Public corporation (Germany)
A corporation under public law ( K. d. Ö. R. , also abbreviated as KdöR, KöR or K. ö. R. ) is a legal person under public law entrusted with public tasks , whose sovereign tasks have been assigned to it by law or in accordance with the articles of association are.
The corporation bundles material resources (such as public buildings , facilities , vehicles ) and personnel ( posts for civil servants and employees ) in a legally independent organizational unit and is subject to public law . Corporations under public law differ from corporations under private law ( association , stock corporation , partnership limited by shares , GmbH , cooperative ) in that they are organized under public law and act under public law .
Many, but not all, cores also show:
- Territorial sovereignty is the right to exercise state power over natural persons , companies and other institutions resident in a certain area .
- Mandatory membership : Due to their place of residence (for individuals) and legal domicile (for companies), they are automatically compulsory members of the corporation. But there are corporations with voluntary membership, like the guilds . Federal corporations only have legal persons under public law as compulsory members.
- They can appoint civil servants to work for them within the framework of their employers ability . However, this is prohibited by law for many corporations.
The supreme territorial body under public law is initially the state as the original bearer of sovereign power, in Germany the federal government and the states . The lowest level of sovereignty is generally the community . The criteria of a corporation under public law can be explained using the example of the municipality. She exercises territorial sovereignty over the residents and companies in the municipality , these compulsory members have to pay taxes and contributions based on the municipal statutes, and finally the municipality is the employer of its civil servants and employers of its employees.
Corporations under public law find a main area of application in so - called self - administration matters , i.e. in state tasks that are to be regulated independently by those concerned, which is why they are organizationally outsourced from the state administrative hierarchy and transferred to legally competent organizations. For example, the citizens themselves determine the fate of the community, the doctors themselves over their affairs in the State Medical Association , the lawyers over their affairs in the Bar Association , etc. Despite the organizational outsourcing from the state area, the bearers of these self-government tasks are part of the public authority and to Law and statute bound ( para. 3 Basic Law ). Self-governing bodies are subject to state legal supervision : The state should not be able to evade its fundamental rights obligations through organizational outsourcing (escape into private law).
Corporations under public law not attached to the state
Sometimes the state gives the status of a corporation under public law but also to organizations that do not perform state tasks but are part of society. The main purpose of this is to give the organization a special reputation in recognition of the work that has been done. The fact that these organizations are under public law, but not part of the state, has a wide range of effects, for example in relation to questions of fundamental rights , state supervision , public procurement law , official liability and the applicability of official offenses . This includes, for example, the Bavarian Farmers' Association , the Bavarian Youth Ring , the Bavarian Red Cross with the Communities and some academies of science . In detail, the delimitation is complicated because it is based on the question of which tasks are to be regarded as "state".
Religious and ideological communities
By virtue of Article 140 of the Basic Law for the Federal Republic of Germany, religious and ideological communities can be corporations under public law, provided they are "loyal to the Basic Law and are designed to be permanent and representative". This special status was justified in the so-called Weimar Church Compromise of 1919, which the Basic Law adopted as constitutional law. Art. 137 of the Weimar Constitution (WRV) determines the separation of state and church. Under certain conditions, religious communities were granted the status of a public religious society; they can thus obtain the status of a corporation under public law. In para. 5 WRV it says: “Religious societies remain corporations under public law, insofar as they have been such until now. At their request, other religious societies are to be granted the same rights if their constitution and the number of their members guarantee their duration. " cooperate with them. For their part, they support the state in terms of the formation and maintenance of a canon of values by promoting peace, law and values and for their part recognizing the state's monopoly of violence and punishment. This cooperation between the state and religious communities manifests itself, for example, in the tax exemption of donations, the giving of religious instruction or special regulations in labor and social law ”. In return, the state may “expect the religious communities to accept citizens of different and non-religious beliefs as well as secular legislation”.
The corporations can differentiate on the one hand according to the type of legal source on the basis of which they are formed, on the other hand according to their members.
