The Hollowing Out of the Public Interest
Mapping the geography of this new crossover pathway has revealed a field of public-private circulation that is often made invisible by the diversity of the policy domains involved as well as of its denizens’ institutional and professional affiliations. The success of the bridge, opened up some twenty-five years ago, connecting the political and administrative elites to the corporate law, is seen in the disparate set of players (politicians, staff of cabinet offices, top-level bureaucrats, regulators, business lawyers, corporate executives) who now navigate both sides of the public-private divide. The lines delimiting this gray zone, at the intersection of government, politics, law, and business, are still fuzzy and contested as the conflicts of interest issue has gained saliency in the public debate. But the field’s effect—or in other words, the pull of its gravity—is strong enough to diffuse its reform lexicon of public-private partnerships, and trigger the proliferation of clubs, think tanks, and other colloquia that espouse the credo of moving beyond the binary partition between public and private.
We do not intend to deliver an exhaustive topography of this zone that has emerged at the margins of the state. Its ramifications extend well beyond the field of law, particularly if one ventures into the accounting, financial, or banking activities of the state. Rather, our aim is to trace the growing expansion and autonomy of the interstitial space bordering on government, politics, and business—and thereby assess its transformative effects on categories and principles of vision of the state and its role vis-à-vis markets.
This dynamic development can be seen by following the trail of this group of mobile and multipositioned civil servants or politicians who turned corporate lawyers. As they invent new professional know-how and career paths, they personify, more than any other group, the dynamics of this interstitial space. They collectively act as brokers between the various poles of this field, create points of convergence, and actively disseminate new ways of thinking of the state and its role vis-à-vis markets. The density of this field of public-private intermediation can also be measured by looking at a diverse range of seemingly secondary platforms, including professional colloquia, sector-specific congresses, and other policy-oriented meetings and discussion series that are explicitly aimed at bringing together public and private professionals. These arenas provide participants with opportunities to liberate themselves from their respective institutional or professional loyalties and to profess the virtues of public-private synergies.
When it comes to assessing the transformative effects of this growing field of public-private intermediation, one should not look for consensus or osmosis of public-sector and private-sector professions and institutions. Instead, we suggest considering the production and consolidation of a new common sense of state reform shared by all the field’s denizens regarding its new regulatory role as promoter of competitive markets, and its public-private social and professional foundations. This chapter looks at its propagation at the very core of the public bastions where state categories are shaped and legitimated—for example, law schools, regulatory agencies, and the Conseil d’État, which have in large part incorporated the public-private paradigm into legal doctrine, judicial case law, and bureaucratic categories.
A New Policy Common Sense
Following the intuition that a field is always personified by the players who most thoroughly incarnate the properties, itineraries, and attitudes that are deemed to be relevant therein, one must first track the protagonists who have traveled the new paths between public and private, and in some instances blazed the trail. Their trajectories reveal a collection of seemingly secondary platforms (clubs, congresses, colloquia) that constitute neutral locations where the new common knowledge of the public-private partnership is formed.1
Professional Synergies and Competitive Advantages
As they circulate in-between the public and the private, the crossovers produce new representations of this relationship. Interestingly enough, the ex–civil servants do not view their new lawyer trade as a rupture or change of state. Instead they prefer to see it as a kind of continuation of their public service mission, just like this énarque-turned-lawyer who feels he is still “defending the public interest in the private sector” (interview 25, man, ENA graduate, former minister, public law and lobbying). In the same way, when a former deputy director in a regulatory agency discusses his transition to the corporate department in a British law firm, he underscores that the move is “a natural prolongation of [his] former functions on the regulatory side” (interview 23, man, ENA graduate, securities law). The BKA Selas (Bruno Kern & Associés) website highlights its associates’ “experience in high-level government administration, Parliament and local government authorities,” and ultimately adopts the jargon of administrative law to define its commercial position: the firm’s members conceive their trade as that of “public service adjuncts” in that they emphasize their advisory role in “assistance to public decision making.”2 In the words of one member of the Conseil d’État, it is as if they “continue to advise the State, but more effectively [sic],” and indeed fulfill “as lobbyist in Brussels, a public service function.”3 While this discourse is certainly representative of the “collective bad faith by which a group puts on blinkers and refuses to see the foundations of its existence and its power,”4 (i.e., the distinctive brokering position it occupies and the profits that it offers), it would be a mistake to take this representation as nothing more than dissembling. In so doing, one would ignore the existence of an established field of public-private practices—a space that produces and refers to its own norms and models of excellence. If these players affirm high and low that the public interest can henceforth be served in a variety of public or private ways, it is because the liminal space that they have helped build has furnished fertile ground for new beliefs regarding the many benefits expected from partnerships and synergies between the public and private spheres: administrative efficacy and efficiency, reduction of public spending, new “breathing room [sic]” in public service, and so forth. It is true that many elements in their new professional practice connote a continuity of practices and forms of action. Frédéric Salat-Baroux, former secretary general of the presidency under Jacques Chirac, for instance, is in French Public Law and Government Affairs Practice with Weil & Gotshall. Laurent Deruy, former member of the Cour des comptes, works in the Government & Public Sector department at Gide, “regularly advising and representing in court French and foreign public institutions and private corporations.” Do they not after all continue to serve the state when they are called upon to defend France’s main public sector financial institution (Caisse des dépôts et consignations), a historically state-owned electric utilities company (EDF), or Paris transport authority (RATP)? The belief is widely shared among the crossovers:
I find myself in meetings with former colleagues from the Conseil d’État who are cabinet staff members and we are actually doing the same job; that’s what I am saying to my colleagues who stayed at the Conseil d’État: I really still have the impression that I am advising the State but in a more efficient manner than what it is possible to do in the ministries’ legal departments, because when there is a dossier which involves a large company facing financial or economic difficulties, then one needs experts in bankruptcy law, labor law, public law, financial law, competition law, etc…. If one commissions a law firm as ours, it is a guarantee to have excellence in all these domains and a capacity to mobilize up to a dozen lawyers, a sort of bulldozer … and this, the administration departments cannot do, they have neither expertise nor the labor force, except maybe in the ministry of the economy; so we are in reality complementary … that’s why I am saying to my colleagues at the Conseil d’État who don’t understand why the State is calling upon law firms. (interview 14, man, Conseil d’État, ENA graduate, public law of business)
Truly enough, these former civil servants are the natural leaders of the “Public law, Compliance, Regulatory, and Competition departments that have proliferated in the past twenty years in Paris corporate law firms, and in the private sector they continue to assume the sectoral attributions they had in the public sectors. Interestingly, far from being shameful, their state experience is proudly put forward in their law firms’ webpages as it seems to attest to the strength of their track record; their state credentials are even often displayed on business cards that identify them as “attorney at law—former ENA graduate” or “attorney at law—former minister.”
