Carrier (public law)
In public law, the term “ sponsor ” refers to those corporations , institutions or foundations under public law that exercise service supervision , technical supervision or majority stake in the capital through other legal forms .
General
In addition to corporations, institutions or foundations, regional authorities (the federal government , the states or municipalities ) can also be considered as sponsors . They act as a public agency and are either as a supervisory authority (official or specialist supervision by one or more specialist ministries ) or as a parent company (equity participation) overriding other legal forms. In the context of self-administration, this includes legal persons under public law ( institutions or corporations under public law ) in accordance with Article 86 of the Basic Law ( federal self-administration ) or private legal forms. Public bodies differ from administrative bodies in that they are responsible for a different form of organization.
Federation
The Federal Republic acts as the supervisory authority for the federal institutions (such as the German National Library , Deutsche Bundesbank , Kreditanstalt für Wiederaufbau ) and corporations under public law ( Federal Labor Office , German Federal Pension Insurance , social insurance for agriculture, forestry and horticulture ). At least one federal ministry performs the tasks of the supervisory authority. The federal government is the sole or majority parent company of state-owned companies such as Deutsche Bahn , Deutsche Telekom or Deutsche Flugsicherung .
countries
The federal states act as supervisory authorities for state corporations under public law ( chambers of industry and commerce , chambers of crafts , chambers of notaries ) and institutions under public law. The latter include development banks (such as NRW.Bank ) and state broadcasting companies (such as WDR ). State companies , on the other hand, do not represent an independent form of an administrative body in terms of organizational law. Depending on the task, they either have the quality of an authority or a public institution or are legally dependent, organizationally separate parts of the state administration whose activities are profitable or at least geared towards cost recovery (§ 14a para 1 State Organization Act of North Rhine-Westphalia).
Communities
The municipalities are responsible for the indirect state administration . As the municipal sponsor , they function primarily for the public savings banks . Just like the savings banks, the municipal companies that have been outsourced from the municipality, such as waste disposal companies, are public law institutions (for example the Duisburg business enterprise ). The establishment of such institutions is regulated differently in the municipal regulations (cf. § 114a GemO NRW). Other public institutions are also supported by municipalities. The privately organized municipal holdings, such as Stadtwerke Köln GmbH, of which the city of Cologne is 100% parent company, are large in size .
Lower operating variables have that also to the public companies counting municipal governments and municipal utilities on. While the self-owned businesses are economically independent (with their own organs ) and form part of the municipal administration , the state-owned businesses lack both legal and economic independence.
Group formation
Because the public supports the control (as supervisory authority and / or seat on the Supervisory Board exercise) on their independent legal forms are hereto majority stake and the financial compensation also have legally based financial relationships described circumstances would a " consolidated justify the Federal Republic of Germany" ( Section 18 (1 ) AktG ). If the public sector participates in companies under private law, it is bound by company law and thus also by group law , provided there are no explicit legal hurdles (such as § 394 , § 395 AktG) to the contrary.
This would mean that German corporate law and corporate liability would also apply in the public sector. However, since a parent company must be able to prepare consolidated financial statements in accordance with Section 291 (1) of the German Commercial Code ( HGB) , only economic entities that could be managed in the legal form of a corporation and, in this case , would be obliged to prepare consolidated accounts , are considered; Private individuals , the federal government, states and municipalities are no longer the parent company.
However, the highest court case law also regards corporations under public law as companies . The Federal Court of Justice (BGH) determined in October 1977 that the Federal Republic of Germany can also be the controlling company. In this case, the Federal Court of Justice took the view that removing the public sector from the regulations applicable to dominant companies would in practice significantly impair the protection of outside shareholders in the companies that are actually dependent on them. Even a stake below 50%, in connection with other reliable circumstances of a legal or factual nature, could establish a controlling influence within the meaning of Section 17 (1) AktG. A public corporation is to be considered to the Supreme Court a ruling of March 1997, according to the companies in the group legal sense, if only one dominated organized under private law companies. According to this, a shareholder is fundamentally - regardless of his legal form - an entrepreneur in the sense of group law if he has other economic interests in addition to his participation in the stock corporation , the nature and intensity of which justify serious concern that he could benefit from membership because of this commitment exercise the following influence on the stock corporation to its disadvantage. However, due to their special creditworthiness ( insolvency ), the federal government, states and municipalities are not regarded as majority shareholders.
Regardless of this, the public sector forms a statistical survey unit in accordance with Section 2 of the Finance and Personnel Statistics Act (FPStatG) so that the public sector is aggregated .
Individual evidence
- ↑ Klaus Müller-Ibold, Introduction to Urban Planning , Volume 1, 1996, p. 189
- ^ Wilhelm Kohlhammer Verlag, Public Administration , Volume 52, 1999, p. 327
- ^ Robert F. Heller, member of the supervisory board in public companies , 2016, o. P.
- ↑ Sven Timmerbeil, Outline of Group and Transformation Law , 2012, p. 7
- ↑ BT-Drs. 10/4268 of November 18, 1985, recommendation for a resolution and report by the Legal Committee on the Accounting Directive Act , p. 113
- ↑ BGHZ 69, 334 , 344; "VEBA / Gelsenberg judgment"
- ↑ BGHZ 135,107 , 113; "Volkswagen judgment"
- ↑ Wolfgang Grill, Gabler Bank Lexikon , AK, 1995, p. 988
