Public company

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Public companies (also called state companies ) are companies under public law or companies organized under private law that are majority or wholly owned by the state or its subdivisions.

General

The attribute “public” is aimed either at the sponsorship of legal entities under public law who have a majority interest in a company organized under private law , or at the operational purpose . A company is public when it acts for the general public , i.e. serves the public and pursues a public purpose . Anyone who is in business, i.e. economically active, is to be regarded as a company. In a broader sense, all federal and state-direct institutions and corporations under public law as well as the majority of private-law companies held by a public institution belong to the sector of public companies.

If one takes a functional company term as a basis, then all economically active forms of organization are to be regarded as companies. A company exists under antitrust law if and to the extent that it is economically active; according to this, corporations under public law are also companies. The combination of both terms ultimately results in the economic activity of an organizational unit that is largely publicly owned. The target provision of § 63 BHO assumes that federal investments are only established or acquired to fulfill federal tasks. In § 65 BHO it is stipulated that the federal government can only participate in companies organized under private law if there is an important interest and can then exercise appropriate influence while observing the subsidiarity principle. This majority public participation is also expressed, for example, in the membership of a public company in the Federal and State Pension Fund (VBL). The main requirement for membership in the VBL is predominantly public participation or significant public influence (implementing provisions for Section 19 (2) sentence 1 letter e of the VBL statutes).

Legal bases

In a broader sense, all federal and state-direct institutions and corporations under public law as well as the majority of private-law companies held by a public institution belong to the sector of public companies. Pursuant to Section 2 (3) of the Finance and Personnel Statistics Act (FPStatG), public companies include all companies in whose nominal capital the public sector ( federal government , states , municipalities ) has a stake of more than 50%. According to the definition of financial statistics, companies are referred to as public if the public sector has the majority of capital or voting rights. In the narrower sense, the term public company is restricted to companies organized under private law with predominantly public law participation.

Art. 2 Para. 1 b) Transparency Directive of June 1980 was the first legal definition under European law. "It is assumed that a controlling influence is exercised if the public sector directly or indirectly owns the majority of the subscribed capital of the company or has the majority of the voting rights attached to the shares of the company or more than half of the members of the administrative board , Performance or supervisory body of the company. ”This definition was adopted almost literally in Art. 1 No. 2 EU Sector Directive. According to the new Transparency Directive of July 2000, a public company is "any company over which the public sector can exercise a controlling influence directly or indirectly based on ownership, financial participation, articles of association or other provisions that regulate the company's activities." that the dominant influence of the public sector is seen as the most important criterion for a public company and not, for example, public property, provided that this influence includes the authority to fill management positions in the company or control over entrepreneurial decisions based on the special rights of the representatives of state power.

The municipal regulations (GO) stipulate that in public companies the public purpose , the appropriate relationship to the performance of the municipality and the subsidiarity principle must be observed. The concept of the public company is rarely found in German law. For example, Section 130 (2) OWiG stipulates that "the company or company within the meaning of paragraph 1 is also the public company."

One can only speak of a public enterprise if

  • there is a minimum degree of independence vis-à-vis the state institution;
  • an economic purpose is pursued, namely the production and sale of goods or services;
  • the operational management is comparable to that of a privately organized company.

Finally, in the GO (e.g. § 107 Paragraph 1 Clause 3 GO NRW) economic activity is viewed as the operation of companies that are active in the market, provided that the service could also be provided by a private individual with the intention of making a profit.

Art. 106 TFEU ​​also subjects public companies to the competition rules of EU law by obliging the member states to subject the companies to the state aid regulations of Art. 107 TFEU ​​( notification obligation ).

Business purpose

The business purpose of public companies and administrations must be within the constitutionally limited public purpose .

Public purpose

Public companies with a non-economic organizational form ( own operations , institutions or corporations under public law) or in private law form ( municipal companies ) must always pursue a "public purpose" (§ 107 GemO NRW). The term “public purpose” is an indefinite legal term that is open to interpretation. A company whose exclusive or primary purpose is profits is incompatible with the public purpose . “Municipal economic law largely prohibits municipalities from doing economic activity without reference to their public duties. Purely commercial-fiscal companies are prohibited to the municipalities ”. With regard to other legal persons under public law, there is usually a similar situation due to budgetary provisions.

According to the aforementioned legal provisions, it can be assumed that the "use of assets and commercial activities by public corporations is generally only permitted in connection with the performance of public tasks". In doing so, the municipalities' right to determine tasks must be observed, which, in accordance with Article 28 of the Basic Law, results from the state's right to self-administration. The states have the right to define which tasks belong to public services or not, e.g. B. Theater, energy and water supply.

