Institute of public right
The institution under public law bundles material resources ( public building , facility , vehicle fleet , etc.) and personnel ( posts for civil servants and employees ) in one organizational unit . For the most part, the institution is legally independent under public law and therefore has a legal form under public law .
An institution under public law in Germany is an institution equipped with material resources and personnel that is in the hands of a public administration agency and serves a public purpose on a permanent basis. Unlike a corporation under public law, the establishment has no members, but users. Establishments with legal capacity, in contrast to non-legal institutions, can bear rights and obligations. So you can z. B. sue and be sued in court.
The federal agency under public law is a federal legal form . Federal agencies under public law have extensive legal tasks to perform, and some of them can also act under private law within the framework of their partial legal capacity .
Federal agencies are or were:
- Statistics Austria
- Federal accounting agency
- Federal Geological Institute (partially legally competent)
- Central Institute for Meteorology and Geodynamics (partially legal)
- Federal Transport Authority (dissolved in 2017)
- Scientific institution under public law of the federal government , the federal museums
- Federal Office for Agriculture ( )
- Agricultural federal agencies (Agricultural Law Amendment Act 2004 Part I Section 2)
- Federal Agency for Agriculture
- Federal research and training center for forests, natural hazards and landscape
- Higher federal teaching and research institute for agriculture Raumberg-Gumpenstein 1
- Federal Institute for Alpine Dairy Industry
- Federal Agency for Mountain Farmer Issues
- Higher federal teaching and research institute for agriculture, agricultural engineering and food technology Francisco Josephinum in Wieselburg 1
- Higher Federal Teaching and Research Institute for Horticulture Schönbrunn 1
- Technical and commercial educational institutions (five central and federal institutions)
- Higher technical federal schools and technical research institutes
- Mauthausen Memorial
- Judicial Care Agency
Otherwise institutions comparable to the German structure are subsumed under the term corporation under public law , which is not strictly defined but is recognized in individual cases.
In Switzerland, the term of the establishment is used within the legal doctrine in a similar way as in Germany, and above all to denote assets with their own legal personality and administration under public law, in contrast to the private foundation .
In Swiss private law ( ZGB ) the term institution is used as an umbrella term for asset dedications, including foundations (cf. Art. 52 ff. ZGB). According to Riemer, Foundation Commentary, Systematic Part N 13 ff., 481 ff., The Civil Code does not recognize any private-law institution as a separate legal entity. With regard to Swiss private law, because of these overlaps, Riemer points out that "'establishments' ... in private law are always to be equated with 'foundations' in certain cases in public law".
A legal form of institution in the strict sense is governed by Swiss law, however, not known. So-called "institutions" are regularly founded by federal or cantonal laws in various legal forms of public law, often also as private legal entities to which special public tasks and rights, including sovereign rights , are assigned by law (mixed institutions under public and private law) . In Switzerland, for example, the public broadcasters include:
- suva Swiss Accident Insurance Fund in Lucerne
- Bodies for the implementation of the Federal Act on Disability Insurance (cantonal IV bodies)
- the Federal Nuclear Safety Inspectorate (ENSI)
- most cantonal banks , e.g. B. the Zürcher Kantonalbank
- various regional transport companies
- St. Gallen Fire Insurance Company, Building Insurance Canton Zurich
- Thurgau electricity works
- Electricity company of the Canton of Zurich
- Numerous universities, e.g. B. the University of Zurich UZH
- Numerous cantonal hospitals and clinics, e.g. B. the University Hospital Zurich and the Cantonal Hospital Winterthur
- Numerous universities, e.g. B. the Zurich University of Applied Sciences ZHAW , Zurich University of the Arts ZHDK or the University of Education Zurich PHZH
- Intercantonal teaching materials center in ilz
- Swiss Financial Supervisory Authority FINMA
- Office for Road Traffic and Shipping of the Canton of Friborg (ASS)
The first public law institution was founded in Liechtenstein by law and by outsourcing in 1923. It was the later Liechtensteinische Landesbank (LLB), which was converted into a stock corporation in 1992 . The Liechtenstein legal system recognizes four basic types of independent institutions:
- the institution under public law,
- the public institution,
- the public utility and
- the establishment under private law .
