The house operation is one of the public companies and administrations and in accordance with German law, a form of organization of a local company . It is a special public company form unincorporated based on community orders or county ordinances in the German states. The corresponding counterpart at the state level is the state company .
According to German municipal law, self-owned businesses are organizational units of a municipality that do not have their own legal personality, for which independent business management can be justified by the type and scope of their activity profile. They can have relationships with their customers (users) under public law (right of subordination ) or under private law (right of coordination ) and thus have performance profiles within the framework of the HGB and the legislative authority ( statute law ) of the municipalities.
The legal definition of § 114 GemO NRW describes them fragmentarily as a municipal economic enterprise without legal personality. A comprehensive definition of the term “self-operated” is not contained in either the laws or the self-operated regulations.
The Sächsische Gemeindeordnung (SächsGemO) provides a legal definition for own businesses in its § 95a and at the same time forms the standardization for the analogous references according to § 63 of the Saxon district regulation (SächsLKrO). The Saxon Company Ownership Act, which was valid until December 31, 2013, was repealed by amendments in the SächsGemO and the adoption of a Saxon Company Ownership Ordinance.
In the Free State of Bavaria , proprietary operations are defined as communal companies that are managed outside of general administration as special assets without their own legal personality. Deviating from the adequate regulations of other federal states, their organs are the works management and the works committee.
The amended Ordinance on Owners' Operation of February 25, 2008 enables the municipalities of the state of Mecklenburg-Western Pomerania to run both economic and non-economic companies as own operations. For this purpose, he must provide clearly definable services. Own businesses have organizational but no legal independence. The lack of its own legal personality is expressed in the fact that the municipal council decides on the establishment and dissolution of its own business, as well as on important matters relating to the strategic and personal management of the own business (Section 5 EigenbetriebsVO). In the absence of legal personality, the legal representative of proprietary businesses is the (lord) mayor of the sponsoring body, provided that no operations manager has been appointed (Section 2 EigenbetriebsVO). Due to the lack of legal personality, proprietary businesses cannot enter into any obligations or acquire any rights. Initially, this can only be done by the municipality's legal representative, the mayor. In order to relieve this, Section 4 (1) of the EigenbetriebsVO provides for external representation competence for the management of the in-house company. This allows the management to conduct business independently, from which the sponsoring municipality is obliged.
Substantive legal basis of the municipal utilities is a self-propelled statute to be adopted by the municipality carrier (eg. As § 95 para. 3 GemO Bayern). The limited autonomy of self-owned companies is also expressed in the fact that they are considered to be companies under tax law within the meaning of No. 4 StromStG .
Own businesses are outsourced from the budget charter of the sponsoring body and form their own municipal special fund . The special fund is outsourced from the municipal budget, is administered and accounted for separately. According to Section 53 (2 ) HGrG, the special fund is formally regarded as an investment in municipal companies under private law . The operationally necessary assets and liabilities to be transferred to the fund when it is set up must be appropriate to the task and are subject to the budgetary principle of budgetary clarity. By separating the special assets from the municipal budget, proprietary businesses can book the fees collected for their services separately from the municipal budget, so that these fees are earmarked for a specific purpose. This earmarking is a permitted exception to the otherwise applicable total coverage principle. Income flows directly into the special fund, from which the expenses are also met. Losses incurred in-house can be carried forward by the sponsoring body in accordance with Section 11 Paragraph 7 Clause 1 EigAnVO or offset in the year in which they arise through contributions from its budget. As a legally dependent, public-law organizational unit of a municipality, the municipal own operation is just as incapable of insolvency as this one. He draws up his own economic plan. This consists of the profit plan (running costs), the asset plan (investments by the operator) and the job overview .
In many cases, self-owned municipal companies ensure services of general interest and operate as utilities ( water , sewage , electricity , gas supply or waste management companies ); 17.9% of all hospitals z. B. are Eigenbetriebe (2007), also public transport companies or theaters are often owned, there are also owned companies of the housing industry .
If these own operations reach a significant size , the executing agency can also outsource them to an institution under public law ( municipal company ) or into private legal forms ( GmbH , AG ) within the framework of its local self-administration .
According to UStG , legal entities under public law are in principle also entrepreneurial and therefore economically active in the context of their own businesses. In the case of in-house operations, according to Paragraph 1, No. V. m. KStG to all facilities that serve a sustainable economic activity to generate income and that stand out economically within the overall activity of the legal person. The intention to make a profit and participation in general economic activity are irrelevant ( (1) KStG).Para. 3 Clause 1
Similar municipal business enterprises in other states
In Austria, the public-law type of operation, which is similar to self-operating under German law, is referred to as a commercial type operation of a public corporation . The legal definition can be found in Section 2 of the Federal Act of July 7, 1988 on the Taxation of Corporate Income .
There is no public organization law on the part of the Confederation and the cantons that provides for a final regulation for forms of organization under public law. If necessary, it is created for the respective purpose. The typical form to fulfill economically oriented tasks of municipalities is the institution with legal personality, whose election occurs by the intended purpose of the task carrier. Their basis for action is the respective establishment regulations.
- Auditors : Changes in the Saxon company law . News from February 17, 2014 on www.wpk.de.
- Bavarian State Chancellery : Municipalfor the Free State of Bavaria, Article 88 Eigenbetriebe . on www.gesetze-bayern.de
- Own operation regulation of the state Mecklenburg-Western Pomerania
- § 96 Abs. 1 Nr. 3 GemO Baden-Württemberg, § 10 Abs. 1 Eigenbetriebs- und Anstaltsverordnung Rheinland-Pfalz
- BFH, judgment of January 23, 2008, Federal Tax Gazette. 2008 II, p. 573
- Friedrich L. Cranshaw, Insolvency and financial law perspectives of insolvency of legal entities under public law , 2007, p. 131
- André Sondertag: Legal forms and supporting structures . In: Barbara Schmitt-Rettig / Siegfried Eichhorn (ed.): Hospital management teaching . Kohlhammer, Stuttgart 2007, p. 189.
- Helmut Brede, Basic Principles of Public Business Management , 2005, p. 81
- RIS : KStG 1988, § 2 . on www.ris.bka.gv.at
- Canton of Bern , Office for Municipalities and Spatial Planning: Advice for municipal reforms . on www.jgk.be.ch