Business activity

Within the framework of the above-mentioned, relatively narrow limits, public companies have their focus - measured in terms of the share of gross value added in all economic sectors - in the areas of supply and transport ( municipal utilities , local public transport ), credit institutions ( savings banks , Landesbanken , reconstruction credit institution ) and in insurance . The entirety of public companies in Germany does not form a political unit due to the heterogeneity of public bodies. However, there are commonalities where municipal law requirements are to be implemented by the bodies appointed by the public authorities. Above all, the goal of sustainable budget relief has led to privatization since the 1980s and 1990s, especially in industrial federal assets and in the federal states and municipalities . At the municipal level, the need to increase efficiency led to the outsourcing of public companies from the households and to their conversion into own operations or companies of a different legal form .

The concept of the public company can encompass the core area of ​​administration. It was organizationally, legally and economically separated from its sponsoring bodies in order to carry out a precisely defined area of ​​responsibility. Public companies serve public services , economic development or regional development on behalf of their sponsoring bodies. A company is public when it acts for the general public, i.e. serves the public and pursues a public purpose. At the municipal level, all municipal companies such as municipal utilities or municipal companies belong to the public companies. In the broadest sense this also the municipal include equity and publicly owned enterprises as well as all institutions and public bodies, insofar as they are engaged in economic.

Competition law is based on a functional corporate concept. Anyone who is in business, i.e. economically active, is to be regarded as a company. Under antitrust law, it is a company if and to the extent that it is economically active. Pure institutions and corporations under public law, such as BAFin or Deutsche Rentenversicherung , do not operate economically on the market and act as pure authorities . Public companies are undoubtedly more taxable and controllable than regulated private companies.

organization

Public companies exist not only in a market economy , but also in a central administration economy . Their organization differs in one essential criterion.

Market economy

These are constitutive features of public companies and administrations under market economy conditions

Central administration economy

In a centrally managed system, the public companies and administrations take on the functions that companies have within a market economy. According to Erich Gutenberg, the constitutive characteristics of such public companies and administrations of a centrally managed order are diametrically opposed to those of companies , namely that

The state- owned enterprises in the former GDR also belonged to the state via public property .

Limits

"Purely commercial-fiscal companies are prohibited to the municipalities" if there is no reference to their public tasks. A company whose exclusive or primary purpose is profits is also incompatible with the “public purpose”. According to this, public companies must also fulfill the purposes of providing services of general interest and must not be primarily oriented towards making a profit. The making of profit must be subordinate to the public purpose; it is expressly permitted to add income to the municipal budget. For example, Section 109 (2) GemO NRW assumes that the annual profit of a municipal company generates at least a market return on capital. The participation of a sponsoring body in a company organized under private law may only take place in legal forms in which a limitation of liability is possible (Section 108 (1) No. 3 GemO NRW; i.e. GmbH or AG). In Art. 106 para. 1 TFEU is also a ban on aid statuiert for public companies, without being defined in more detail here. This provision puts them on an equal footing with their sponsoring bodies in terms of state aid. According to this, no measures contrary to the contract or, in particular, Art. 12 TFEU ​​and Art. 101 to Art. 109 TFEU ​​may be taken or maintained.

Dependencies

Public company is a generic term for public-sector companies. Therefore, Article 3 of the Transparency Directive seeks to ensure that the disclosure of financial relationships between the public sector and public companies is guaranteed. In particular, this concerns

  • the compensation of operating losses,
  • Capital contributions or capital endowments,
  • non-repayable grants or preferential loans,
  • the granting of financial benefits by foregoing profits or not collecting debt claims,
  • the waiver of normal interest on the public funds used,
  • the compensation of burdens imposed by the public sector.

Since the economic activity of the sponsoring corporations must be dominated by a common good , the responsibility for tasks must remain with the sponsoring corporation. Regardless of the legal form chosen, this must ensure that it has an adequate influence on the company's activities. This so-called obligation of limitation also arises from the principle of democracy , because after all public companies work with public funds, the use of which taxpayers must be able to demand accountability and influence through their democratically legitimized decision-makers. Problem areas often arise here if a private GmbH / AG was chosen as the legal form and private shareholders are also involved. The company's purpose, which is geared to the public purpose, must in any case be stated in the articles of association. This is what municipal investment management is used for .

economics

According to § 7 BHO and § 6 Abs. 1 HGrG and the identical provisions of the LHO, the principles of economic efficiency and economy must be observed. This initially only applies to the sponsoring bodies and their AöR / KöR. According to this, appropriate profitability studies must be carried out for all financially effective measures; There are special work instructions for this nationwide.

