An expanding frontier of administrative law: the public life of private actors (a functional approach)

Abstract:

This exploratory article proposes to extend the reach of administrative law, in the form of public law principles, to private actors performing public services and regulatory activities without delegated executive power. These general principles seek to govern the relationship between these private actors and third parties.

The administrative law-like principles to be applied by private actors vary from case to case. Some of them are transparency, impartiality, expertise, representativeness, reason giving, proportionality or anti-discrimination. In other areas, requirements of due process are imposed and arbitrary and unreasonable conduct is not permitted.

To understand the reasons for the application of public law principles to those private bodies it should be borne in mind that non-state actors affect members of the public to a significant degree, and that public authorities and the private sector share responsibilities in such areas because they do not work in isolation.

Ultimately, if public authorities are subject to legal principles inherent to public services and regulatory activities, it may be expected that private bodies act before third parties in a comparable, equivalent and compatible manner to that of the public authorities, in that all of them are part of a more holistic whole.

This expansion of principles has two immediate consequences: (1) public law principles complement private law as long as private bodies perform these activities, and (2) a new layer of administrative law scholarship becomes functional: it is the nature of the activity being exercised and not the actor that determines for the application of these principles.