In fact, these civil-servants-turned-lawyers do indeed maintain a degree of proximity with the administrative world, which in turn recognizes them as natural interlocutors and readily keeps the door open for them:
[being a former énarque] makes it easier for me to talk with the administration…. They know I am not a lawyer like the others. First of all, I will never try to hoodwink them, I will never talk misleading nonsense to them, and I will never do anything that is contrary to my convictions, and thirdly, I will always hold the public interest in the greatest respect. And those are things that people know, that they feel, and it can be useful. [The same person adds:] when I go to make a pitch, to advise the State or a local authority, I have a plus, not because I am a former public servant, but simply because people feel that I still have the sense of public service. (interview 14, man, Conseil d’État, ENA graduate, public law of business)
If representatives of the private sector are seen as intruders in the state, as it would appear in the demurrals of the rapporteurs from the Cour des comptes concerning the role of a handful of firms, such as Cap Gemini and McKinsey & Cie, in implementing the overhaul of public policies over the past decade (Révision générale des politiques publiques, RGPP),5 this hostility may wane when a former civil servant comes forward, “when these interests are represented by someone who is himself a member of a grand corps, or more modestly, a former graduate of one of the elite schools, who has crossed over to the other side, as they say. In fact, French-style lobbying is never more effective than when it takes place between graduates of Polytechnique or ENA, or better still between former members of an elite corps … to be effective a lobbyist must never appear to be one, that is to say they must be able to talk with their interlocutors about something else that has nothing to do with their mandate, up to the moment when, as a gesture of friendship, your comrade will do you a favor or will consider the arguments proffered, but ‘in an incidental manner.’ ”6 This “French-style lobbying” here formalized by the cofounder of August & Debouzy corporate law firm can easily make its way into the core of the state apparatus, all the more so as it appears in the guise of a network of solidarity between former classmates, of a “friendly society” of members of an elite group of former colleagues in government. Inversely, these same networks can prove useful within the bar—witness this member of the Conseil d’État who is satisfied with his decision to recruit his hirees from his original public service corps: “my co-associate was (also) a member of the Conseil d’État, that makes things considerably simpler, you start a sentence, they can finish it, one has the same reflexes, the same habits. So it’s practical” (interview 14, man, Conseil d’État, ENA graduate, public law of business).
Knowing this, it is no surprise that the crossovers remain connected to the state and continue to navigate around its periphery. They are often the ones called upon to represent the private sector in the many working groups and experts’ committees set up by ministries or regulatory agencies when drafting new pieces of legislation or bringing together proposals for policy reform. In this way, the ties and friendships forged in the administration are perpetuated across the public-private divide. One énarque-turned-lawyer explains how he has kept up many working relationships with former colleagues:
for the State, I work when they ask for my opinions, but free of charge. But that’s … unofficial; I’m consulted by public authorities, by the Conseil d’État…. They come to see me, to ask me first if I’m familiar with the case file or not, and if I have any bias in the matter. Then, I am often cited by public rapporteurs at the Conseil d’État…. Upon occasion I have given my opinion, or corrected draft texts. I have corrected administrative instructions. (interview 8, man, ENA, lawyer, tax law)
Far from leaving the public sphere for the private sector, these top civil servants act as intermediaries straddling both sectors, with the capacity to pass through the walls as it were. They see public action as accountable to the expectations and even the demands of the private sector, and they see the latter as a natural adjunct to public authority. They alternate between developing the public affairs of private companies, and handling the private business of the state. For example, a former member of the Conseil d’État, who after a stint directing the public affairs pole at the Gide corporate law firm, returned to the Conseil d’État at Palais-Royal for a couple of years (1998–2000), and then took over management of the private property assets of the City of Paris. It would seem that these “ex’s” have never been more at ease than in these cases mingling public and private, that they often consider them to be “the most attractive cases” of their career and their “most outstanding feat of accomplishment,” for instance the introduction to the stock market of France’s nuclear power multinational company Areva, handled by an énarque-turned-lawyer at DLA Piper, a case file that “involves both public and private law, securities and equity law, with at stake the market introduction of Areva shares and the need to retire investment certificates.”7 In this domain the énarque-turned-lawyer could make the most of her career experience as “former market manager at the financial regulator (Autorité des marchés financiers), combining expertise in these areas that in our university system are found in separate academic departments.”8 And when private interests become the public interest, when the future of French economy is at stake, the crossovers are once again in the forefront, defending the Paris marketplace and its international attractiveness in committees such as the “Paris Europlace” committee that pools public and private energy bringing together businesspeople, corporate lawyers, and high-level civil servants. In a word, today there are “state lawyers” just as in economic activity there are “state CEOs” who maintain multiple symbolic and professional ties with the state.9
Hubs of Public-Private Sociability
The emerging field of public-private influence has also been boosted by an unprecedented proliferation of thank tanks, clubs, and colloquia that posit transcending the public-private divide as the raison d’être of their activity. A dense public-private sociability has traditionally flourished in elite clubs (Cercle interallié, Le Siècle, etc.) and think tanks (Cercle des économistes, Terra Nova, Institut Montaigne, etc.); however, over the past twenty years it has spread through a constellation of sector-specific networks that offer talks, workshops, and other conventions. This nebula came into being first and foremost as a by-product of the activity of law publishing houses and corporate lawyers’ societies (in fiscal law, intellectual property, etc.), which actively promoted these small sectoral public-private gatherings quite early on, establishing annual events such as the Rencontres Lamy devoted to competition law, other talks on fiscal law, or the Club des PPP (public-private partnerships) convention that has been held every year since 2006. Universities followed close behind. Numerous colloquia are organized around the Regulation chair established at Sciences Po Paris in 2000, and later at Université Paris-Dauphine. Last, these budding communities have been bolstered by regulatory agencies and public institutions themselves as they hoped to develop new relationships with market professionals in their respective policy fields. The financial regulator started a series of talks in 1998 (now known as the annual AMF talks), the Competition Policy department of ministry of economy hosts yearly competition law workshops, the Autorité de la concurrence has its European Days; even the Conseil d’État has set up since 2007 a conference series on public economic law.
