The defense of citizen's rights and good administration by the catalan ombudsman in the private exercise of public functions

Concern for the protection of citizens’ rights in their interaction with private actors exercising public functions is extending internationally. With respect to the role of administrative law and Ombudsmen, this concept was confirmed, to cite one example, with the celebration of the World Conference of the International Ombudsman Institute (IOI) in June 2009, which brought together 340 delegates and observers from over 90 countries, with speeches delivered by former Secretary General of the United Nations, Kofi A. Annan, and the United Nations High Commissioner for Human Rights. During this conference, a specific discussion panel studied the role of Ombudsmen outside the public sector. During the discussion, it was stated that the ability of administrative law to respond to the exercise of public power by organizations not integrated in the public sector would depend largely on its ability to overcome the limitations imposed on it by the public private dichotomy.

A specific example of the extension of public law to private actors– that we do not have to circumscribe only to regulation of judicial supervision– occurs in the Spanish legal case, specifically in the regulation of the Catalan ombudsman’s role. In the slow progression of limiting private arbitrary decisions in the exercise of public powers and guiding private actors toward good administration, mention must be made of articles 30 and 78.1 of the 2006 Statute of Autonomy of Catalonia (SAC) and the Catalan Ombudsman Act that implements it.

The SAC establishes the right to good administration, following the path of article 41 of the Charter of Fundamental Rights of the European Union (a right also recognized by the case law of the Spanish Supreme Court that finds it implicitly at the Spanish Constitution) .

Article 30 of the SAC states the following:

“Rights of access to public services and good administration

1. Each individual has the right of equal access to public and economic services of general interest. Public Administration bodies shall set the access conditions and quality standards for these services, regardless of the system for their provision.

2. Each individual has the right to be treated impartially and objectively by the public authorities of Catalonia in matters affecting them, and that the action of the public authorities be proportional to the ends justifying it.

3. The law shall regulate the conditions for exercise and ensuring the rights referred to in Sections 1 and 2 above, and shall determine the circumstances in which Catalan Public Administration bodies and any public services dependent on them shall adopt a charter of user rights and service providers obligations.”

Article 78.1 of the SAC states the following:

“The Catalan Ombudsman has the function of protecting and defending the rights and freedoms recognised in the Constitution and in this Statute. To this end, he or she oversees, exclusively, the activity of the Administration of the Generalitat, that of any public or private related bodies that are associated with or answerable to it, that of private companies that manage public services or that carry out activities of general or universal interest, or equivalent activities in a publicly-subsidised or indirect way, and that of other persons with a contractual relationship with the Administration of the Generalitat and with the public bodies which are answerable to it. He or she also oversees the activity of the local administration in Catalonia and that of the private or public bodies which are associated with or answerable to it.”

Article 26 of the Catalan Ombudsman Act of 2009 states that:

“Article 26

Parties subject to supervision

In the exercise of its competencies, the Catalan Ombudsman institution shall supervise the activity of the following parties:

(…)

d) Private companies that manage public services or that carry out, through agreements or concessions, activities of general or universal interest or their equivalent, and other persons contractually linked with the administration of the Autonomous Government of Catalonia or with the public bodies that depend on it, in the terms outlined in article 78.1 of the Statute.(…)”

The reading of the transcribed precept reveals slight variations in the Law with respect to the SAC, and also profuse use of legal terminology (public services, agreement, concession, activities of general or universal interest) and a final clause that overcomes formalities and rigidities to refer to “equivalent activities” (SAC) or “equivalent” (Ombudsman Act).

It is worth looking further into some of these matters.

1. In the realm of service provision, the SAC and the Catalan Ombudsman Act refer to “private companies that manage public services”. The reference to the cases of indirect management of public services by contract, now included in the 2017 Spanish Public Sector Contracts Act, seems clear.

2. Furthermore, reference is also made to private companies that carry out activities of general or universal interest and do so through agreements or concessions. As for the activities of general interest, from the literality of the precept, it can apparently be inferred that any private company performing an activity with any degree of general interest could enter within the Catalan Ombudsman’s supervisory remit, meaning everything from small companies receiving a subsidy to the so-called improper public services, or, activity that is merely private but that, given its relevance for the general interest, is subjected to a unique legal framework, in that it is intensely subjected to public intervention, as has traditionally been the case of taxis and pharmacy services, for example.

This being granted, from a systematic and teleological interpretation of the precept, the adjective that accompanies the type of activity (“or universal”) and the fact that supervision makes sense to “protect and defend the rights and freedoms recognised in the Constitution and in this Statute”, make us believe that perhaps lawmakers were thinking more in terms of the so-called services of general (economic) interest, which would seem more reasonable. According to the proposed interpretation, these activities would be under the supervision of the Catalan Ombudsman.

