WATERTIME WORKSHOP
Luebeck, Germany - 26 november 2004
Participation and transparency
in urban water decision-making
Christelle Pezon
Users' participation in French drinking water
services from 1850 to 2003, through the
jurisprudence of the Conseil d'Etat
Management of Water and Sewerage Services
Presentation steps
• The institutional participation of users in DWS in
France and the Conseil d’Etat competence
• Cases involving users from 1850 to 2003: a
typology of users and of the opposed parties over
the period
• The nature of the users’ claims: from the right to
DW to the right to manage DWS
Watertime workshop - 26 november 2004
The institutional participation of users
 A very recent trend



The local committee of public services (1992)
The access to information (1995)
The Local Democracy Act (2002)
 The previous alternatives


The oral complain to local politicians
The case brought to a court
Watertime workshop - 26 november 2004
The Conseil d’Etat competence
• The supreme administrative court
The drinking water service:

a public service that cannot be privately owned
The responsibility of municipalities:


to organise a DWS (1884) in compliance with
national regulation
to check that the special principles of PS apply to
their DWS
• The limit of the CE competence
The subscription contract is a private contract

bill, water pressure and connection fee conflicts are
out of the CE competence
 only 51 cases involving users over the period
Watertime workshop - 26 november 2004
Cases involving users from 1850 to 2003 (1)
50
14
12
Annual cases
10
30
8
6
20
4
10
2
0
1849
0
1866
1883
Other parties
1900
1917
Cases involving users
1934
1951
1968
1985
Cases involving users cumulated
Watertime workshop - 26 november 2004
2002
Cumulated cases
40
Cases involving users from 1850 to 2003 (5)
50
14
12
1985
40
Annual cases
10
14 cases
out of 41
8
21 cases out of 187
6
30
20
12 cases out of 191
4
10
1922
2
0
1849
0
1866
1883
Other parties
1900
1917
1934
Cases involving users
1951
1968
1985
Cases involving users cumulated
Watertime workshop - 26 november 2004
2002
Cumulated cases
1957
A typology of users over the period (1)
• We can identify 3 main types of users
1. a person or company defending his own interest (22)
2. a person, company or association defending the right of
a category of users (domestic, industrial) (20)
3. a person or association asking for the respect of the
general interest (9)
1850
1900
1930
1953
1992
Watertime workshop - 26 november 2004
2003
A typology of users over the period (2)
• The CE rejected 12 out of the 22 cases involving
users who defended their own interest as being out
of its competence
• The beginning and the end of the XXth century
are the most conflicting sub-periods
1850
1900
1930
1953
1992
Watertime workshop - 26 november 2004
2003
A typology of opposed parties over the period (1)
• We can identify 4 types of opposed parties
a. the municipality (13)
b. the private operator (6)
c. the public operator (22)
d. the partnership municipality - private operator (10)
1850
1902
1927
1988
Watertime workshop - 26 november 2004
2003
A typology of opposed parties over the period (2)
• A first sub-period opposed individuals to municipalities
(1850/1900)
• Few and concentrated cases opposed users to private
operators during a second sub-period (1902/1927)
• The CE incompetence concerned conflicts opposing users
to public operators (1929/1988)
• A new kind of conflict has emerged since the 1990’s,
opposing users to both the organiser and the operator of the
DWS (1991/2003)
1991/2003
1850/00
1902/27
1929/88
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1850 / 1900
6 users contest the municipality to be responsible for
the DWS
 3, the right to cancel a “right to water” delivered under
the Old Regime’s administration
 3, the right to vote a new tax to provide DW
Conseil d’Etat decisions
 the “public service” comes first. The municipality is
entitled to cancel any private access to water as & when
required
 the municipality sets the price of DWS: it is not a tax
because to supply tap water is not a compulsory PS
 the price is included in the private contract signed up
between the operator and the user. The CE has no
competence to judge it
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1902 / 1927 (1)
4 people complain about their access to a privately
operated DWS
 2 potential users refuse to have their connections built by
the operator
 2 users deny any responsibility for the maintenance of
their connections
Conseil d’Etat decisions
 the concession contract gives the operator the monopoly
to connect users to the water network
 the municipality is entitled to believe that the monopoly
makes the DWS easier to operate
 the user owns his connection but the operator is the only
one in charge to maintain it
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1902 / 1927 (2)
1 user asks for an improved service at the same price
 higher quantity of DW and a metered consumption
 the same price per cubic meter whatever the consumption
Conseil d’Etat decisions
 the concession contract only foresees a fixed quantity of
water whatever the effective consumption is
 the operator may sell additional services to users
 the price set up in the concession contract is worth only
for the basic service
 the operator defines the price for unforeseen service. If
the users consider it is too high, they can keep only the
basic service
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1902 / 1927 (3)
The municipalities support the users
 1, beside the user (1902), has asked the “basic price”
applied to the improved service
 50 claim to extend the operators’ duties (W quantity &
quality, network extension) or to lower the price applied
to users (1870 - 1913)
CE decisions
 neither the CE nor municipalities are competent to modify a
private contract
 none of the parties may invoke unforeseen contingencies to
curb the concession contract clauses
 municipalities that claim extension of the operators’ duties
have to provide them with a compensation scheme on line with
the initial one
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1929 / 1988
10 users contest the municipality the right to:
 fix price and submit connections to the needs of the PS (7)
 reconnect people disconnected because of “rent troubles” (3)
19 users contest the public operator the right to:
 charge them for the supply of drinking water or the
connection to the water network (17)
 monopolise the sale of meters (2)
The CE decisions
 the CE finds itself as being incompetent when users ground
their legal action on their subscription contract (13)
 municipalities cannot give the monopoly of meters to their
in-house DWS
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1991 / 2003 (1)
5 users of recent contracting out DWS challenge
their municipalities:
 1 contest the choice of contracting-out the DWS because it comes
with a price increase
 2 claim from the judge to cancel contracts that were signed up
without any competition
 1 protests against a municipality that selected an operator by
auctioning the DWS
1 contests the price a municipality paid to buy its “junk” operator’s
operating right back
The CE decisions
 price must allow nothing else but to recover the costs of the DWS
 municipalities have to comply with the bidding procedure (1993)
 municipalities should not receive any up-front fee (1995)
 the contractual conditions of operating rights buyback would have
cost more to the municipality
Watertime workshop - 26 november 2004
The nature of the users’ claims: 1991 / 2003 (2)
2 users suspect the partners to overcharge the DWS
 through the revenue sharing scheme
 through the pay back of the DWS budget surplus into the
municipal budget
4 users contest the way municipalities fix the price
scales
 the price could be lower with a better regulation
 the fixed part of the price is too high
The CE decisions
 partners recover the full cost of DWS
 the DWS budget surplus may be used by the municipality if no
investment are planned for the DWS
 municipalities fix the price scale in compliance with the national
regulation (1992)
Watertime workshop - 26 november 2004
From the right to DW to the right to manage DWS
Users’ claims have successively:
• denied the municipality the right to organise the DWS
• missed the power to get access to service at lower prices
• contested the municipality to be the appropriate authority to
regulate privately operated DWS
At the beginning of the XXth century, users found in
municipalities partners to defend their interest
One century later, users have stopped trusting local
authorities to represent their expectations
 The users’ claims have made their way to the
lawmakers
 Suspicion and legal actions are the most visible
participation of users to DWS regulation
Watertime workshop - 26 november 2004
DANKE !
Watertime workshop - 26 november 2004