The institution under public law according to Article 78, Paragraph 4 of the State Constitution (LV) is a special form of company, the structuring of which is incumbent on the simple legislature by law in every application.
The legislature is not bound by any specifications (e.g. type of institution according to PGR) and can change the corresponding regulations e.g. B. with regard to endowment capital, organs, founder's rights, users of the establishment, etc. relatively freely. Due to the publication of the established establishment by its own law, no mandatory entry in the commercial register is required. However, an entry does not hurt either.
The public-law institution according to Article 534 PGR differs according to the control by the public sector and church institutions in two further types of institution, the
- independent public law institutions. These are subject to public law, unless there are exceptions,
- independent church institutions. These are subject to public law and, on a subsidiary basis, to church law and not to the PGR.
The institution under public law within the meaning of Article 78 paragraph 4 LV and public law institutions within the meaning of Article 534 paragraph 2 and Article 577 paragraph 2 PGR are also with regard to the definition of the term in Article 534 paragraph 2 in conjunction with Article 244 paragraph 2 PGR not to be understood as a synonym for the sphere of activity. While the Liechtenstein public-law institution within the meaning of Article 78 Paragraph 4 LV has a very limited area of activity, namely only serves to “carry out economic, social and cultural tasks” and can only be established “by law”, public-law institutions are primarily subject public law, but in addition to Articles 534 et seq. PGR and no restriction of the corporate purpose , which, however, may not include any sovereign enforcement in the case of the public-law institution.
The Liechtenstein public-law institution “owes” its establishment as a special public company form to the report of the Princely State Court of December 14, 1961. In this report in accordance with Article 16 of the State Court Act (StGHG old version), the State Court of Justice, in accordance with the request of the Princely Government of December 27 , 1961 March 1961 recognized that all commissions set up in Liechtenstein - and also independent offices and authorities, thus also corporations, institutions and foundations - endowed with decision-making power (" imperium ") had been set up unconstitutionally. This also applies to those commissions that were set up on the basis of the constitution of September 29, 1862 before the constitution came into force on October 5, 1921.
The government of the Principality of Liechtenstein then drew up a proposal to amend Article 78 LV. This bill was discussed in the first reading on December 28, 1963 in the state parliament, and after intensive debate this government proposal was passed unchanged as a constitutional law with regard to Article 78 paragraph 4 LV. Article 78 of the state constitution was amended by the law of December 28, 1963, LGBL 10/1964 (paragraph 1), and paragraphs 2 to 4 were added.
Article 78 paragraph 4 LV was inserted and since then has read: “In order to carry out economic, social and cultural tasks, special corporations, institutions and foundations under public law can be set up under the supervision of the government. “It cannot be deduced from the materials whether the constitutional legislature deliberately wanted to create new legal forms (corporation, institution, foundation under public law) or saw these constitutional provisions as additions or refinements to the existing company forms, in particular the public-law institution, and the creation of these new legal forms happened more or less unintentionally.
The institution under public law can only be assigned tasks which originally belong to the government according to the state constitution. This arises from the compelling connection between the general norm Article 78 Paragraph 1 LV - "Subject to the following provisions of this article, the entire state administration is provided by the collegiate government responsible for the state prince and the state parliament in accordance with the provisions of this constitution and the other laws" and the special standard based on this general standard and specifying it in Article 78 Paragraph 4 LV: “ Special corporations, institutions and foundations under public law are established which are under the supervision of the government ”.
