Public contract (public company)

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Public contract is an indefinite legal term used to describe the statutory or otherwise specified goals of the public sector for institutions under public law.

General

The concept of the public contract emerged in the mid-1960s and encompasses a large number of public tasks. These can change over time, as the state's understanding of social obligations can vary. If the legislature has formulated a certain task as a public mandate (official mandate), the respective institution is forced to implement this task. Public companies and administrations are geared towards the common good . Targets oriented towards the common good can be "road safety" (aim of the road construction administration ), "protection against criminal offenses" ( police ) or "comprehensive, inexpensive transport" (aim of a city bus service ). It is therefore the objective and not the formal objective (cost recovery or profit making) in the foreground. These quite abstract goals then have to be made operational by making them more concrete.

The key criterion for all public companies is the setting of targets by their carrier ( federal , states and municipalities ). The public contract comprises the tasks assigned or assigned to public companies by the legislature or the agency. For example, the goals of public utilities or transport companies are specified, which makes these companies the instruments of their executing agency. In doing so, you fulfill a wide range of tasks derived from the objectives.

Public contract with public companies

Public contracts are already apparent from the Basic Law , which in Art 87e. Set III, para. 2 GG the track dictates the activities of the construction, maintenance, and operating of rail cars. The disposal of household waste is assigned to the public waste disposal authorities in accordance with Section 15 Paragraph I KrW / AbfG. The legal form of an institution under public law is also regularly associated with a public contract. This means that all public law institutions in Germany without exception fulfill a public mandate by virtue of their legal form. However, companies organized under private law (e.g. in the form of a GmbH or AG) can also have a public mandate as public companies. Public companies are the bearers of public tasks and receive their legitimation in the social market economy through this public mandate and its implementation.

If the sponsoring company establishes a public company in which it has a majority stake, it can determine the business purpose and corporate goals through its articles of association or by law . The public contract thus defines the service to be provided by the company. Public companies are thus performing a public task. For their positive perception in the public not only a high quality of the services is important, but also the social responsibility associated with the public order. Public companies usually have to “fulfill an institutional public mandate that is oriented towards the common good and includes the provision of services of general (public) interest”. The main tasks of public companies are securing the infrastructure , services of general interest , monopoly management , research funding and technology development . Corresponding tasks are regularly standardized as a public mandate in laws and corporate constitutions. The initially rough goals (e.g. cleanliness) are refined through concretisation (e.g. area-wide, regularly once a week city cleaning of streets and squares) and thus made operational. The public mandate therefore consists in the specification of a goal by the sponsor of a public company.

Public contract in the savings bank sector

The concept of the public contract in the savings bank system only became more concrete in the context of disputes in the banking sector in the 1970s. Savings banks and Landesbanken are also subject to a public mandate. In the case of the savings banks, the term public mandate refers to the general public tasks determined by the legislator in the savings bank laws , which they have to fulfill and which distinguish them from non-public credit institutions . According to the savings bank laws of the federal states, savings banks with municipal sponsors must fulfill a public mandate. According to Section 3 (1) SpkG NW, the savings banks have the task of supplying the population and the economy with money and credit, particularly in their area of ​​business ( guarantee and structural function ) and their guarantor ( house bank function ). Section 3 (2) SpkG NW provides that the savings banks should strengthen competition in the banking sector ( safeguard competition function ), promote savings and wealth creation in the population, and provide credit for the equipment of medium- sized businesses and the economically weaker sections of the population ( support function ). . Finally, § 3 Paragraph 3 SpkG NW stipulates that making a profit is not the main purpose of the business; the achievement of a reasonable profit is permissible. In general, the following functions can be derived from this for savings banks in the context of the public mandate:

  • Promotional function : promoting savings and wealth formation in the population as well as providing credit to the economy.
  • Guarantee function : to ensure a comprehensive supply of all sections of the population with banking services.
  • House bank function : should ensure the money and credit management supply of the guarantor.
  • Structural security function : existence of public-law savings banks in all regions, including structurally weak regions, for the purpose of a balanced spatial economic structure.
  • Anti-competitive function : Strengthening competition in the banking industry.

In the case of savings banks, the public mandate remains higher than the economic objectives of profitability , liquidity and security . Here, too, the objective objective has priority or is meanwhile equal to the formal objective. Sparkasse profits that are not used to strengthen the security reserve are to be used for charitable purposes. The public mandate shapes the identity of the savings banks and Landesbanken.

The public mandate of the savings banks and Landesbanken has been controversial since 1993 at the latest, because many authors no longer see a viable basis for this in the context of the privatization debate.

Individual evidence

  1. ↑ Milena Valeva, Theoretical Foundations of Ethical Banking Operations , 2012, p. 15
  2. ↑ Helmut Brede, Fundamentals of Public Business Administration , 2005, p. 15
  3. ^ Peter Eichborn / Erich Potthoff, mandate and management of public companies , 1977, p. 49 ff.
  4. ↑ Helmut Bräunig, Status of Perspectives in Public Business Administration , 2007, p. 22
  5. ↑ Berit Sandberg / Klaus Lederer, Corporate Social Responsibility in Municipal Enterprises , 2011, p. 128 ff.
  6. ↑ Helmut Cox, From the economic theory of public companies , in: Dietmar Bräuning / Dorothea Greiling, Status and Perspektiven der Public Business Administration II , 2007, p. 77
  7. ↑ Berit Sandberg / Klaus Lederer, Corporate Social Responsibility in Municipal Companies , 2011, p. 19 f.
  8. ↑ Peter Raskin, The Regional Principle and (New) Electronic Distribution Channels in Retail Banking , 2001, p. 185
  9. ↑ BGHSt. 31, 264, 272
  10. ↑ Cirsten Witt, Evaluation of public savings banks in the context of a privatization decision , 2006, p. 75 ff.
  11. ↑ Milena Valeva, Theoretical Foundations of Ethical Banking Operations , 2012, p. 14
  12. ↑ on behalf of many: Hannes Rehm , Public-Law Savings Banks: Privatization, because successful in competition? , WM 1993, p. 133