PUBLIC INTEREST, PUBLIC SERVICES AND CONTRACTS AS THE SUBSTANCE OF PUBLIC ADMINISTRATION
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Abstract
Public administration does not include provision of public services but only their administration, i.e. all that precedes the conclusion of a public service contract is regulated by administrative law and once the contract is concluded the legal relationships between the parties are regulated by civil law in Lithuania. It is one of the reasons why the institute of administrative contract is not widely recognized in Lithuania, although the Supreme Administrative Court has recognized this institute in several cases. The author also considers why provision of public services in Lithuania is not equated with administrative legal relations and not considered as public administration but as a matter of civil law.
Thus, the author analysed the institute of public contract in Lithuania and has proved that these contracts are administrative. The latter statement is based on a series of arguments which prove that publicly offered contracts are not based on the usual principles of contract law (freedom of contract, equality of parties) and are intended to serve the public interest.
The research is based on the case law of France, Germany and the Czech Republic which shows the notion of public administration in these countries and diversity of administrative contracts. Noteworthy, in contrast to Lithuania, in these states the institute of administrative contracts is regulated by the laws which regulate public administration (Germany, the Czech Republic) and other laws (France).
The starting point of the article is a public interest report given in 1999 by the French State Council. Two concepts of public interest are crystalized in this report – utilitarian and voluntarist. It states that in a country where a separate system of administrative courts is established, public interest must be at the centre of politics, laws, administrative acts, decisions of administrative courts. Thus, in such a country, the functional concept of public administration shall not be unduly narrowed. The researcher seeks to find an answer which concept of public interest the political institutions of Lithuania follow, since there is a tendency to delegate regular state functions to the actors of private sector or to state bodies with a different legal status.
Thus, the author analysed the institute of public contract in Lithuania and has proved that these contracts are administrative. The latter statement is based on a series of arguments which prove that publicly offered contracts are not based on the usual principles of contract law (freedom of contract, equality of parties) and are intended to serve the public interest.
The research is based on the case law of France, Germany and the Czech Republic which shows the notion of public administration in these countries and diversity of administrative contracts. Noteworthy, in contrast to Lithuania, in these states the institute of administrative contracts is regulated by the laws which regulate public administration (Germany, the Czech Republic) and other laws (France).
The starting point of the article is a public interest report given in 1999 by the French State Council. Two concepts of public interest are crystalized in this report – utilitarian and voluntarist. It states that in a country where a separate system of administrative courts is established, public interest must be at the centre of politics, laws, administrative acts, decisions of administrative courts. Thus, in such a country, the functional concept of public administration shall not be unduly narrowed. The researcher seeks to find an answer which concept of public interest the political institutions of Lithuania follow, since there is a tendency to delegate regular state functions to the actors of private sector or to state bodies with a different legal status.
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Section
Articles
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