It is therefore not possible for other public institutions, e.g. B. Establish or take over communities, special-purpose associations or municipal associations, institutions under public law. The establishment is excluded, since Article 78 paragraph 1 is inseparably connected with paragraph 4, so an institution under public law can only be founded to carry out the tasks (competences) originally assigned to the government. The assumption by institutions other than the state in its entirety is excluded as this could transfer government tasks to institutions other than those provided for in the constitution and the division of competencies in the constitution could be changed by a simple law such as a founding law of the institution.
Likewise, it is inadmissible to delegate public law tasks or powers to the establishment without these being subject to government control. This control must be so effective that the government can exercise its political responsibility towards the sovereign and the state parliament.
Why the legislature has opted for an institution under public law in some cases of the existing institutions under public law in Liechtenstein - as with the FMA Financial Market Authority Liechtenstein - is not always or not easily understandable. According to Liechtenstein company law, there are a multitude of flexible legal forms of public and private law, in particular AG, GmbH, cooperative, foundation and corporation ÖR. In addition, there is the possibility of creating or modifying any legal form as a legal person ÖR that best meets the respective needs, without having to use a certain corporate law “corset”.
The distinction between the Liechtenstein establishment ÖR and the foundation ÖR is hardly possible in many cases. With both legal forms, the state is the sole founder and cannot waive its founding rights with a foundation ÖR as well as with the establishment ÖR and thus cannot make the assets completely and permanently independent, but must supervise the foundation board or the administrative board, including general authority to issue instructions of the foundation's or the establishment's holdings - not just being able to exercise! - and assume liability for the ÖR facilities.
While membership or the presence of users or beneficiaries is the essential criterion for the delimitation of the public corporation or corporation ÖR from the establishment or the foundation, such a relationship between the establishment and the foundation under public law could still not be convincing and of are found predominantly recognized in academic teaching.
The criterion that the establishment appears to the outside through, for example, structural facilities and the foundation primarily through asset management and asset allocation to the beneficiaries, cannot be used, since in the past in Liechtenstein there were many foundations with (structural) facilities for the Users have been equipped or appear and / or make available. Loening said: “ If in recent times some writers from the foundations have differentiated the institutions as a special kind of so-called legal person, this distinction has no legal significance. It corresponds to the prevailing linguistic usage to designate such foundations as institutions whose purpose of the foundation requires a special building and other externally visible facilities for its execution. A foundation whose purpose is to accommodate and care for the sick in a hospital belonging to the foundation is called an establishment, but not a foundation whose purpose is to provide financial support to sick people in need from the interest of the foundation capital. But the use of the language varies. Also, the term institution is applied to dependent foundations and other institutions under the above condition ”and so far no clear and convincing solution has been found.
The PGR does not offer any definition or suggestions for the (private law) delimitation of the establishment from the foundation, but rather places them - apart from the existence and transferability of the founder's rights - as distinct association persons in the legal area.
- Institutional relationship
- Municipal company
- Suez Canal Authority Owner, manager and operator of the Suez Canal .
- Otto von Gierke : The essence of human associations . 1902th edition. Scientific book club.
- Otto C. Meier: The Liechtenstein private law institution . Zurich 1970.
- Anton Schäfer : Agencies under public law in Liechtenstein . 1st edition. Edition Europa Verlag, Dornbirn 2007, ISBN 978-3-901924-26-2 ( limited preview in the Google book search).
- Nikolaus Voigt: Independent public law institutions and independent public law foundations of the Principality of Liechtenstein . 1st edition. Ex jure publishing house, 1976.
- Elaboration - federal agencies as non-legally competent public law institutions (Az. WD 3 - 3000 - 046/12). (PDF) In: https://www.bundestag.de/ . German Bundestag - Scientific Services, February 22, 2012, accessed on September 10, 2019 .
- If the federal agricultural and forestry educational institutions (LFLA) are assigned to the educational sector , see educational system in Austria: federal school forms
- BM.I: Public Safety. 2001 issue 3–4 ( web link)
- Riemer: Bern Commentary on Swiss Private Law. Volume 1, Section 3, Volume 1, 48, margin no. 67.