These clubs, think tanks, and annual conferences have multiplied over the past decade: while they may be constituted around different objects and specialties, they share analogous public-private structures and are often linked together in multiple networks and the mesh of interpersonal relationships. The opening presentation of the 2008 Conseil d’État cycle of talks devoted to public economic law gives a clear idea of the group of participants that the organizers had in mind: the cycle “is aimed at an audience of legal departments of State and local authority government offices, independent administrative authorities, public and private enterprises, professional organizations that represent companies, specialized lawyers and academics, as well as civil servants in charge of competition matters and State subsidies in national and EU administrations, appointees and staff of administrative jurisdictions and the specialized press.”10
This interstitial position at the intersection of the different (public and private, academic and practice-oriented) spheres of law is exactly the same as the one chosen by the Club des Juristes network, created in 2007 as the “premiere French law think tank.” Funded by large companies and law firms, the club has organized or participated ever since in a flurry of events in the field of law (La Nuit de l’éloquence, book awards, the legal publications book fair, etc.) and emerged as a major forum for reflection and development of propositions on French law and French legal professions.11 Under the sign of breaking down barriers between public- and private-sector players, corporate lawyers, professors, and magistrates come together in this context, including leading figures of the corporate bar (Jean-Michel Darrois, Jean Veil, Daniel Soulez-Larivière, etc.), regulators (the presiding judge of the Paris commercial court, the president of the Autorité des marchés financiers), and regulated entities represented by the legal directors of the largest French corporate groups in the field of banking (Société Générale), media (Canal+), defense (Lagardère, Thalès), mass retail (Carrefour), and so forth. This constellation of participants and networks that promote exchange of experience and views across the borders of the public and private spheres is hardly a unified whole; it is traversed by multiple inter- and intraprofessional rivalries that make it impossible to see in this set a “community” or a single group.
The multiplication of these forums, however, is in itself a factor that works to autonomize and reinforce a field of public-private intermediation. These meetings give participants a chance to exchange their views, and also an opportunity to moderate conflict and competition, by identifying forms of agreement on the diagnosis, stakes, and room for possible reform action.12 As participants are invited to update their policy knowledge and shed their prior judgments, the public and private sectors are practically and symbolically brought together. Taking a closer look at one of these venues, the Club des PPP that gathers public and private specialists of these partnerships, it is possible to see the type of exchange that takes place and the representations that are forged therein. This crossroads space is first presented as a place for feedback on previous Public-Private Partnerships’ contracts and acquisition of information on the state of the market.13 Participants take away high-quality information on reforms that are underway, on major pending issues, forthcoming regulatory decisions, and even the leanings of future courts’ case law. Just as attending the annual talks of the French financial regulator (AMF) enables participants to understand that “at the moment the AMF sanctions committee is inclined to seek ‘soft’ agreements to resolve litigation,”14 at the Club des PPP conventions, participants can gauge whether incoming governments intend to cut back on PPP or not. The booths and exhibits of the annual Club meetings highlight “best practices” in various sectors (local transport, energy and waste, roadway infrastructure, sports and cultural facilities, etc.), successes are rewarded (PPP awards), and attendees gather current information on technical trends in law as well as new promising markets such as the ones in Africa. These forums also serve to reassure and recharge the energy of participants, by disseminating new forms of justification in moments of crisis. In 2013, for instance, a year after a more critical Socialist Party rose back to power, the organizers point at the renewed necessity of PPPs: “as public money dries up, cooperation between the public sector and the private sector is more than ever necessary.” Better: it is also stated that “public-private know-how in France is one of our greatest strengths for exports.” This tone prevails, even if, a sign of the times, it is conceded that “a critical and constructive assessment of public procurement tools is necessary,” and “legislative changes to the [PPP] instrument are needed to make it more attractive.”
Further, what makes these venues so dynamic and flourishing are the many transactions and exchanges that they favor across the public-private borders. By attending the PPP convention, in the company of local elected officials from major urban areas, presidents of mayors’ associations, civil servants from the PPP government task force, the director of the national urban renewal state agency (ANRU), heads of PPP departments in large corporations specialized in utilities and infrastructures such as Veolia and Vinci, along with law firms and banks, participants can meet with competitors and clients, project owners and colleagues, and sometimes can take advantage of “stands [that allow] more discreet exchanges between public and private players.”15 It is in these venues, in meetings between directors of administration departments, executives of large companies and law firms, that individual reputations are consolidated. This is a privileged space, where address books are constituted and turned into client portfolio. New opportunities for professional transition can also be found through these contacts and networks, or in the words of one of our respondents, ways “to bridge [one’s] career” toward new institutional horizons, whether public or private. Access to these arenas supposes some form of “election” or cooptation, either by virtue of institutional status, representativeness acquired in professional groups, client portfolio, and so on.
In return participation has an overdrive effect: the visibility gained further reinforces the mobility of those involved, enabling them to accumulate an astonishing range of positions and credentials (professional, editorial, academic, institutional, etc.) and giving shape to the specific form of authority (akin to that of “notables”) operative in this field of public-private encounters. Of course, not all participants become these notables able to concentrate such a portfolio of resources. Full integration in these hybrid venues calls for an “open mind” and a willingness to compromise with those who would ordinarily be opponents. It requires a shared intent in seeking to overcome professional and institutional barriers, and achieve greater openness between the public and private sectors, in a quest for more effective public action. Most often, this is secured by the fact that the selected rarely belong to just one profession or represent the narrow interests of a single group. Their presence in the panels attests to their capacity to transcend the corporatist interests of their original group and to take part in the collective work to define a common ground between public and private players. While those in the private sector make concessions as they recognize the specific features and rationales of public action, public regulators also need to demonstrate their willingness to absorb the logic of business and the values of the private sector.
As a result, the annual talks and conventions are often the theater of convergence of viewpoints between stakeholders, whether regulators or regulated entities, professors or practitioners, corporate lawyers or civil servants. In the species of a pragmatic discussion that purports to be detached from any political ideology or professional corporatist interest, is constituted a body of knowledge and beliefs on the future of public regulation. Here one finds the efficacy that characterizes “neutral venues” as coined by Luc Boltanski and Pierre Bourdieu to describe these reform circles or expert committees intentionally crafted to move beyond partisan politics that turn specific political choices into seemingly apolitical policy proposals.16 While differences and competing views persist, often expressed in euphemisms, a common sense of reform is progressively built up in these spaces, and this is undoubtedly one of the most striking indicators that the field of public-private mediation is gaining in autonomy.
