman (Médiateur du cinéma), by that of 29 July 1982.

With the reorganization of the audiovisual sector, recourse to an independent public service authority became necessary in the communications sphere: first the High Authority for the Audiovisual Sector (Haute Autorité de l’audiovisuel) was set up by the Act of 29 July 1982. This was succeeded by the National Commission for Communication and Freedoms (Commission nationale de la communication et des libertés) - Act of 30 September 1986 - and then, most recently, by the Higher Council for the Audiovisual Sector (CSA - Conseil supérieur de l’audiovisuel) - Act of 17 January 1989. This succession of bodies very probably reflects the difficulties of moving away from direct State responsibility for broadcasting towards regulation by an independent authority. Nevertheless, the principle of such an authority has not been questioned, and it seems that the right balance has been achieved with the CSA, which has powers of appointment, authorization, sanction and regulation. In decisions delivered on 21 January 1994 and 27 July 2000, the Constitutional Council confirmed the importance of the CSA by defining it as an "independent authority, guarantor of the exercise of freedom of communication".

Over the past ten years, independent public service authorities set up to protect citizens have mushroomed in a variety of fields: the National Security Monitoring Commission with Responsibility for Telephone Tapping (Commission nationale des interceptions de sécurité) - Act of 11 July 1991, the Consultative Commission on National Defense Secrecy (Commission consultative du secret de la défense nationale) - Act of 8 July 1998, the Airport Nuisance Control Authority (Autorité de contrôle des nuisances aéroportaires) - Act of 12 July 1999, the Children’s Advocate (Défenseur des enfants) - Act of 6 March 2000, and the National Commission for Security Ethics (Commission nationale de déontologie de la sécurité) - Act of 6 June 2000.

The list is not closed. It could include institutions loosely classifiable as independent public service authorities, such as the National University Assessment Committee (Comité national d’évaluation des universités). Above all, new authorities will be added to it. There are plans for a nuclear safety authority, as well as proposals for entrusting an independent body with the campaign against discrimination. This shows how important the independent public service authorities have become in France's administrative machinery.

In very many respects, independent public service authorities have added a new dimension tailored to the needs of today's France. Their proliferation is, however, sparking off a debate as to the proper balance between them and other political and public service institutions.

A formula for meeting the new needs

The diversity of independent public service authorities undoubtedly makes it hard to adopt an overall approach. The CNIL, Stock Exchange Commission, Competition Council, Higher Council for the Audiovisual Sector and Telecommunications Regulator enjoy broad prerogatives, which they deploy through well-staffed services. Far fewer resources are, however, available to the Commission for Access to Public Service Documents, the Opinion Polls Commission and Film Industry Ombudsman. Nevertheless, all these authorities have certain features in common.

For them all, their first task is to provide impartial arbitration and a pluralist approach in a number of sensitive fields. This places specific demands on them regarding the way their members are appointed: collegiality - this is the case for all but three of them (Ombudsman of the Republic, Film Industry Ombudsman and Children's Advocate), and requires them to have certain guarantees.

As has traditionally been the case, they can, inter alia, deliver opinions, make proposals, give approval, impose sanctions and, on occasion, make appointments and even establish regulations. The innovation is the new concept of regulation, implying an acknowledged moral authority, a certain flexibility in forms of decision-making and also the fact that they take public opinion into account. Here, it should be noted that all independent public service authorities draw up annual public reports.

The independent public service authorities have found their place in the French constitutional framework and public law guarantees that jurisdictional controls are exercised over them. However, to date, the existence of independent public service authorities has not been written into the Constitution, although some would like this to happen. The question has also arisen as to whether such authorities are compatible with Article 20 of the Constitution, which states that "the Government shall have at its disposal the civil service". Nevertheless, faced with decisions on the CNIL (18 September 1986), Competition Council (23 January 1987), High Council for the Audiovisual Sector (17 January 1989) and Telecommunications Authority (23 July 1996), the Constitutional Council saw no constitutional obstacle to their creation. It even accepted that the authorities could be given statutory powers of regulation, provided these were limited in scope and complied with both Acts and decrees. With these limitations, the law has given the power of regulation to the CNIL, Stock Exchange Commission (with the approval of the Minister of Finance), High Council for the Audiovisual Sector (although to a lesser extent than the CNIL), and Telecommunications and Electricity Regulators.

The actions of independent public service authorities are subject to the authority of the courts.

This was stated by the Conseil d'État when considering the decisions which may be taken by the Ombudsman (10 July 1981). The Constitutional Council pointed out that the right to appeal against acts of the independent public service authorities, in common with the right to appeal against any decision by the public service authorities, is a constitutional imperative (decisions of 18 September 1986 and 17 January 1989). In many instances, the law provides for the possibility of applying to an administrative court [France has two separate court systems: one for matters to do with the public service - the administrative courts - and the other - ordinary courts - dealing with civil and criminal cases] where the judge can decide not just to set aside but also vary a decision referred to the court.

In the case of the independent public service authorities, the competent jurisdiction is normally the public service court. For regulation in the economic sphere, however, legislators have extended the competence of the ordinary courts by placing under the authority of the Paris Court of Appeal the decisions of the Competition Council, the sanctions - but not regulatory measures - decided by the Stock Exchange Commission, and the decisions taken by the Telecommunications Regulator in disputes between operators. The Constitutional Council has accepted such transfers of authority provided that these are for a specific and limited purpose and are decided in order to transfer the matter to the type of court "primarily concerned".

In this context, independent public service authorities are making a useful contribution to defining legislation appropriate to new spheres. They offer citizens guarantees and facilitate the regulation of sensitive activities. Their action is particularly effective when the task is not so much to regulate a sector as to define standards of behaviour and protect rights.

Balancing the roles of the various authorities in France

Although the independent public service authorities have so far fitted well into France's general constitutional and administrative machinery, they cannot go on developing indefinitely without giving rise to problems of balance vis-à-vis the political authorities - Parliament and Government - and other public service institutions.

One of the tasks of the independent public service authorities is to provide an informed background to important social debates through calm reflection by experts holding a diversity of views. Here, they come close to the "committees of wise men" whose role has also increased. These "committees of wise men" have been set up either temporarily, for example the Nationality Commission in 1986-87, or have become standing committees, as is the case of the National Ethics Committee (Comité national d'éthique), set up in 1983, and the High Council for Integration (Haut Conseil à l’intégration), established in 1989. Unlike the independent public service authorities, these committees' sole task is to ponder the issues and make proposals, since they have no regulatory or legal powers. Although the independent public service authorities and "committees of wise men" are called upon to help inform Parliament and Government, they must not usurp the latter's decision-making responsibility. For example, the arguments set out in experts’ reports informed the parliamentary debate leading to the Acts on bio-ethics of 25 and 29 July 1994, and their subsequent revision initiated in 1999. Similarly, certain powers may under no circumstances be given to an independent public service authority: in an opinion issued in 1999 and made public, the Conseil d'État stated that the independent public service authority envisaged in the field of nuclear safety could not be given authority to lay down public service regulations, since this is the sole province of the Government.

In the public service system as a whole, excessive development of independent public service authorities could cause problems. If the system is to be effective, these should be established only in those fields in which they are genuinely justified by the nature of the issues involved or the type of powers it is necessary to exercise. Regulation is appropriate in some sectors, but not everywhere. And to preserve the credibility and moral standing of the National Legal Service, there must not be a proliferation of independent public service authorities./.