That said, the fact that the Catalan Ombudsman supervises the activities of private companies when their activity is qualified as a service of general (economic) interest does not mean that the Catalan Ombudsman has to supervise every activity of private companies and all of their relations with their customers. The raison d’être of public law and Ombudsman supervision - that is, as Article 78 of the SAC states, to “protect and defend the rights and freedoms recognized by the Constitution and this Statute” - mean that the Catalan Ombudsman must be limited to supervising private decisions and actions that make for an exercise of power which can damage the rights of citizens.

Decisions such as admission to use of service, suspension or termination of supply, denial of the provision of public and/or universal service obligations are areas in which there is an exercise by private actors of public functions, and in which supervision acquires its meaning as a guarantee for the user/citizen and respect for the general principles that regulate the provision of public services and services of general interest (continuity, changeability, equality, quality and affordability).

The Catalan Ombudsman can play an interesting role in ensuring service continuity, the violation of which could make for impingement of citizens’ constitutional and statutory rights; changeability and compliance with the obligations of quality, security and public service in sectors such as electricity, the post or telecommunications; for the absence of discriminations; and also when supervising the compliance with the progress clause that guarantees citizens provision in suitable conditions; and in controlling cases of affordability indicated in the law, such as maximum tariffs or prices or even free services such as those established in the General Telecommunications Act, regarding the obligation to allow calls to emergency numbers not entitled to economic consideration of any kind which must be assumed by the operators providing electronic communication services to the public, as well as those operating public electronic communications networks.

Nonetheless, it is not up to the Catalan Ombudsman to supervise mere conflicts that could arise between a consumer and a private company, in which consumer rights legislation and the contract between the parties grant sufficient protection and there is no exercise of authority by the private actor.

3. Furthermore, supervision extending not only to services of general (economic) interest formally declared as such, but also to other “activities of general interest”, in the literal terms of the SAC and the Catalan ombudsman Act, should not be ruled out. Obviously, general services, in the legal technical meaning, are “activities of general interest”. But these activities are not limited to those services, as there are private activities of general interest that technically are not configured as services of general interest, but that could fit within this regulatory clause. Here note should be taken of the aforementioned improper public services, as they are called by the Spanish legal doctrine. Along these lines, reflection should begin on activities with an extraordinary impact on general interest and with a broad administrative regulation which, indubitably, are private activities of general interest, if not services of general (economic) interest, as could be the case of private banking institutions.

The final reference by the SAC and the act to “equivalent activities” leads us to think of the real teleological reason that these precepts exist: that the Catalan Ombudsman’s supervision to guarantee citizen’s rights be performed whenever there is a transfer of public functions for them to be exercised by private actors, whatever the denomination of this act or title of the transfer.

This final clause would allow the Catalan Ombudsman to protect the rights of citizens before private collaborating entities, developing functions of inspection, as are referred to in the Catalan Act 26/2010 (Title VIII, “Inspection and supervision authorities”, chapter II, articles 91-101), and that would not have fit in any of the prior expressions.

4. Last, the specification of the Law that the provision of these services be carried out through “agreement or concession” does not seem very appropriate, nor does it have its origin in the SAC, which only alludes to the performance of equivalent activities in “an agreed or indirect fashion”, which is quite different from the legal text. As is known, public regulation of private companies operating in sectors declared to be of general economic interest is carried out through, among other regulatory techniques, authorizations as is the case of telecommunications, to which the Law does not allude. Therefore, Article 26 of the Catalan Ombudsman Act must be interpreted in accordance with article 78.1 of the SAC to avoid any restrictive interpretation that may contradict it.

To sum up, we have seen that, according to the Law, the Catalan Ombudsman has to actually perform a direct supervision of the good administration of private companies exercising public functions to protect citizens ‘rights. Obviously, we have not been able here of explaining the details of the mentioned regulation, which have been analyzed by the own Ombudsman through a report written by several specialists, available on line.

In any case, a reading of the reports presented by the Catalan Ombudsman to the Parliament of Catalonia since the approval of the SAC demonstrates that, in the realm of consumer affairs, actions having to do with privatized public services or services of general interest show that the matter is far from being merely theoretical. Just considering years 2007-2011, for example, 237 such interventions were made in 2007 (out of a total of 461 developed by the Catalan Ombudsman); 202 interventions were made in 2008 (out of a total of 471); 199 in 2009 (of 381); 157 in 2010 (of 419), and 157 in 2011 (of 391). The Catalan Ombudsman has also written specific reports on the right to basic utilities (2014) or the right to electricity supplies (2019) on the basis of the articles we have briefly commented here that allow this institution to supervise private companies developing public functions.

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