Strikingly enough, the first type of agreement that is delineated in these liminal spaces is the joint recognition that the existence of the public-private divide is an unavoidable framework that must be accepted by all realistic players, even if the exact lines of the divide are to be profoundly redrawn. In the course of these talks and conventions, numerous little rituals and rules of precedence actually mark out the distance to be maintained, and remind all those present of the irrefutable existence of this demarcation line. Although this is indeed the shared framework and the words used are surprisingly unchanged (public, private, public interest, state), the content they refer to has been profoundly redefined. Ultimately a new map is being drawn: the proper dividing line and distribution of roles marks out the domain of the state reduced to its sovereign prerogatives, and the other functions of the state for which public management in its traditional forms are no longer appropriate or sufficient. This “renewed vision of economic regulation”17 assumes that the “blockage” of the “administered economy” must be done away with, in order to take into account “the emergence of new imperatives,” starting with “anchoring [government authorities and entities] in a market economy” and therefore “ensuring greater respect for the economic component of the public interest.”18 Most observers underscore the cumbersome nature of traditional administrative law, equated with a system of privilege that should no longer persist in the relationship between the state and companies. Many decry “the illusion held by government and the administration that they incarnate the public interest, which by definition cannot coincide with private interests.”19 They may also insist on the need to take the “attractiveness of public law” into account, when legal systems are now put in competition.20 All contest that the state is the sole representative of the public interest. “My position is anti-hypocrisy,” says one crossover, an ENA graduate and former minister, “the State is not alone in defending public values” (interview 25, man, ENA, former minister, tax law). These arguments include “integration, in the notion of public interest, of demands for proper market functioning, and in particular for fair competition.” With this new definition, the very notion of public interest takes on a new meaning. In the words of Council of State member Marie-Dominique Hagelsteen, prematurely deceased in 2012 after a career as legal affairs director at Elf, and then president of the Competition Council from 1998 to 2004: “competition policy is meaningless unless it serves the public interest, that is if it extends criteria of efficacy and relevance to a broad set of public policy measures.”21 Thereby, in the course of exchange of views, the denizens of this public-private field have collectively shaped a common sense of state reform that gives a new scope to the public-private joint venture and its specialists, now elevated to the role of leaders of the transition of the supposedly archaic French state into the waters of competitive European markets.
Entrenching the Public-Private Worldview
By many regards, these bold constructions, forged in the heart of the field of public-private influence, are heretical when looked at from the point of view of the traditional canons of French public law doctrine and case law. The very notion of a continuous dialogue and crossover to formulate the public interest, as advocated in the nebula of clubs and colloquia, flatly contradicts the summa divisio of public law and private law. Far from abstract or speculative musings on the theory of the state, these various steps to entrench public-private synergy cut to the social and cognitive base of many professional and institutional identities that are historically tied to the autonomy of the state. Here one follows how the new doctrines of public-private hybridization made their way into the state legal and bureaucratic operating procedures, by virtue of partial homologation in law faculties, government, and courts. Three key entry points have been selected that allow us to assess the propagation of these public-private views into the state: the birth of a branch of law, the public law of business (droit public des affaires), which undermines the traditional scholarly divide; the rise of a figure of public leadership, that of the regulator, that cuts across the political versus bureaucracy demarcating line; and the repositioning of the Conseil d’État at the very core of the emerging French regulatory state.
Blurring the Scholarly Lines
Along the chain of talks, meetings, and colloquia, new knowledge and instruments have emerged, heralding a new brand of law straddling public and private matters—despite doctrinal controversy as to the labels they should receive (droit de la régulation, droit public des affaires, or even droit public du marché). A body of droit public économique has long existed; this subject matter was taught at Sciences Po as early as 1946, by a member of the Conseil d’État. The subject was developed in a noted work on the ordre public économique by professors René Farjat and Berthold Goldman (1963), and was finally included in law schools course load in the 1970s, giving rise to a steady stream of manuals and textbooks. Even then, this discipline gave hints of the first forms of transcending the frontal opposition between public law and private law. It pointed to the use of solutions devised by private players, such as contracts, by public authorities, instead of the traditional unilateral approach. But, as merely a subset of public law, the droit public économique focused essentially on the regimen of public utilities companies and the specific forms of administrative policing of the economy.
As the sphere of state-owned companies shrank and the scope of regulatory agencies grew, new scholarly thinking emerged. Various labels appeared that tried to make sense of the new rapport between the public and the private domains. Interestingly, the denomination, droit public des affaires (public law of business) which still sounded at the time like a terrible oxymoron to the ears of French legal scholars, first emerged from the world of legal practice as the Paris bar created in the late 1980s an Institut de droit public des affaires (IDPA) within its professional training school. Yet, while the founders of this institute had a clear intuition that the tectonic plates of public and private law were shifting at fast pace, none had a clear idea of what it actually entailed:
Lafarge [president of Paris Bar Council in 1987–1988] wanted to break the Paris bar out of its routine, and to affirm that it should see law as a market. At the time, this was a revolutionary attitude: law was a science. And not a market that one developed, where one prospected. The idea of Lafarge was to create institutes to develop certain fields: there were three subjects, public law, information technology and social law…. He needed a name for the institute at Paris 1, so I invented “public business law” because it was a contradiction in terms. I went to see the president and I suggested “public business law.” He said to me “What’s that, public law of business?” and I said “I don’t know,” he replied “Perfect, I’ll buy that.” (interview 6, man, lawyer, public law of business)
For a long time, this denomination of the institute remained an exotic curiosity. At the end of the 1990s, one still found statements that pointed at this “relatively new expression” as “somewhat surprising,” forcing “jurists to make use of their imaginations.”22 This is however also the period when the notion of droit public des affaires makes its way into regular legal chronicles of specialized publishers: led by a little group of public law professors, Lamy publishing house initiated a special series in 1997 that would soon be followed by the Lettre juris-classeur in 1998.23 In parallel, a competing label actually emerges, that of droit de la régulation, which is consecrated by the creation in 2000 of a specialized chair at Sciences Po Paris, at the instigation of a professor of private law, Marie-Anne Frison-Roche. Frison-Roche was very active on the doctrinal front from the outset, and characterized this new field of law as an “autonomous branch” that “was erected above and beyond the distinction between public law and private law.” The new discipline aimed “to emancipate (itself) from the habitual distinctions of the legal system, and in particular the distinctions between public law and private law.” This discipline would “furnish justification for seemingly heretical solutions that are usually criticized on the basis of the old classifications,”24 solutions that arise in the sectors where the central government has lost the ability to act in a regulatory capacity. Beyond the diversity of labels, all these scholarly undertakings converge however in transcending the doctrinal dualism,25 and in seeking to aggregate under a unique scholarly umbrella, the heterogeneous set of policies and procedures related to market regulation and to new modes of state action as an economic agent (public procurement law, law of state holdings and participations, etc.).26 In their attempts to provide a common rationale for this dispersed ensemble, all these scholarly attempts converged in giving EU competition law the defining role—as it actively professes to be indifferent to the public or private nature of institutions and enterprises.27 And while the notion of an ordre public économique, which traditionally justifies the state policing interventions in the economy, would continue to serve as the cornerstone of these scholarly constructions, its essence is fundamentally changed as it now lies, at least in part, in the promotion of competitive markets.28
