The General Clause of Competences of the Local Authorities in France and Possible Applications in Thai Legal System

Abstract

This academic article has the objective to study the principle of the General Clause of Competences of the local authorities in France. This article was committed by using the literature review method from both primary legal documents such as the French Constitution, legal legislations and relative regulations, and secondary legal documents such as court’s decisions, legal textbooks and official reports provided by administrative and international authorities to analyze the importance of the mentioned principle to the French local authorities. This article also offers suggestions for applying the mentioned principle to the Thai legal system. The results of the study found that the French local authorities are, under the principle of the General Clause of Competences, legally able to provide public services within their competent areas even if there is no evident legal or regulatory stipulation affirming such powers. This makes, in consequence, the provision of local-level public services more suitable for the needs of the local population. Under the nowadays applicable legal stipulations, the General Clause of Competences has currently been stipulated only for the “Commune”. In addition, the Conseil d’État judges in many cases jurisprudence fixing the condition of the application of such principle. The application must serve and respect the needs of the “Local Public Interest”, impartiality and the industrial and commercial liberties. The use of the General Clause of Competences must not interfere with the powers of other public entities as well. In the case of Thailand, traces of the consideration of the General Clause of Competences can be found in academic works, provisions of past constitutions, and court judgments. Therefore, to address the legal gap related to the provision of flexible and appropriate public services by local government organizations, it is proposed to add principles of general competence for local government organizations into the Constitution of the Kingdom of Thailand by ensuring that local government organizations at the smallest level or those closest to the people have the general power of competence in providing public services in their respective areas.