Public Law Institution (Germany)

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A public institution ( AöR , AdöR ) in Germany is one with physical resources ( public buildings , vehicle fleet ) and staff ( posts for officials , centers for employees ) appointed a legal entity under public law , which from a carrier of the public administration is held and permanently serves a public purpose . In contrast to a corporation under public law (e.g. universities , chambers of crafts and doctors as well as municipalities ), the establishment has no members , but users .


Institutions with legal capacity, in contrast to institutions with no legal capacity, can bear rights and obligations ( § 31 , § 89 BGB ). So you can z. B. sue and be sued in court .

The relationship between the institution and its users is determined by institutional regulations. Users can be citizens , companies and authorities .

Forms and terminology

Public law institutions are divided into three groups:

  • fully legal institutions under public law ; these have their own legal personality, are legally separated from the general state administration and are therefore themselves legally competent ; they are often able to serve as an employer , so they can have their own officials; they are established, changed and dissolved by or on the basis of a law.
Example: the state broadcasters of ARD and ZDF , many savings banks , Federal Institute for Risk Assessment (BfR) in Berlin.
  • public law institutions with partial legal capacity ; These are part of the general state administration and are only independent in terms of property law vis-à-vis third parties; In this respect, they can sue themselves in legal transactions and also be sued themselves.
Example: German weather service in Offenbach am Main .
  • unincorporated institutions; these only form organizationally independent units, while they are legally part of a legal person, usually a regional authority .
Example: schools (as a rule, they are dependent institutions of the municipalities, districts and urban districts ; the previously used term “school institution” is no longer used today); Prisons , which are usually institutions of the respective federal state, the Technische Hilfswerk (THW) and the Federal Agency for Civic Education , which are supported by the Federal Republic of Germany , or special state institutions such as the housing supply Berlin . Sometimes the facilities are also referred to as institutes or facilities within the authorities , e.g. B. the Federal Highway Research Institute , although they have an institutional character.

In the state organization law of Mecklenburg-Western Pomerania , the concept of an institution under public law is reduced to institutions with their own legal personality. Section 10 (2) of the Mecklenburg-Western Pomerania State Organization Act defines the establishment under public law as an independent, usually non-membership-based administrative unit with legal capacity that is established for the permanent performance of tasks in the public interest.

The legal form and legal personality cannot always be deduced from the name containing the word “Anstalt” . The former Federal Insurance Agency for Salaried Employees (now: Deutsche Rentenversicherung Bund ), the state insurance institutions located in the federal states (now: Deutsche Rentenversicherung [state name] ) and the former Federal Employment Agency (now: Federal Employment Agency ) were not institutions, but corporations, despite their names of public law.

Some federal or state higher authorities still have the component "-anstalt" in their name, although they do not have any organizational independence but are directly integrated into the state authority (e.g. the Federal Institute for Materials Research and Testing , the Federal Biological Institute for Agriculture and forestry , the Physikalisch-Technische Bundesanstalt , in Hesse the former State Institute for the Environment (HLfU) , which was transferred to the Hessian State Office for Environment and Geology on January 1, 2000 ). All are or were upper federal or state authorities, but no institutions. The outdated terms used by federal or regional higher authorities are increasingly being replaced by the words “Federal Office” or “State Office”.


In Germany Federal institution, a distinction ( Bundesanstalt ; carrier is the federal government ) and countrywide immediate ( State Institute ; carrier is a federal state ) institutions under public law. In addition, there are also increasing numbers of municipal institutions under public law .

According to Article 83 of the Basic Law, the Länder are entitled to administrative organizational sovereignty ; the federal government can therefore only set up public-law institutions if it is entitled to the federal administrative authority for the specialist area that it also wishes to carry out administratively. A frequent application for the creation of federal authorities is Article 87 (3) of the Basic Law ; according to this, the legislative competence of the federal government is sufficient to displace the federal states from the executive competence with the establishment of new higher federal authorities or - in rather rare cases - with new federal institutions under public law.

Examples of federally sponsored public law institutions are the German National Library , BaFin , Deutsche Welle in Bonn and Berlin , the Kreditanstalt für Wiederaufbau (KfW) or the federal and state pension institutions .