In parallel to these scholarly undertakings, a figure of public leadership emerged, that of the regulator,29 a broad umbrella that includes many sorts of public managers active in organizing markets: ministers in the economic pole of government, heads of market and competition watchdog authorities, EU commissioners, high-level civil servants at the finance and economy ministry, and even members of Parliament who sit on economic committees (e.g., general rapporteurs of budget legislation), or judges from the economic chambers. By its wide scope, this emerging figure blurs the traditional distribution of tasks at the summit of the state, between political and administrative functions and their respective missions of political orientation and execution. In so doing, it outlines the shape of a new politicoadministrative elite. What initially brought this transformation to light were the large judicial inquiries and trials that emerged from the early 1990s onward in the domain of economic and financial crimes. What prosecutors in financial courts and penal lawyers unearthed in the maelstrom of politicofinancial affairs was the increasing blurring of the political and administrative chains of command in which state-owned companies, ministers, chiefs of staff, top civil servants as well as members of Parliament were involved. It is not the place here to retell the litany of scandals (Crédit Lyonnais, Elf, Clearstream, Bettencourt, Karachi, Cahuzac, Adidas-Tapie, etc.) that have marked the past nearly three decades. Yet, all point out the muddling of the responsibilities of political and administrative officers with a transfer of responsibility to high-level civil servants and ministerial offices, thereby lessening the political accountability of ministers and prime ministers themselves.30 The blossoming of independent regulatory agencies further undermined the separation of the political and the bureaucratic: as they gained power and autonomy within the state, their respective presidents—most often drawn from the ranks of public service—progressively assumed a more visible and openly political role, sometimes standing in direct opposition to government of the time. Taking this increasing overlap of political and administrative functions into account, consulting firms provided new services to their corporate clients beyond the mere lobbying of legislators and ministers (whether French or European) toward a whole range of “regulators” spanning from regulatory agencies to state departments and supreme courts. As seen above, the Paris bar itself took part in this blurring, accepting either political or administrative experience as proof of the eight years of legal activity required to accede to the dispensatory qualification to join the bar offered in the 1991 decree. Likewise, anti-corruption NGOs have adjusted their aim, calling for legislation to sanction conflict of interest that would apply to all types of personnel in the public sector, both political appointees and administrative staff. When a full-fledged public ethics authority, the Haute Autorité pour la transparence de la vie publique, was created in 2013, it itself crafted a new category to define its target: that of dirigeants publics that brought under the same umbrella ministers, members of Parliament, members of the EU Parliament, local elected officials, plus staff of cabinet offices, independent administrative authorities, directors and executives of public entities (public companies, etc.), a total of more than ten thousand people. Justified by a more realistic apprehension of the state governing elites, this new legal category concept further questioned the traditional separation between the political and the bureaucratic realms.31 Exalted by the policies of new public management, targeted by lobbyists’ strategies to gain influence, investigated by judges, overseen by the regulator in charge of public ethics, scrutinized by anti-corruption activists and authorities, the hybrid figure of regulator has thus been progressively consecrated, thereby undermining another cornerstone of French constitutional law, namely the demarcating line between the political and the bureaucratic.
The Conseil d’État’s Invisible Hand
The Conseil d’État is hardly a stranger to the field of public-private intermediation. On the contrary, as a state grand corps populating the top levels of government, the supreme administrative court and the organic intellectual of state’s architecture, the Conseil d’État has played a pivotal role therein. Even though in its annual reports the institution shows concern for a loss of unity in the state, its members have indeed played a key role in the muddling of borderlines, both as the first “professionals of independent regulatory authorities”32 and as one of the main recruitment pools for crossovers moving to the corporate bar—to the point that some members of the corps are worried that the institution might become a “second training ground of the Paris bar.”33
In the postwar period, those leaving the Conseil d’État generally gave their preference to the banking and insurance sectors. Departures were rare, and far less frequent than in the early days of the Third Republic in France: “in the 20 years following the end of WWII, only some 20 members left the Conseil for the private sector.”34 Inversely, the Conseil d’État successfully penetrated the nationalized sector and secured many “private hunting grounds” among public utilities state companies (SNCF, EDF, GDF Suez, RATP, etc.).35 The rate of crossover to the private sector only began to accelerate in the mid-1980s, and then rose exponentially in the 1990s.36 This acceleration closely follows the economic retreat of the state capacities, with the privatization of the public banking and industrial sectors (1986 and 1993) and the growing impact of EU competition policy and control of state aid. While the crossover rate stood at 14 percent for the 1958–1968 period (14 percent of the members of the Conseil d’État had moved at least once to the private sector), it moved to 29 percent for the period 1990–2000.37 While it is difficult to assess the figures accurately (depending on whether one counts the conseillers d’État who retired or those who have resigned from public service), some recent research estimates that 23.5 percent of the corps were employed in the private sector in 2013.38
This apparent contradiction between its role as legal guardian of the unity of the state, and the position of active participant in the growing porosity of public-private borders is revelatory of the Conseil d’État Janus face. This institution is indeed at once the supreme jurisdiction of administrative law, charged with the task of ensuring the legal consistency of the law of the state, and a state grand corps concerned for the professional future of its members and gripped in competition with its historic rivals at the Cour des comptes and the Inspection des finances. Yet, both aspects are two sides of the same medal: the capacity of members of the Conseil d’État to circulate within and outside of the state (and occupy all sorts of leading positions in regulatory agencies, large companies, law firms, etc.) depends essentially on the value and importance granted to administrative law, which constitutes the fundamental competency of the members of this corps. Inversely, the recognized utility of administrative law is inseparably tied to the capacity of its specialists, first among them members of the Conseil d’État, to extend its institutional jurisdiction and disseminate its influence within and outside the state. Thus the European and liberal turn of the state from the mid-1980s onward has posed a threat of obsolescence to administrative law, and directly challenges the capacity of members of the Conseil d’État to move beyond the walls of the Palais-Royal. From this point of view, the impressive aggiornamento of doctrine and jurisprudence it has undertaken in this context, which has profoundly reshaped its relationship to markets and to the public interest, can be analyzed sociologically as work to maintain, and even enlarge, the social validity of administrative law, and by extension the value and currency of the title of conseiller d’État in both the public and private spheres.
