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The Pan-European General Principles on (Local) Public Services and the Rights of their Users
(compiled by Ulrich Stelkens)
IV. "Update" of Recommendation No. R (97)7 by Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
I. Definition of (Local or Regional) Public Service in the Preambule of Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
"[...] for the purposes of this recommendation, a local or regional public service is a service in respect of which, pursuant to a broad social agreement expressed usually through a decision of a competent democratic public authority, overall continuity and individual access are ensured by a local or regional public authority through direct provision (through the local or regional public sector) and/or through the financing of its provision by third parties and/or by establishing specific regulations which go beyond those which apply to other services."
II. The 'Public Utility Doctrine' Underlying Section 2 of Recommendation No R(93)7 of the Committee of Ministers to member states on privatisation of public undertakings and activities
See on Section 2 point 3.2.3. of the Explanatory memorandum (reproduced in CoE (ed.), The administration and you (1st edition 1996/1997), pp. 494 ff.):"Section 2: Protection of users' and consumers' rights
In the case of privatisation concerning:
- a public utility, such as the provision of public transport, telecommunications, water, gas, electricity, as well as any other activity determined by national law to be in the nature of a public utility, or
- a monopoly providing goods or services to a large public which will continue to be a monopoly after privatisation,
the conditions of the privatisation should be determined with due regard to the continuity, accessibility (including price) and quality of the service in the public interest. Consultation of consumers or users should take place where this is appropriate.
The interests taken into account pursuant to the previous paragraph should, if necessary, be safeguarded by means of a regulatory authority with effective possibilities to compel compliance on the part of the privatised undertaking or on the part of the person carrying out the privatised activity, or by other effective means including, where appropriate, the availability of speedy and inexpensive judicial or administrative remedies or arbitration.
Before proceeding to such a privatisation, the public authorities should inform, by any appropriate means, the users or consumers of the ways in which they intend to protect the interests taken into account pursuant to the two preceding paragraphs."
"The privatisation of certain undertakings or activities is liable to have direct implications for the interests of those members of the public who are users or consumers of the product (whether goods or services) of the undertaking or activity in question. This arises in particular where the undertaking or activity to be privatised is a "public utility". The notion of a public utility is not precise but it is traditionally related to such essential activities in the public interest as the provision of gas, electricity, water, public transport, telecommunications, etc. This is not an exhaustive list and the precise definition of the concept of public utility must ultimately be left to the national legal system. A second case in which the protection of users and consumers is of particular importance is where the undertaking or activity to be privatised is a state monopoly providing goods or services to a large public which will retain
its monopoly status after privatisation. The transfer from public into private hands of a monopoly (whether a legal monopoly or a de facto monopoly) in respect of the provision of goods or services to a large public is liable to call for special measures to protect the interests of users and consumers after privatisation.This principle indicates a number of particular concerns to whichthe member states ought to have due regard. These are:
– the need to ensure that the continuity, accessibility (including price) and quality of the service is maintained after privatisation;
– the need, where this is appropriate, for the public authorities to consult consumers or users to this end;
– the fact that it may be necessary (a necessity which it is for the member state concerned to assess) to provide a means whereby the privatised undertaking, or those in charge of the privatised activity, can be effectively compelled to comply with those conditions of the privatisation which are directed to the protection of users and consumers. These means may, if necessary, involve the setting up of a regulatory authority, or the provision of special, speedy and inexpensive judicial or administrative remedies or arbitration; and
– the need to inform, by appropriate means, the users or consumers concerned in advance of the means by which their interests, above referred to, will be protected.
Click here for the genesis of Recommendation No R(93)7 in general. For Recommendation No. R (93)7 as a general source of the pan-European general principles on privatisation click here; for the "privatisation procedures" provided in Section 3 of the Appendix to Recommendation No. R (93)7 click here
Preambule of the Recommendation highlights the role of local public services:
"The Committee of Ministers
[...]
