Ingerenzpflicht
In local law, the obligation of limitation is the obligation of a municipality to influence a public company operated in a form of organization under private law with suitable means in such a way that compliance with the special legal obligations determined by public law can be ensured at all times.
General
As part of their constitutionally guaranteed organizational sovereignty, the municipalities can outsource individual sub-areas of their services of general interest to commercial enterprises (Section 107 (1) GemO NRW, is also cited below) and non-commercial institutions (Section 107 (4) GemO) in organizational forms under private law. The municipal ordinances then impose numerous conditions on the choice of organizational forms under private law so that, in particular, the outsourcing of tasks from the municipal administration, which is intended to be uniform, does not lead to significant losses of control and thus responsibility. The services provided by the independent units must be geared towards the public interest purposes specified by the responsible bodies and must not be withdrawn from the influence of the bodies responsible for the uniformity of the municipal administration.
The public sector must create permanent opportunities to influence its companies. However, this obligation of limitation does not require the management of municipal companies to prevent any room for maneuver, but due to the restriction to the public purpose (Section 108 (1) No. 7 GemO) , this room for maneuver is significantly less than for companies organized under private law. From this duty of influence or limitation, the municipalities are obliged to influence the legal entities they have created so that they in turn comply with the goals of municipal politics, the orientation towards the common good and the rule of law.
For men, municipal internal rights tend to be more easily realized in forms organized under public law (institutions or corporations under public law) than in the legal forms of private law. This different enforceability of municipal interim obligations is balanced out by the stricter requirements outlined for the drafting of private law articles of association and the delegation of municipal representatives to the bodies of such companies. In order to be able to fulfill this obligation, § 113 GemO NRW contains regulations on the representation of the municipality in the organs of the companies, in which the municipality representatives have to look after the interests of the municipality. According to § 109 GemO, the companies and institutions are to be managed, controlled and monitored in such a way that the public purpose is sustainably fulfilled.
However, in order to give the municipalities the option of outsourcing them to units under public law, some municipal ordinances provide for the establishment of municipal institutions under public law .
Influence
Municipal institutions organized under private law are only public institutions in the sense of municipal law if the municipality reserves the right to influence the company and can thus guarantee the citizens' right to use it under municipal law. In order to secure the obligation to act on companies organized under private law under simple law, both state budget law and municipal commercial law contain numerous public law regulations. This includes, in particular, requirements to ensure adequate influence in a social control body by sending members to this body, being bound by instructions, the obligation to inform or the right to propose or appoint managing directors or board members.
From a group liability perspective, the Federal Court of Justice qualifies regional authorities as companies if they only control a company organized in a private legal form. The stock corporation law concept of control encompasses the possibility of determining the financial and business policy of a company in order to be able to benefit from its activities. Control is assumed if the parent company, either directly or indirectly through subsidiaries, has more than half of the voting rights.
Local restriction
According to Article 28, Paragraph 2, Clause 1 of the Basic Law, local self-government is constitutionally limited to “matters of the local community”. This also results in a spatial limitation of the field of activity of municipal companies, which, however, does not exclude intermunicipal cooperation between public companies, as well as selective effects of economic activity on the territory of neighboring municipalities. The fundamental ruling of the ECJ gives the municipalities considerable leeway for joint and effective performance of public tasks. Intermunicipal shifts of tasks and responsibilities therefore do not represent procurement processes on the market and also enable the constant fulfillment of internal obligations at this communal level.
Individual evidence
- ↑ a b Thomas Mann, The Public Law Society , 2002, p. 90 f. with further evidence
- ↑ Art. 88 to 91 BayGemO, § 114 a GemO
- ↑ Thorsten Franz, Achievement of Profits through Municipal Services of General Interest , 2003, p. 231
- ↑ § 65 Paragraph 1 No. 3 Federal Budget Code or § 108 Paragraph 1 No. 6 GemO
- ↑ § 113 Abs. 3 GemO
- ↑ Section 113 (1) sentence 2 GemO
- ↑ § 113 Abs. 5 GemO
- ↑ § 113 Abs. 4 GemO
- ↑ BGHZ 135, 107, 113 f.
- ↑ IAS 27.4
- ↑ Intermunicipal cooperation is also guaranteed under European law: the ECJ decided that a “public body can perform its tasks in the general interest with its own resources and also in cooperation with other public bodies, without being forced to refer to external bodies to turn ”; ECJ, judgment of June 9, 2009, Az .: Case C-480/06. In the case of cooperation, the municipalities are generally not obliged to carry out an invitation to tender or to obtain offers from private companies.