The Rise of the Private “Intérêt Général”
The history of the realignment of the Conseil d’État in the context of the rise of the regulatory state remains to be written. There is no doubt however that starting in the 1980s, the Palais-Royal institution faced unprecedented intellectual and political challenges that took administrative law as the ultimate symbol of the state’s resistance to modernization.39 The questioning of the legitimacy of this derogatory branch of law took the form of multiple invitations to open the doors to private law. In the 1990s, voices like that of magistrate Patrice Maynial in his report to the prime minister urged the institution to adapt to the new deal of European law embodied by the single market, and to due process, and to accept the regulatory model of new public management, in lieu of the classical public order rules.40 Faced with the menace of obsolescence of administrative law, the Conseil d’État gradually accepted a radical questioning of its founding principles and pleaded for a progressive revision of its founding principles. As its former head Jean-Marc Sauvé remarks today, “the administrative judge cannot be situated outside of the times, nor feign ignorance of his share of responsibility in the evolution of society.”41
In fact, the Conseil d’État has undertaken over the past two decades a veritable cultural revolution, which can be traced through the successive editions of its annual report that has unceasingly reworked the major concepts of administrative law (intérêt general, ordre public économique, service public), in the light of the challenges outlined above. In this context, two rulings of November 3, 1997, Société Million et Marais, and of March 26, 1999, EDA v. Aéroport de Paris, are significant milestones. Both decisions mark fundamental stages in the redefinition of administrative law, subjecting public entities to competition law, and hence to the competitive market model in the first case, and treating “public authorities in charge of the public domain as an enterprise” in the second case.42 The annual reports issued by the Conseil d’État put this new jurisprudence into systemic form and consolidated the paradigm shift contained in these rulings. Certain formulas contained in the 2002 report on the topic “Public authorities and competition” are still quoted today: “promotion of public service starts with full recognition of the broad framework of free competition in which it is called to act”; “the vast majority of public authorities have recognized that they are anchored in a market economy”; and so on.43 The inflection of direction continued with the “Talks on public economic law” starting in 2007, an event held yearly on topics such as “Public authorities and competition,” “A renewed vision of economic regulation,” “State aid,” and so forth.
In this series of public reports and conferences, an ever greater distance from the old administration model is established,44 and in correlation a transformation of the essential concepts of administrative law. This is in particular the case for the notion of the “intérêt général,” the traditional cornerstone of administrative law, that the Conseil d’État undertook to actively redefine, shaping a new meaning that some observers have called “neomodern.” The days when it could be written that “the definition and pursuit of the intérêt général is a State monopoly”45 are now long past. While the Conseil d’État still sees this notion as the fundamental pillar of the legitimacy of administrative action, it is no longer an overarching top-down construction. Better yet, a private intérêt général has come to light, equated with the new public welfare now seen in proper competitive functioning of markets.46 A breach had been opened early on when the Conseil d’État conceded, in its Ville de Sochaux ruling in June 1971, that the intérêt général could be obtained by satisfaction of private interests, in this case those of the large car company Peugeot. But it was with new European theories of competition that this redefinition of the notion truly took shape. As the head of the Conseil d’État readily recognizes, the Palais-Royal institution embraced over just a few years the whole “market competition” paradigm that to a large degree had been formally stated at the European Union level. “Administrative judges have, step by step, adopted most of the major theories of competition law in their arguments. One can refer to the theory of essential facilities, for instance or to that of automatic abuse of dominant position.”47 This is the path followed by the Conseil d’État in its rulings in the Million et Marais case in 1997 and the Sarl Somatour case in 2002, erecting free competition as one essential component of the intérêt général. This new conception of the public interest is not different, exterior, or an alternative to that of competitive market. On the contrary, it is defined as closely aligned with it, intimately tied to its intrinsic requirements and needs. As competitive markets came to dominate as the new normative paradigm,48 the Conseil d’État was drawn into a profound revision of the founding precepts of administrative law. Donning the garb of theoreticians of free competition and new forms of public-private competition, the conseillers d’État brought new validity to a body of knowledge threatened by the attrition of the public sphere and the ascendancy of the private management model. By contributing to a relative desacralization of public entities, by dismantling some of the legal and regulatory barriers that held the private sector at bay, by providing full recognition to the competition paradigm at the core of the intérêt général,49 they also created the conditions making it possible to give new value to the title and experience of administrative magistrate in the emerging regulatory state (as well as in its private sector supporting groups).
Professionals in Regulatory Agencies
It would be a mistake, however, to see this cultural revolution at the Conseil d’État as merely a process of adaptation to the market economy. It must also be understood in relation to the realignment of the Palais-Royal institution at the heart of the emerging regulatory state. It should be noted that starting in the 1980s and becoming more pronounced in the 1990s, there was a move to reorganize the legal functions of the state, with the Conseil d’État as one of the prime drivers. Its members were the standard bearers of a call for legal simplification and rationalization of administration50, and thus played a key role in the emergence of legal affairs directorates in government ministries,51 in which hitherto scattered legal and litigation offices were merged. This movement was engaged at the defense, education and research, agriculture, and foreign affairs ministries.52 It was especially strong at the ministry of the economy, where a legal affairs directorate was created in 1998, marking a brand-new interest in legal regulation of economic matters. The concentration of legal activities within ministries ultimately put the Conseil d’État at the heart of the new state legal function, and made its members the natural titular agents for these new positions.
A similar repositioning is also found in the role of the Conseil in the development of regulatory agencies. The proliferation of so-called independent administrative authorities in the state apparatus has multiplied the sources of public regulation, and the Conseil could not remain indifferent to this development. With its role as guardian of state unity at heart, the Conseil early on issued warnings on the risk of a dangerous drift.53 It suggested rationalizing agencies’ legal regime across diverse sectors of activity, joined in this effort by the Cour des comptes, which for its part was naturally worried about the risk of disorder in accounting practices. Following its words with action, the Conseil d’État built up a position as safety barrier to counter the proliferation of statutory acts creating regulatory agencies that were not always clearly useful or robust, in the eyes of the legislators themselves. In jurisprudence elaborated from 1981 onward, it qualified the action of these agencies as administrative in nature, and not grounded in private law. From the outset, it placed most of the agencies within the purview of administrative law (unless expressly stipulated otherwise by statutes, as for the Autorité de la concurrence). In so doing, the Conseil gave itself the duty to ensure jurisdictional oversight of agencies that were steadily extending the scope of their regulatory intervention in the private sector of the economy.
As it was progressively expanding its (legal) control over the archipelago of regulatory agencies, the Conseil moved toward a softer stance, even singing the praises of these agencies:
the creation of independent administrative authorities is undeniably a stimulant for the apparatus of the State as a whole: it forces the administration to compare the approaches of public and private law; it brings people from different backgrounds together to work in collegial bodies. It can help attenuate the reciprocal noncomprehension between the public and private sectors. Last, it enhances the necessary updating of general thinking on the notion of public mediation in its broadest sense, that is to say on the characteristics of the intermediate bodies to which the representatives of national sovereignty can legitimately delegate the tasks and procedures of regulation of civil society.54
As it posed itself as the ultimate guarantor of the honor of a state that would lose face if it were torn apart by the centrifugal forces of the proliferating agencies, the Conseil d’État progressively “rewrote the grand narrative of the State,”55 firmly consolidating its position at the core of the regulatory turn of the state. Underscoring “the risks of rendering these agencies subservient to operations in the sector,”56 and the fact that stakeholders are less able to resist the pressure of private interests, the Conseil enshrines the grands corps as the best guardians of the independence of regulatory agencies. As stated Jean-Marc Sauvé, at the time head of the institution: “the best way to prevent the risk [of conflict of interest or penal infraction] is clearly to delve into the pool of the highest jurisdictions”57 when it comes to recruit regulators. These words had weight, it would seem, judging by the fact that the grands corps have indeed emerged as the most natural recruitment pool for these new institutions, and today are seen as “the most natural agencies’ professionals.”58 The figures are edifying: among the 544 appointees sitting on the collegial boards of these institutions, 167 come from the Conseil d’État, the Cour des comptes and the judicial body, and out of 40 presidents, 24 are members of these three groups. In addition to occupying a high proportion of agencies’ board seats and presidencies, members of the Conseil d’État also contribute to the daily work of these agencies through temporary assignments (sometimes called “ménages” or “side gigs”) as rapporteur or counselor to these authorities.