Most of the public broadcasters such as BR , HR , MDR , NDR , RB , RBB , SWR , SR , WDR and ZDF are public broadcasters in the federal states , but not Deutschlandradio , which is a public corporation . The state media authorities are also often institutions under public law, as are the state banks in the federal states. Universities and technical colleges (which, however, are usually set up as corporations under public law or, more recently, also as foundations under public law ), student unions and public hospitals can be organized as an institution under public law in the state.

Municipal public institutions are often the public savings banks , which are usually of one or more urban and / or rural districts supported are. In accordance with state law, the approved municipal providers of basic security for jobseekers ( "Hartz IV" ) can set up legal institutions under public law according to SGB ​​II , which are responsible as "special institutions" according to Section 6a SGB ​​II for the fulfillment of the corresponding tasks .

In addition, districts and municipalities are increasingly permitted by provincial law to set up so-called municipal institutions under public law and to convert existing proprietary companies, state-owned companies or municipal corporations (GmbH, AG) into municipal institutions under public law. Frequent use cases for this are municipal services of general interest (e.g. for sewage disposal, waste disposal or public transport ).

Examples of public transport are:

In contrast to self-owned and managed companies of the municipality, municipal institutions under public law are legally capable and often have the authority to be an employer, i.e. they can appoint their own civil servants.

Form of action

Institutions under public law generally act in the forms of administrative law, i.e. they issue administrative acts . By law, connection and use can be compulsory for citizens. The broadcasting corporations of the federal states are often exempt from the application of the administrative procedural laws of the federal states, which nevertheless cannot rule out the possibility that they may issue administrative acts (analogous to the federal state's VwVfG). AöRs sometimes act towards the citizen in the forms of civil law, so that the settlement of disputes then falls to the civil courts (e.g. at the German Weather Service, § 5 DWDG ).

Liability and Bankruptcy

The Anstaltslast represents the carrier's obligation to equip its institution with the financial resources necessary to fulfill its tasks and thus to keep it functional for the duration of its existence. The guarantor liability serves to protect creditors . Due to the guarantor liability, the institution is generally liable for the institution's liabilities without limitation.

The sponsor is always fully liable to third parties for the activities of unincorporated institutions under public law, as they are identical to the sponsor's legal entity. Non-legal AöRs are usually not capable of insolvency because their providers are not either (federal and state governments pursuant to Section 12 Paragraph 1 No. 1 InsO and municipalities, if this is determined by state law (Section 12 Paragraph 1 No. 2 InsO ), which has happened many times).

In the case of legally competent and partially legally competent institutions under public law, the guarantor's liability is not guaranteed without restriction. In the case of municipal institutions under public law in Lower Saxony, the legislature has excluded guarantor liability for reasons of public procurement law. In view of the position taken by the European Commission on institutional liability and guarantor liability, it was argued in the legislative procedure that it is not advisable to allow new guarantor liability for competing public-law institutions. The award senate of the OLG Celle pointed out that an institution under public law was excluded from bidding in an award procedure because this would distort competition. It is against the principle of equal opportunities if a company that is not exposed to the risk of bankruptcy enters into competition with companies that have to bear this risk. Other legislators have not followed this consideration. In Hessen, for example, the municipality has unlimited guarantee liability for municipal AöR.

Public law institutions under federal law are incapable of insolvency if a special regulation so determines (e.g. Section 6 (3) of the Act on the Federal Agency for Real Estate Tasks ; Section 17 (4) of the Act on the Establishment of a Federal Agency for Digital Radio for Authorities and Organizations Security tasks ).

Public corporations, institutions and foundations of the federal states are generally not capable of bankruptcy. This is especially true for the public broadcasters and the media companies of the federal states.

However, insolvency proceedings are possible for institutions that participate more in economic life and competition (e.g. savings banks, state building societies, state banks, public-law banks and credit institutions, public-law insurance companies). The Hamburg Port Authority is also capable of bankruptcy.