Considering that local public services shape the local inhabitants´ everyday environment and determine, to a large extent, their quality of life;
Considering that local public services are one of the vital dimensions of local self-government, in respect of which they allow for its concrete expression and a measure of its real development;
Considering that they account for an important part of the national economy by virtue of the expenditure they incur, the resources they mobilise and the functions they fulfil;
Considering that these services make a significant contribution to local development and to the spatial organisation of facilities and services within the territory;
Considering that they play a leading role in organising social solidarity by providing essential services to meet public needs;
Considering that in view of the above, as far as possible, the users of these services should enjoy the same rights and safeguards as those afforded by national and regional public services, and in the framework of the relevant legislation should enjoy, where appropriate, protection comparable to that available to the customers of private sector enterprises;
Given the considerable variety of duties performed by local public services and the emergence of new social demands;
Given the contribution that local public services can make to modernising public administration and to promoting technical or social innovation;
Given the scope of the changes currently under way in these services with a view to finding more efficient management methods, in particular because of the need to better control public expenditure;
Given the progress already made in a number of countries in establishing rights and safeguards for users of public services, particularly at the local level, but also the not insignificant inequalities remaining in these areas;
Given that local public services can make a significant contribution to resolving issues of serious concern to member States and their citizens, such as job creation, social solidarity and cohesion, improving democracy, the respect for human rights in practice, or environmental protection;
Given the need to facilitate the integration of local public services into modern economic mechanisms, without however creating obstacles to free competition;
Considering that member States should make modernising the management and operating methods of local public services, a priority, while respecting the principles of local self-government, users´ rights and the rules of a market economy,
Recommends that the governments of member States:
- have regard to the „Guidelines for local public services in Europe“, attached to this Recommendation, in framing their policies and legislations, so as to encourage local authorities to develop their public services in order to meet the needs of the community more effectively and to respect users´ rights more fully;
[...]."
In the Appendix of this Recommendation, 17 "guidelines" are drawn up and explained. Local public services should
- ensure the principle of equality for users in a complete and practical way and respect the principles of non-discrimination and neutrality;
- guarantee the continuity of essential services for the population within the limits of economic and budgetary constraints;
- contribute to sustainable development and to a balanced and rational distribution of available resources throughout the territory of the local authority;
- continuously improve the quality of their services to respond to changing social demands;
- organise communication with users ensuring all interested parties appropriate information about their rights and the services which they may obtain, as well as about the applicable rules;
- organise their public services in order to allow users, whenever it is appropriate, to choose between various services or even various suppliers;
- subscribe to the development of users' rights and protection in the framework of the relevant legislation;
- Users of local public services should be recognised and served as such.
"Guidelines" 2 and 3 seem to be fundamental for the notion of public services:
"2. Local public services should ensure the principle of equality for users in a complete and practical way and they should respect the principles of non-discrimination and neutrality.
Local services should observe the general principles of public services: equality, neutrality, non-discrimination and continuity, and they are charged with looking after the public interest and ensuring a rational balance between resources and expenditure.
In order to do this, they should resort to all forms of inter-municipal co-operation which might allow them to improve their performance.
Their goal is to ensure genuine and complete equality among users, and this may require differential treatment (rates, assistance, conditions of access, etc.) in appropriate cases in order to take account of de facto differences in the situation of users or candidates for the use of a service. They respect the principles of neutrality and non-discrimination in respect of users, freedom of opinion and the whole range of public freedoms which they are under a duty to guarantee and promote.
3. Local public services should guarantee the continuity of essential services for the population within the limits of economic and budgetary constraints.
In keeping with the principle of continuity, they should guarantee the non-interruption of the provision of essential services to the population, within the limits of economic and budgetary constraints.
Permanence and continuity are inherent in many local public services: the supply of drinking water, gas and electricity, fire-fighting, household refuse collection, the provision of district heating systems, education, etc. These principles must be reconciled with the rights of the staff of the service, including those staff employed by a contractor providing a service on behalf of a local authority. It is, therefore, necessary to regulate the situation of the whole of the public services at national/regional level by means of legislation or agreements between employees and employers.
According priority to the protection of the great majority of the population´s interests may lead to the drawing up of a list of the services where a total stoppage, even a temporary one, is unacceptable. In such cases prior notice should be given of unavoidable stoppage of work and/or a minimum service should be provided.
National and regional regulations should be complemented where appropriate by local agreements setting out the arrangements for avoiding the total closure of these services on special occasions, such as holidays and extended or long weekends, with a view to avoiding the total closure of such services for periods of time which are incompatible with the interests they are meant to protect.
