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 ² ² ² The local committee of public services (1992) The access to information (1995) The Local Democracy Act (2002) The previous alternatives ² ² 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 l bill, water pressure and connection fee conflicts are out of the CE competence Þ only 51 cases involving users over the period Watertime workshop - 26 november 2004
Cases involving users from 1850 to 2003 (1) Watertime workshop - 26 november 2004
Cases involving users from 1850 to 2003 (5) Watertime workshop - 26 november 2004
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 Ø 3, the right to cancel a “right to water” delivered under the Old Regime’s administration Ø 3, the right to vote a new tax to provide DW Conseil d’Etat decisions Ø the “public service” comes first. The municipality is entitled to cancel any private access to water as & when required Ø the municipality sets the price of DWS: it is not a tax because to supply tap water is not a compulsory PS Ø 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 Ø 2 potential users refuse to have their connections built by the operator Ø 2 users deny any responsibility for the maintenance of their connections Conseil d’Etat decisions Ø the concession contract gives the operator the monopoly to connect users to the water network Ø the municipality is entitled to believe that the monopoly makes the DWS easier to operate Ø 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 Ø higher quantity of DW and a metered consumption Ø the same price per cubic meter whatever the consumption Conseil d’Etat decisions Ø the concession contract only foresees a fixed quantity of water whatever the effective consumption is Ø the operator may sell additional services to users Ø the price set up in the concession contract is worth only for the basic service Ø 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 Ø 1, beside the user (1902), has asked the “basic price” applied to the improved service Ø 50 claim to extend the operators’ duties (W quantity & quality, network extension) or to lower the price applied to users (1870 - 1913) CE decisions Ø neither the CE nor municipalities are competent to modify a private contract Ø none of the parties may invoke unforeseen contingencies to curb the concession contract clauses Ø 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: Ø fix price and submit connections to the needs of the PS (7) Ø reconnect people disconnected because of “rent troubles” (3) 19 users contest the public operator the right to: Ø charge them for the supply of drinking water or the connection to the water network (17) Ø monopolise the sale of meters (2) The CE decisions Ø the CE finds itself as being incompetent when users ground their legal action on their subscription contract (13) Ø 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: Ø 1 contest the choice of contracting-out the DWS because it comes with a price increase Ø 2 claim from the judge to cancel contracts that were signed up without any competition Ø 1 protests against a municipality that selected an operator by auctioning the DWS Ø 1 contests the price a municipality paid to buy its “junk” operator’s operating right back The CE decisions Ø price must allow nothing else but to recover the costs of the DWS Ø municipalities have to comply with the bidding procedure (1993) Ø municipalities should not receive any up-front fee (1995) Ø 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 Ø through the revenue sharing scheme Ø through the pay back of the DWS budget surplus into the municipal budget 4 users contest the way municipalities fix the price scales Ø the price could be lower with a better regulation Ø the fixed part of the price is too high The CE decisions Ø partners recover the full cost of DWS Ø the DWS budget surplus may be used by the municipality if no investment are planned for the DWS Ø 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 èAt the beginning of the XXth century, users found in municipalities partners to defend their interest èOne century later, users have stopped trusting local authorities to represent their expectations è The users’ claims have made their way to the lawmakers è 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
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