This pivotal position within the very heart of these agencies is of substantial importance, considering that these authorities are frontier institutions on the border between the public and the private. A stint in one of these agencies is an experience that familiarizes the participants with the exigencies of market professionals and inculcates the utility of public-private partnerships; and it has strong currency in the private sector, especially for those who hold key positions such as secretary general, legal affairs officer, or collegial board member.
These authorities often serve as a gateway to the private sector and to a more traditional transition to major listed corporations: 17 percent of crossovers in our sample had worked in one or another of these agencies, such as one former director general and one rapporteur of the Autorité de la concurrence, both members of the Conseil d’État, who went on to join corporate law firms after their tenure on the side of the regulator. Furthermore, the agencies provide an option (not much used for the moment) for top civil servants to return to state employ after trying their luck in the corporate law bar. The hybrid public-private identity that is claimed by these institutions implies not only that they recruit lawyers, legal advisers, and other profiles from the private sector, it also creates the possibility of a return to the public sector for crossovers, a so-called retro-pantouflage that was previously not an option. The passage to the private sector that had been deemed irreversible, would appear to be less so, thanks to the opening up of these porous spaces that in part escape the legal and financial constraints of traditional public service.
This explains the paradox formulated by a former deputy secretary general at the Conseil, now chief of staff of the prime minister, who underscores that “the Conseil d’État very rapidly imposed its presence in the independent administrative authorities, even as it regularly criticized their proliferation.”59 In a context that saw its reach under threat due to the deregulation turn of policies, the Conseil d’État wove a new fabric of relations along the fringes of the economy, government administration, and politics that has breathed new life into a corps that appeared to be in danger of decline. This transformation went hand in hand with a vast revision of administrative law that led, in successive steps, to an in-depth reframing of its founding concepts, and to a process of normalization with regard to the precepts of the market economy and free competition. In this way, the Conseil variously scrambled and rewrote the code of public-private interaction, and played alternating roles as principled protector of the honor of the state, so that it would not “lose face,”60 and as concrete operator of its regulatory and liberal evolution. The Conseil d’État was thus solidly ensconced in the midst of the dynamic forces at work to transform the public-private divide.
Overall, as might be clear from this chapter, the field of public-private interaction is much more than just simply a space for crossovers and circulation. Through its own gravitational force, it has a powerful transformative effect on key notions of the state, as well as on its circuit of legitimacy. It is undoubtedly true that the players in this field are not always strong enough to weigh directly on politics and impose their legislative agenda.61 But they perturb the conventional cardinal points of the state compass and redefine from inside its elites as well as core categories. As the result, one cannot dispense with an inquiry into the political implications and consequences for democracy that stem from this fast-expanding field of public-private intermediation.
1.Stephen Barley, “Building an Institutional Field to Corral a Government.”
3.Olivier Debouzy, “Lobbying: The French Way,” Notes de l’Ifri 54 (2003): 8.
4.Pierre Bourdieu, The State Nobility: Elite Schools in the Field of Power (Stanford, CA: Stanford University Press, 1996).
5.Cour des comptes, Le Recours par l’État aux conseils extérieurs, 30–31.
6.Debouzy, “Lobbying: The French Way.”
7.Isabelle Lefort, “Il faut un cursus deux fois supérieur à celui d’un homme pour réussir. Entretien avec Anne Maréchal,” La Tribune, June 10, 2011.
8.Frédérique Garrouste, “Anne Maréchal conjugue le droit public à la Bourse chez DLA Piper,” L’Agefi Hebdo, July 7, 2011.
9.Dudouet and Grémont, “Les grands patrons et l’État en France, 1981–2007.”
11.The Club des juristes claims to have exerted significant influence in a number of areas: reform of the code of criminal procedure; introduction of the prior constitutional question before the Conseil constitutionnel (QPC); the 2009 Darrois Report on the future of legal professions commissioned by Nicolas Sarkozy; debate on the issue of “environmental harm.” Laurence Neuer, “Think tank ou la fabrique d’idées ‘prêt-à-réformer,’ ” La Semaine juridique 44–45 (October 28, 2013): 1996–99.
12.For a portrait of another similar club, see Julie Gervais, “Les sommets très privés de l’État: Le ‘Club des acteurs de la modernisation’ et l’hybridation des élites,” Actes de la recherche en sciences sociales 194 (2012): 4–21.
13.Club des Partenariats public-privé, “Lettre des 7e rencontres internationales des PPP,” 2013 (on file with the author).
14.“Les Entretiens de l’AMF,” Lettre des juristes d’affaires, October 6, 2008.
15.Club des Partenariats public-privé, “Lettre des 7e rencontres internationales des PPP.”
16.Luc Boltanski and Pierre Bourdieu, “La production de l’idéologie dominante,” Actes de la recherche en sciences sociales 2 (1976): 3–73.
17.JeanMarc Sauvé, “Corriger, équilibrer, orienter: Une vision renouvelée de la régulation économique,” École nationale d’administration, September 24, 2013, http://www.conseil-etat.fr/. M. Sauvé is a former vice president of the Council of State.
19.Debouzy, “Lobbying: The French Way.”
20.Laurent Deruy, “Adapter le droit administratif français pour le rendre plus attractif,” Semaine juridique, April 16, 2007, 2095.
21.Marie-Dominique Hagelsteen, quoted by Sauvé, “Corriger, équilibrer, orienter: Une vision renouvelée de la régulation économique,” 6.
22.Claude Deves, “Droit public des affaires et collectivités locales,” Les Petites Affiches 75 (April 15, 1999): 35.
23.Other transversal legal domains emerged at the same time like penal business law (droit pénal des affaires) which began to come into its own as political corruption cases emerged and new investigation units assigned to financial crime were created within prosecutors’ offices.
24.See for example the dispute between Marie-Anne Frison-Roche, “Droit et économie de la régulation,” in Les Risques de regulation (Paris: Dalloz, 2001), 610, and Laurence Boy, “Réflexion sur le ‘droit de la régulation,’ ” Recueil Dalloz, 2001, 3031; and Raymond Martin, “Le droit en branches,” Recueil Dalloz, 2002, 1703.