Classification according to the type of legal source
- Public international corporations: International organizations based on the treaty law that puts the founding treaty of an organization into force domestically, or on the basis of an ordinance that grants an appropriate status to organizations of which the Federal Republic is not a member
- Constitutional corporations under public law: the Federal Republic of Germany , the states , municipalities and associations of municipalities
- Direct federal corporations under public law (the carrier is the federal government , which also exercises legal and / or specialist supervision, e.g. the German Federal Pension Insurance Association , the employers' liability insurance association , the employment agency , health insurance companies, whose responsibility extends to more than three federal states or DeutschlandRadio ).
- State corporations under public law (the responsible body is a federal state that also exercises legal and / or technical supervision, e.g. universities , technical colleges , health insurance companies whose jurisdiction does not extend to more than three federal states, the medical service of the health insurance in western Germany) .
- State church corporations under public law: Churches , religious groups , which have the status of a public religious society according to GG i. V. m. Art. 137 para. 5 WRV was awarded. It is true that the Basic Law also regards the practice of religion in a certain way as a “public task” worthy of support (cf. religious instruction ). Because of the duty of ideological neutrality, the state is precisely not allowed to run the religious communities as part of the administration. As a result, the religious communities that have the rights of a corporation under public law are not only organizationally outsourced from the state, but are not part of the public authority, and consequently are not bound by fundamental rights , but, like private associations, are entitled to fundamental rights . The state is even more denied legal supervision (cf. correlate theory ). The public law status only serves to be able to continue the forms inherited from earlier times (parish and civil servant relationships, church tax ) and to implement religious freedom of association. With the public-law status, the simple right also combines advantages that are referred to as a bundle of privileges . Corporations under public law in this special sense are the Evangelical Church in Germany and its member churches ( regional churches ) and, in some cases, individual communities (e.g. in the Bremen Evangelical Church ), the dioceses of the Roman Catholic Church in Germany , but also a large number of smaller religious communities such as the Old Catholic Church in Germany , numerous evangelical free churches , the Christian Community , the New Apostolic Church , the Jehovah's witnesses , the Ahmadiyya Muslim Community , the Jewish Religious Communities , the Christian Science , the Bahai , but also philosophical communities as some regional associations of the Humanist Association of Germany or the Federation for Freedom of the Mind in Bavaria, etc., their associations and, in accordance with state church law, their subdivisions (e.g. parishes , church districts , etc.).
Classification according to the type of its members
- Local authority : All citizens permanently living in a certain area who have their place of residence in this area are recorded. There is compulsory membership. These include the Federal Republic , states , districts / districts and municipalities .
- Personal corporation : Not all (natural) persons living in a certain area are recorded, but only those who have a certain characteristic or meet a certain requirement. These include chambers of industry and commerce , chambers of crafts , all statutory health insurance companies, the Association of Statutory Health Insurance Physicians , and the employers' liability insurance association .
- Association body / federal body: Members can only be legal entities . These include higher municipal associations , regional associations , municipal associations , the Federal Bar Association .
- Real corporation: The membership results from the ownership of a certain piece of property or from a related authorization. These include the dike association , the water protection association , the hunting association and the community of participants .
- Collegial bodies / representative bodies are collegial bodies whose members are appointed or elected. These include the Bundestag or Bundesrat .
The Germany radio - as a single broadcaster - a public corporation. According to the DeutschlandRadio State Treaty, the main members of the radio are the state broadcasting corporations of ARD and ZDF . The other public , however, broadcasters are public institutions , as they (ie citizens) have users and no members.
Corporations and sub-corporations in the higher education sector
In Germany, universities and other state colleges are generally state institutions and legally responsible public corporations, sometimes exclusively corporations, in accordance with state law. The members of the corporation include, above all, the professors, the scientific and artistic staff, the other full-time employees at the university and the students. Extraordinary professors, retired professors, private lecturers, doctoral students and post-doctoral candidates are often also members, but sometimes only members of the university.
The student body, which consists of all enrolled students at a university, is a legal sub-body (also called a member body) of the university in many federal states. The faculties or departments of a university, which fulfill their organizational basic units in their research and teaching tasks, are also sub-bodies, which, however, usually do not have full legal capacity.