Konrad Mellerowicz had already recognized in 1956 that the decisive problem with public operations was "to bring them to the greatest possible profitability, because the monopoly status and the lack of compulsion to cover full costs are not exactly in the direction of profitability". Even if public companies do not operate on the profit principle, they still have to act economically. Economic means that the relationship between the result of the activity and the effort required should be as favorable as possible. Because profitability is not only the selection principle of general business administration , but also of public business administration .

On the one hand, there are public companies that can be profitable (from which economic viability can be expected), on the other hand, there are public companies that cannot even be run at cost . This distinction depends, among other things, on the area of ​​responsibility of public companies. A certain degree of profitability could be expected for municipal electricity suppliers, for example, but hardly for cultural companies. The latter are more likely to be expected to operate without major losses whenever possible. The cited study of around 9,000 public companies was based on the annual financial statements from 1998 to 2006, from which business indicators were developed and compared with those of private companies. After that, the peculiarities of public companies were also taken into account, such as the allocations of the public bodies. They were eliminated from the total income, so that the remaining income was included in the analysis as “autonomous income”. A higher proportion of the autonomous income could be seen as a positive indicator of the company's earnings situation. On the other hand, a high proportion of government grants suggests that the company is dependent on public assistance due to its poor earnings. Therefore, based on the volume of public grants, conclusions can be drawn about the actual profitability of the companies. To a certain extent, the allocations represent compensation for the politically determined prices in the public sector.

In the analysis period between 1999 and 2006, the cited study was able to observe an economic weak phase in private companies between 2001 and 2003 due to a decline in the operating result and an increase in extraordinary earnings effects, while in public companies there were hardly any regularities to be recognized. Since their income from ordinary business activities was largely offset by the financial result, it can be concluded that the public sector has a strong impact on earnings . Regarding the autonomous income, it can be seen that this tended to decrease and in 2006 only accounted for 92% of all income; the proportion of assignments rose accordingly. A comparison shows that the margin between the mean turnover and mean expenditure was greater for private companies than for public companies. While the spread between sales and expenditure remained constant in the private sector, it also tended to narrow from year to year in public companies. The interest burden intensity of public companies is at a higher level than that of private companies, which is obviously connected not only with their higher indebtedness, but also with their weak turnover.

profitability

Even if the return on sales in public and private companies has to be interpreted cautiously and differently, a large profitability gap has been observed between the two. While the return on sales for public companies in the period 1999 to 2006 averaged 0.81%, it reached 3.16% for private companies in the same period. The economic efficiency of public companies - measured by the return on total capital - was on average significantly lower than that of private companies. This result also confirms the idea that although the economic efficiency of public companies can be measured using profitability indicators, it must be interpreted with caution because of the specifics of the public sector. Overall, the earnings analysis (both in terms of structure and amount, and in terms of the profitability analysis) of public companies leads to the result that generally, due to the peculiarity of public companies, there is hardly any potential for increasing efficiency in the business sense to be discovered. The analysis of the earnings situation underlines the close ties between public companies and public budgets.

Tax law

Public companies are subject to corporation tax if they qualify as a commercial operation (BgA). They are also subject to sales tax, unless they carry out activities that are incumbent on them in the context of public authority (Section 2b UStG).

Bankruptcy law

The sponsoring bodies are not capable of insolvency ( Section 12 InsO). They are also not legally obliged to protect their privately operated companies from bankruptcy . From a 100% participation of a sponsoring corporation in a company organized under private law, it cannot therefore be inferred that the sponsoring corporation will save the company from bankruptcy under all circumstances. Since only legal forms that limit liability may be chosen, the risk of insolvency is additionally increased.

Examples in Germany

The municipalities in Germany have organized the tasks of providing basic services under public or private law , see list of municipal and municipal utilities .

Examples in Switzerland

Examples in France

In France there is traditionally a large public sector ( secteur public ) with many public companies ( entreprise publique ). One can distinguish

State-owned enterprises

State-Owned Enterprise , also known as Government-Owned Corporation (GOC), is a legal entity that is usually set up with the aim of competing with private companies on market conditions and generating profits. Although such companies are commercial, they are subject to government objectives and can be used as a political tool. The characteristics and rules under which State-Owned Enterprises operate differ from country to country. State-owned enterprises should not be confused with companies in which the state has a stake and can also exert influence, but only has minority interests.

Most of the world export credit insurance companies are state-owned. This is the case with the Swiss export risk insurance SERV , the US Eximbank or the Italian SACE SpA. The German Euler Hermes and the French Coface SA, on the other hand, are part of private companies and handle export credit insurance as mandateurs for the state.