25.Didier Truchet, “La distinction du droit public et du droit privé dans le droit économique,” in The Public Law/Private Law Divide: Une entente assez cordiale?, ed. Mark Freedland and Jean-Bernard Auby (Oxford: Hart, 2006), 49–59.
26.It was not until 2009, however, that this subject was enshrined in law textbooks, with the publication of a volume on Droit public des affaires by Sophie Nicinski (Paris: Lextenso, 2009).
27.Maryvonne Hecquard-Theron, “La notion d’État en droit communautaire,” Revue trimestrielle de droit européen 26, no. 4 (1990): 693–711.
28.Initially taught at Sciences Po Paris and to some extent in business schools that had a long history of courses in fiscal law and regulatory law, these new disciplines gradually found a place in the heart of the curriculum offered in university law faculties. See in particular Émilie Biland, “Quand les managers mettent la robe: Les grandes écoles de commerce sur le marché de la formation juridique,” Droit et société 83, no. 1 (2013): 49–65.
29.See the many publications connected to the so-called Regulation chair at Sciences Po Paris in the first decade of the twenty-first century.
30.The growing confusion surrounding political and administrative accountability was described by Olivier Beaud, Le Sang contaminé: Essai critique sur la criminalisation de la responsabilité des gouvernants (Paris: Presses Universitaires de France, 1999).
31.As stated in the High Authority’s annual report: “The number of elected officials and titular civil servants required to submit a statement has grown considerably, from roughly 3,500 individuals to now 8,000 people subject to this procedure. For the most part, these are elected officials (notably mayors and presiding officers of groups of municipalities of over 20,000 population); 1,600 titular employees in public positions (government appointees, cabinet staff, and 260 staff at independent administrative authorities); and 2,600 directors of public establishments and enterprises owned by the State or local authorities.” Haute Autorité pour la transparence de la vie publique, Renouer la confiance: Rapport annuel (Paris: La Documentation française, 2015), 16.
32.Jacques Mézard, Un État dans l’État: Canaliser la prolifération des autorités administratives indépendantes pour mieux les contrôler; Rapport du Sénat (Paris: Sénat, 2015).
33.The former deputy secretary general of the Conseil d’État, Benoît Ribadeau Dumas, indicates that “the institution frowns upon this trend, at least since it has become too pronounced, and has tried to halt it, unsuccessfully.” Benoît Ribadeau Dumas, “Les carrières dans et hors le Conseil d’État,” Pouvoirs 123 (2007): 73–88.
34.Kessler, “L’évasion des membres du Conseil d’État vers le secteur privé.”
35.While Bruno Latour’s ethnography of the Conseil d’État makes a point not to position it in the French field of power, he does provide interesting data on the amount and the variety of political, bureaucratic, economic experiences that its members acquire outside of the supreme administrative court: Bruno Latour, The Making of Law: An Ethnography of the Conseil d’État (Cambridge: Polity, 2009).
36.Luc Rouban, “Le Conseil d’État, 1958–2008: Sociologie d’un grand corps,” Cahiers du Cevipof 49 (2008): 82.
37.In the course of the same period, this crossover rate remained stable, at a significantly higher level, for the Inspectorate General of Finances: ibid.
38.Catherine Teitgen-Colly, “Déontologie et pantouflage dans la haute fonction publique: L’exemple du Conseil d’État,” in Mélanges en l’honneur de Professeur Gérard Marcou (Paris: IRJS, 2017).
39.Françoise Dubois, Maurice Enguéléguélé, and Marc Loiselle, “La contestation du droit administratif dans le champ intellectuel et politique,” in Le Droit administratif en mutation (Paris: Presses Universitaires de France, 1993), 149–74.
40.Patrice Maynial, Le Droit du côté de la vie: Réflexions sur la fonction juridique de l’État; Rapport au Premier ministre (Paris: La Documentation française, 1996), 73.
42.See the enlightening remarks by Jacques Caillosse on the impact of these two rulings: “Personnes publiques et concurrence: Quels enjeux théoriques?,” Actualité juridique: Droit administrative 14 (2016): 761.
43.Conseil d’État, Collectivités publiques et concurrence: Rapport public (Paris: La Documentation française, 2002).
44.See the contributions gathered in Pascal Mbongo and Olivier Renaudie, eds., Le rapport public annuel du Conseil d’État: Entre science du droit et discours institutionnel (Paris: Cujas, 2010), 125–44.
45.Didier Truchet, La Fonction de l’intérêt général dans la jurisprudence du Conseil d’État (Paris: LGDJ, 1977), 19.
46.See Guylain Clamour, Intérêt général et concurrence: Essai sur la pérennité du droit public en économie de marché (Paris: Dalloz, 2006).
48.See Nicolas Jabko, Playing the Market: A Political Strategy for Uniting Europe, 1985–2005 (Ithaca, NY: Cornell University Press, 2006).
49.Clamour, Intérêt général et concurrence, 234.
50.On the central role of the Conseil d’État in the emergence of the criticism of “normative inflation,” and the related call for more sécurité juridique, see Rachel Vanneuville, “Les enjeux politico-juridiques des discours sur l’inflation normative,” Parlement(s) 11 (2009): 80–91.
51.The organizational reform of administrative structures necessitated a decree taken en Conseil d’État (meaning that an Opinion of the Conseil d’État is mandatory), henceforth seen as the chief architect of the central government administration. See Jacques Chevallier, “Le Conseil d’État, au cœur de l’État,” Pouvoirs 123 (2007): 5–17.
52.See Colera, Les services juridiques des administrations.
53.Conseil d’État, Les autorités administratives indépendantes: Rapport annuel (Paris: La Documentation française, 2001).
55.On this point, see Jacques Caillosse, “Le discours de la réforme administrative,” in Le rapport public annuel du Conseil d’État: Entre science du droit et discours institutionnel, ed. Pascal Mbongo and Olivier Renaudie (Paris: Cujas, 2010), 125–44.
56.Rapport du Conseil d’État, 2001, quoted in Françoise Dreyfus, “Les autorités administratives indépendantes: De l’intérêt général à celui des grands corps,” in Perspectives du droit public: Mélanges offerts à Jean-Claude Hélin (Paris: Litec, 2004), 219–27.
57.Jean-Marc Sauvé, head of the Conseil d’État from 2006 to 2018, quoted in the Senate report by Mézard, Un État dans l’État, 48.
59.Ribadeau Dumas, “Les carrières dans et hors le Conseil d’État,” 84.
60.Pierre Bourdieu, On the State: Lectures at the Collège de France (Cambridge: Polity, 2015).
61.See, however, the afterword added to this edition of the book, which analyzes Macron’s ascendency to power as the formal entry into politics of these new public-private elites.