The principle of continuity and the principle of equality coincide when it is necessary to maintain certain public services even in places where the low density of population makes them unprofitable, particularly in rural areas. In those cases, the closing down of a public service should be the result of a decision supported by stated reasons which demonstrate that alternative solutions such as regrouping of services, multiple services access desks or use of modern technologies, are not viable.
Local public services should contribute to social cohesion, either by providing solidarity services established by law thus contributing to the implementation of social aid policies covering the national community as a whole; or by using their own powers to supplement and build upon these policies, according to the needs and resources existing at the local level.
Their concern is to strengthen local community cohesion to avoid rips in the social fabric and to maintain solidarity between local communities, thanks to the quality of the services they deliver to the population, and in particular to the disadvantaged categories. They aim at maintaining a harmonious community life by fostering economic progress, without which there can be no sustainable social progress."
IV. "Update" of Recommendation No. R (97)7 by Recommendation CM/Rec(2007)4 of the Committee of Ministers to member states on local and regional public services
The Preambule of Recommendation CM/Rec(2007)4 refers to all earlier sources on local and regional public services considered as relevant:
"Taking into account the following recommendations which it has addressed to member states:
– Recommendation No. R (87)12 on the role of local and regional authorities in employment policy;
– Recommendation No. R (90)12 on services and infrastructures in rural areas;
– Recommendation No. R (97)7 on local public services and the rights of their users;
– Rec(2001)19 on the participation of citizens in local public life;
– Rec(2003)2 on neighbourhood services in disadvantaged urban areas;
Taking note of the following recommendations and resolutions of the Congress of Local and Regional Authorities of the Council of Europe:
– Recommendation 114 (2002) on local authorities and public utilities;
– Resolution 140 (2002) on local authorities and public utilities;
– Recommendation 182 (2005) on public participation in local affairs and elections;
– Recommendation 188 (2006) on good governance in European metropolitan areas;
Having regard to Resolution No. 1 on "The Role of Local and Regional Authorities in the Provision of Local Social Services" of the Conference of European Ministers responsible for Local and Regional Government, adopted in Istanbul in 2000;
Having regard to the principles of regional self-government adopted by the Conference of European Ministers responsible for Local and Regional Government in 2002 in Helsinki;
Having regard to the following reports of the Steering Committee on Local and Regional Democracy (CDLR):
– The role of competitive tendering in the efficient provision of local services (1993);
– Participation by citizens-consumers in the management of local public services (1994);
– The use of performance indicators in local public services (1997);
– Management and funding of urban public transport (1999);
– Management of municipal real estate property (1999);
– Participation of citizens in local public life (2000);
– The role of local authorities in the field of local social services (2000);
– Neighbourhood services in disadvantaged urban areas and in areas of low population (2001);
– The risks arising from local authorities’ financial obligations (2002);
– Budgetary procedures and budget management at local authority level (2002);
Having regard to the Handbook of Good Practice in Public Ethics at Local Level, prepared by the CDLR and adopted on 31 March 2004 at the Conference on Ethical Standards in the Public Sector in Noordwijkerhout;
Having regard to Opinion No. 26 (2006) of the Congress of Local and Regional Authorities of the Council of Europe on the preliminary draft consolidated recommendation on local and regional public services, drafted by the CDLR (CDLR (2006) 14)"
The main aim of Recommendation CM/Rec(2007)4 is defined in the last recital of the preambule:
"Considering that the changes that have taken place since the adoption of Recommendation No. R (97)7 of the Committee of Ministers to member states on local public services and the rights of their users justify its being updated by means of the present recommendation"
Then follow 17 recommendations on
I. The role and the importance of local and regional public services (recommendation 1)
II. The decentralisation of public services (recommendations 2 - 4)
III. Service users’ role in defining, regulating and managing local and regional public services (recommendations 5 - 9)
IV. The legal framework governing local and regional public services (recommendations 10 - 11)
V. Performance management of local and regional public services (recommendations 12 - 14)
VII. The action to be taken on this recommendation (recommendation 16 - 17)
In the Appendix to the recommendation 83 "Guidelines on local and regional public services" are spelled out:
Part I – Guidelines addressed to central authorities (guidelines 1 - 20)
Part II – Guidelines for local and regional authorities (guidelines 21 - 83)
V. The Pan-European General Principles on Transfrontier Cooperation in the Provision of Public Services
For the pan-European general principles on transfrontier cooperation in the provisions of public services click here