Guarantor
In public law, guarantor is the name of a regional authority that has established an establishment under public law , takes responsibility for this by virtue of the institutional burden and is liable for its liabilities .
General
Public law entities are legal entities under public law that are established within the framework of the principle of self-government and belong to indirect state administration . For example, Section 114a (1) GemO NRW provides that municipalities may set up companies and institutions in the legal form of an institution under public law. Regarding their structure and relationship to the institution, there are no commercial law provisions, but specific provisions of public and administrative law; their statutes form a further legal basis . Since the establishments are legally independent organizational units of the regional authorities, the question must be clarified for business partners and in particular creditors of the establishment whether and to what extent, in addition to the establishment, its carrier is also liable for the repayment of obligations entered into. In the case of companies organized under private law, this question arises from company law , according to which liability is either limited to the paid-in capital ( corporations ) or, in addition, recourse to the shareholders is possible ( partnerships ).
Guarantor liability
While the institutional burden in institutions has a damage-preventive character, the guarantor liability tends to eliminate damage. The guarantor has subsidiary, direct and unlimited liability for the obligations of his institution. Subsidiary means that creditors must have tried unsuccessfully to collect their claims from the institution; only then is recourse to the guarantor possible. Immediately is his responsibility because it can be taken directly by the creditor to complete if a satisfaction out of the assets of the institution is no longer possible. Unlimited means that the guarantor must be liable with all his assets. Unless regulated in the respective articles of association, the guarantor liability is provided for by law (e.g. § 114a Paragraph 5 GemO NRW). According to this, the municipality has unlimited liability for the institution's liabilities, unless satisfaction can be obtained from its assets.
influence
Guarantor liability and Anstaltslast form the typical liability system under German public administrative organization law for public companies in the legal form of an institution under public law. The guarantor issues the establishment's statutes, which regulate its legal relationships. The guarantor's influence on his establishment is great, because he is represented by “born” (ie, statutory) employees of his corporation on the supervisory board or administrative board (mostly as chairman) of the establishment. These organs in turn appoint the board of directors of the establishment. This ensures the corporation's influence on the business policy of its establishment. The savings bank laws enshrined in state law show how great the influence is . The institution has to issue the statutes (§ 6 Abs. 2 SpkG NRW), to give the approval to the appointment of the board (§ 15 Abs. 2a SpkG NRW) and to decide on the discharge of the organs (§ 8 Abs. 2f SpkG NRW). In addition, the Board of Directors decides on the guidelines for business policy. According to Section 11, Paragraph 1 of the SpkG NRW, the representative of the institution elects one of its members or the main administrative officer as the chairman of the board of directors. Similar influence regulations of the carriers can be found in the statutes of their institutions.
organization
Public law institutions are - like their sponsors - structured in a strictly hierarchical manner. They exist as federal, state and municipal institutions. The federal government , a federal state or a municipality is then responsible for and guarantor . Examples for the federal level are Deutsche Welle , at the state level the public broadcasting corporations such as WDR , at the municipal level for example municipal companies such as sewage or waste management . The carrier usually exercises both technical and legal supervision over its institutions.
Regulation at savings banks and Landesbanken
Until the Brussels Concordance in July 2001, the communal guarantors and federal states were also liable for the liabilities of the savings banks / Landesbanken on a subsidiary and unlimited basis . For reasons of state aid law , this guarantor liability has been abolished at Sparkassen and Landesbanken. According to § 7 Abs. 1 SpkG NRW, the sponsoring capital is part of the equity capital of the Sparkasse, according to § 7 Abs. 2 SpkG NRW, the liability of the sponsor is now limited to the not fully paid-in sponsoring capital, otherwise the sponsor is expressly not liable for the liabilities of the Savings bank. Exceptions now only exist for promotional banks such as KfW Bankengruppe .
Individual evidence
- ↑ Anja Hasselmann, The exclusions for the concept of aid in Art. 87 EGV using the example of Anstaltslast and guarantor liability , 2001, p. 135
