The question is at the heart of all debates of privatization

The Government thought to do well. By now a rate regulated gas in the gas of France privatization Bill, he attempted to solve a political problem: to accept the merger Suez-gas of France to the French who feared a consequent increase in the price of gas. But there, in so doing, created a serious legal problem of compliance of the project to the Constitution.

In question, a subtle paragraph of the preamble to the 1946 Constitution which provides that "any property, any company, including the operation has or acquires the character of a national public service or a de facto monopoly, Editor's note must become the property of the community." Clearly, once a company is in charge of a public service, it must belong to the State. Therefore, in the spirit of the Constitution, serving the general interest which requires the controlling interest of the State, and non-participation of the State, which would create a public service. The question is at the heart of all debates of privatization. Oddly, this time, parliamentarians focused on article 10 of the draft which reduces the participation of the State in the capital of the gas are passed next.

France gas, the participation of the State must be reduced "to more than a third". This fact alone is therefore not enough to no longer make gas of France a public service. The Constitutional Council has been repeatedly the opportunity to define the notion of public service (): a company is a public service within the meaning of paragraph 9 of the preamble to the 1946, therefore that it is in a situation of monopoly or that it is subject, she and she alone, to general public service missions.

Widely open debate

"The fact that an activity was erected in public by the legislature that the Constitution required him does not preclude that this activity is, as the company who is responsible, subject to a transfer to the private sector", the Constitutional Council, in 1986, decided during the privatizations of the Balladur Government. Libre free so the State to privatize, on condition that it withdraws the company in question the character of national public service. From July 1, 2007, gas of France no longer in a situation of monopoly, Community directive requires, for the supply of gas to households. However, the State, by imposing on this "formula gas of new France", born of the merger with Suez, pressures higher than those of its competitors and more particularly a regulated rate could make ironing the Habs operator under the banner of the "public service". Must be that these constraints remain specific to gas of France and to carry out a decisive competition. If that were the case, back to square one: it would be impossible for the State to go down in the capital of the gas below 50. It would be therefore in paragraph 9.

The debate is largely open among the constitutional lawyers, even if the State Council, in its opinion to the Government, had tried to remove any ambiguity. The fact that with France Telecom privatization in 2003, and that corporations motorway last year, the Government has transferred to the private sector to the activities of the public sector claiming high and strong that companies would retain a "public service missions", explains nothing. None of these cases did, indeed, referred to the Constitutional Council. There is, however, this time of high chance that it does not escape analysis.