See also

Web links


Individual evidence

  1. ^ From March 14, 2005 (GVOBl. P. 98).
  2. Art. 89 Bay. GemO; Section 1 of the Berlin Companies Act (BerlBG) of July 14, 2006 (GVBl. P. 827), with which the state's own companies - Berliner Stadtreinigung (BSR), Berliner Verkehrsbetriebe (BVG), Berliner Wasserbetriebe (BWB) - in (State) institutions under public law have been converted; Art. 94 Brandbg. KommVerf; Section 126 a Hess. GemO; § 70 Meckl.-Vorp. KommVerf - the official name here is municipal company ; § 141 Nds. KommVG ; § 114 a NRW GemO; § 86 a Rh.-Pf. GemO; Sachs-Anh. Law on municipal institutions under public law (Anstaltsgesetz) of April 3, 2001 (GVBl. LSA p. 136); Section 106 a Schl.-Hst. GemO.
  3. For the Hessischer Rundfunk, see the exclusion of application in § 2 Paragraph 1 HessVwVfG.
  4. For municipalities expressly in Art. 77 Bay. GemO; § 62 Meckl.-Vorp. KommVerf; § 128 Paragraph 2 NRW GemO; Section 138 (2) Rh.-Pf. KSVG, § 131 Abs. 2 Schl.-Hst. Regulated by GemO; For the rest, see the following explanations and footnotes.
  5. Section 144 (2) sentence 2 Nds. KomVG.
  6. Nds. LT-Drs. 14/4097, p. 3 to the previous provision of § 113 d Nds. GemO , PDF doc. 47 KB, accessed August 19, 2012.
  7. OLG Celle, decision of September 3, 2001, NdsVBl. 2002, 221 (223).
  8. § 126 a Paragraph 4 Hess. GemO.
  9. § 45 Bad.-Württ. AGGVG, Art. 25 Bay. AGGVG, § 1 Berl. Insolvency Law jur. Persons of the public right v. March 27, 1990 (GVBl. P. 682); Section 38 (3) sentence 2 Brandbg. VwVG, § 4 Abs. 1 Brem. AG-ZPO / InsO / ZVG; § 1 Hamb. Insolvency Law jur. Persons of the public right v. September 12, 2001 (GVBl. P. 375); Section 26 (1) Hess. VwVG, § 1 Abs. 1 Nds. Insolvency Law jur. Persons under public law of March 27, 1987 (GVBl. P. 67); Section 78 (3) sentence 2 NRW VwVG, Section 8 a Rh.-Pf. AG-ZPO / ZVG; Section 37 (1) Saarl. VwVG; Section 19 sentence 1 Saxon. Justice Act; § 6 Paragraph 1 Sachs.-Anh. AGInsO; § 1 Thür. Law on total enforcement in the property jur. Pers. of the public law of 10 November 1995 (GVBl. p. 341).
  10. Radio Bremen , Section 1, Paragraph 3 of the Radio Bremen Law; NDR , § 1 Abs. 3 HambNDRStVZustimmG; Hessischer Rundfunk , § 1 Abs. 3 HR-G; Westdeutscher Rundfunk , § 1 Clause 3 WDR-G; Südwestrundfunk , § 1 Abs. 3 Rh-Pf. SWRZustimmG; Second German television , § 32 ZDF State Treaty.
  11. Medienanstalt Berlin-Brandenburg , § 7 Abs. 5 Brandbg. MedienStVG; Saxon State Authority for Private Broadcasting and New Media , Section 27 Paragraph 2 of Saxony. PRG; Open Canal Schleswig-Holstein , § 12 Schl.-Hst. OK law.
  12. § 45 sentence 2 Bad.-Württ AGGVG, Art. 25 Paragraph 2 Bay. AGGVG, § 1 Berl. Insolvency Law jur. Persons of the public right v. March 27, 1990 (GVBl. P. 682); Section 38 (4) Brandbg. VwVG, § 4 Abs. 2 Brem. AG-ZPO / InsO / ZVG; § 1 Hamb. Insolvency Law jur. Persons of the public right v. September 12, 2001 (GVBl. P. 375); Section 26 (2) Hess. VwVG, § 1 Abs. 2 Nds. Insolvency Law jur. Persons under public law of March 27, 1987 (GVBl. P. 67); Section 78 Paragraph 4 NRW VwVG; § 8 a Paragraph 2 Rh.-Pf. AG-ZPO / ZVG; Section 37 (2) Saarl. VwVG; Section 19 sentence 2 Saxon. Justice Act; Section 6 (2) Sachs.-Anh. AGInsO; § 2 Thür. Law on total enforcement in the property jur. Pers. of the public law of 10 November 1995 (GVBl. p. 341).
  13. § 2 Paragraph 6 Hamb. PAG.