In the USA, the organizational form of “component units” is very widespread at the state and local authority level (“municipalities”). Certain sub-areas of communal tasks are organizationally outsourced to them. This includes, in particular, drinking water, sewage or electricity supply. The sponsoring body is legally liable for them ("financially accountable"); they are consolidated in the annual financial statements of their sponsoring body.

See also

literature

  • Felix Böllmann: Formal privatization of municipal task fulfillment and transformation - legal and economic analysis using the example of Russia and East Germany. Leipziger Universitätsverlag, Leipzig 2007, ISBN 978-3-86583-169-9 .
  • Helmut Brede: Basics of public business administration. 2nd Edition. Verlag Oldenbourg, Munich 2005, ISBN 3-486-57731-X .
  • Ulrich Cronauge: Municipal companies. 4th edition. Berlin 2003, ISBN 3-503-06054-5 .
  • Volker Emmerich: The commercial law of public companies. Gehlen, Bad Homburg vdHu a. 1969.
  • Werner Hoppe , Michael Uechtritz (Hrsg.): Handbook of municipal companies. 2nd Edition. Publishing house Dr. Otto Schmidt, Cologne 2007, ISBN 978-3-504-40090-3 .
  • Jürgen Löwe: Public companies in the market economy? A contribution to the redefinition of the relationship between economy and politics. In: Journal for Public and Public Sector Enterprises. (ZögU), vol. 2001, vol. 24, no. 4, p. 413 ff.
  • Thomas Mann: Public companies in the field of tension between public mandate and competition. In: Legal journal. (JZ) Vol. 2002, p. 819 ff.
  • Günter Püttner: The public companies: a manual on constitutional and legal questions of the public economy. 2nd Edition. Boorberg, Stuttgart a. a. 1985, ISBN 3-415-01125-9 .
  • Norbert Wimmer , Thomas Müller: Business Law. International - European - National. 1st edition. Springer, Vienna / New York 2007, ISBN 978-3-211-34037-0 .

Web links

Individual evidence

  1. ^ BGH, judgment of October 18, 2011, Az .: KVR 9/11
  2. ↑ 80/723 EEC of June 25, 1980
  3. ↑ 93/38 EEC of June 14, 1993
  4. ↑ 2000/52 / EC of the Commission of July 26, 2000
  5. ↑ Regions are not included because they are organizationally and legally dependent and are therefore not regarded as companies
  6. ↑ BVerfGE 61, 82, 107 from 1982
  7. ↑ BVerwGE 39, 329, 333 f. from 1972
  8. ↑ cf. For example, Sections 63 and 65 of the Federal Budget Code on the acquisition and sale of assets and on participation in companies under private law
  9. ↑ BVerfGE 61, 82, 107 f.
  10. ^ Stefan Storr : The state as entrepreneur , 2001, p. 533.
  11. ↑ Stefan Storr: The State as Entrepreneur , 2001, p. 33.
  12. ↑ Jan Schäfer-Kunz / Dietmar Vahs: Introduction to Business Administration , 2007, p. 6
  13. ↑ Henner Schierenbeck: Grundzüge der Betriebswirtschaftslehre , 2003, p. 24
  14. ↑ BVerfGE39, 329, 333 f.
  15. ↑ BVerfGE 61, 82, 106
  16. ↑ BVerfGE 61, 82, 107
  17. ↑ BMF circular of January 12, 2011 (PDF; 392 kB)
  18. ↑ Konrad Mellerwowicz: General Business Administration , Volume 1, 1956, p. 64
  19. ↑ Helmut Geyer: Praxiswissen BWL , 2007, p. 117
  20. ↑ Dietmar Bräunig: Status and Perspectives of Public Business Administration , 2007, p. 18
  21. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 251
  22. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, pp. 203 ff.
  23. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 210
  24. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 210
  25. ^ Britta Caspari: The annual accounts of public enterprises. Basic questions and selected individual problems in terms of content , 1995, p. 216
  26. ^ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 223
  27. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 225
  28. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 227
  29. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 230
  30. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 236
  31. ^ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 238 f.
  32. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 242
  33. ↑ like public mandate, strong influence of public budgets on business activities, non-sale of public assets
  34. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 244
  35. ↑ University of Potsdam (Irina Dietrich): Public Enterprises in Germany - An Analysis of Microdata from Official Statistics , 2012, p. 245
  36. ↑ German Bundestag, printed matter 15/5095, 15th electoral period, March 15, 2005, “Statement of the Federal Government in the context of a small question”, p. 5. (PDF; 225 kB)
  37. ^ Établissement public à caractère industriel et commercial in the French language Wikipedia
  38. ^ Sociétés d'économie mixed de Paris in the French language Wikipedia