Defining Publicness in Service Contracts. Adding Colour to the Grey

Abstract

The objective of this paper is to identify the circumstances under which general principles of public administrative law apply to services delivered by private entities under service contracts with public authorities. Relying on a functional approach to public administration, it builds on the notion that public administration in the substantive sense is the key to the applicability of general principles of administrative law in service contract situations. It seeks criteria usable to define a function as “public” and so determine the applicability of such principles in the relations between the user and a private body carrying out services under a service contract. Icelandic law is used as test case, though guidance is sought from other sources and theories. Certain factors are deduced from judgements of the Icelandic Supreme Court, opinions of the Parliamentary Ombudsman and from theories on private liability for human rights violations. Together these form the grounds of a general holistic threephased test, the initial points, the material points and the supporting points, for the definition of “publicness”. Application of the test may help clarify the “grey zone” between public and private law.