In a number of federal states, the medical faculties are also dependent sub-bodies that work closely with the university clinic, which is an independent institution under public law (so-called cooperation model), to fulfill their tasks. In other federal states, the medical faculty and the clinic are combined to form a legal sub-body of the university (so-called integration model).
In the area of income taxes and sales tax , corporations under public law are generally not considered to be tax subjects ; this is intended to avoid self-taxation by the state. This goal is in tension with private competitors, who sometimes provide the same services but are not given tax privileges. From a tax point of view, there are therefore three spheres of the corporation under public law that must be distinguished: the area of jurisdiction, asset management and the so-called commercial operation .
The jurisprudence defines as sovereign in the sense of tax law activities that are “peculiar to the public sector and reserved” (so-called state tasks). Such tasks are regularly assigned by law and a. carried out by administrative act .
Under asset management for tax purposes is defined as the management of its own property, if it does not reach the intensity of Gewerblichkeit.
The jurisdiction and asset management are not considered to be particularly relevant to competition. Therefore, it remained that public corporations are not taxable in these areas.
Operation of a commercial nature
A commercial type of business arises when an activity that is competitive and therefore taxable is carried out ( KStG , (3) UStG (since January 1, 2017, Section 2b UStG)). [obsolete] The nature of the same activities form a company of a commercial nature, the nature of different activities form several companies of the commercial nature, cf. Corporate Income Tax Guidelines R 6, Paragraph 3, Clause 3. In administrative practice, an annual turnover of more than 30,678 euros is assumed in order to create an even and tangible level of competitive relevance, cf. Corporate Income Tax Guidelines R 6 Paragraph 5 Clause 1. The sales tax guidelines follow the same sales limits. Businesses of a commercial nature are subject to trade tax , trade tax guidelines R 2.1 para. 6.(1) No. 6
In Germany, corporations are legally incapable of insolvency . For regional authorities such as the federal government, federal states and municipalities, this is regulated in (1) InsO . Other bodies can be declared incapable of bankruptcy by special legislation; see for example AGGVG in Baden-Württemberg . This is to ensure that the public administration continues to be ensured and is not disturbed by foreclosure measures . In addition, the exemption from insolvency proceedings serves a certain protection of creditors .
- Karl-Jürgen Bieback : The public corporation . Duncker & Humblot, Berlin 1976.
- Alfred Endrös : On the origin and development of the term “public corporation” . In: Journal of the Savigny Foundation for Legal History . Canonical department . tape 69 , 1983, ISSN 0323-4142 , pp. 292-324 .
- Ernst Forsthoff : The public corporation in the state . Mohr Siebeck, Tübingen 1931.
- Schematic overview of the corporations under public law in the structure of legal entities (PDF; 68 kB)
- According to Christine Schirrmacher : Islam and Democracy - A Contrast? SCM Hänssler, Holzgerlingen 2013, p. 19 f.
- Schirrmacher, ibid.
- Schirrmacher, ibid.
- Wolfgang Kirk, The Public Administration of the Federal Republic of Germany , 2009, p. 27 f.
- z. B. Art. 11 para. 1, Bavarian Higher Education Act, § 2 para. 1 State Higher Education Act Mecklenburg-Western Pomerania.
- § 2, Paragraph 1, Higher Education Act North Rhine-Westphalia.
- z. B. Art 17 Paragraph 1, BayHSchG, § 9 Paragraph 1 HG NRW, § 50 Paragraph 2 LHG MV
- z. B. Section 50 (2) LHG MV.
- z. B. Section 53 (1) HG NRW, Section 24 (1) LHG MV.
- z. B. Art 34 Paragraph 1, BayHSchG, § 1 Paragraph 1 Bavarian University Clinic Act, § 31 Paragraph 1 and 2 HG NRW.
- § 96 LHG MV, § 91 Thuringian Higher Education Act, § 2 Berlin University Medicine Act, § 1 Law establishing the corporation "Universitätsklinikum Hamburg-Eppendorf".