Carrier (savings bank)
A Sparkasse is run by public corporations that have set up the Sparkasse .
History of origin
According to Art. 1 § 2 NotV3, the Reich Decree of October 6, 1931 brought about the legal independence of the savings banks into institutions under public law . For this legal form, a guarantor was (and is) required, which usually consisted of the respective municipality at the headquarters of the Sparkasse.
The legal term "carrier" was created as a replacement for the term guarantor, which was valid before the Brussels Concordance of July 17, 2001. The term “guarantor” was associated in particular with the subsidiary liability of the municipalities and municipal associations for the liabilities of the savings bank they were responsible for ( guarantor liability ). Since such liability violated EU state aid law, guarantor liability is no longer permissible with savings banks and Landesbanken since the Brussels Concordance . Therefore, a new term had to be found with which the subsidiary guarantor liability is no longer associated. The savings banks are still institutions under public law, but their owners are no longer liable for the liabilities of their savings banks.
Legal issues
According to Section 40 Paragraph 1 No. of the Banking Act (KWG), the company name “public-law Sparkasse” may only be used by public-law savings banks with a license in accordance with Section 32 KWG. In addition, there is grandfathering for other credit institutions that had such a designation legally valid before the KWG came into force (Section 40 (1) No. 2 KWG). As a result, only those savings banks that are used by municipalities or associations of municipalities may use this designation.
Carrier 1 is according to § 1. Savings bank law (SpkG) the authority which has set up the savings bank. The savings bank laws of the federal states are based on the assumption that only municipalities , districts or special purpose associations formed by them can be the sponsors of savings banks. For example, Section 1 (1) sentence 1 SpkG NW stipulates that “municipalities or associations of municipalities ... with the approval of the supervisory authority may establish savings banks ... in the legal form of a state institution under public law in accordance with this law”. Under constitutional law, too, the municipal sponsorship must be the rule, because it falls under the guarantee of municipal self-government under Article 28 (2) sentence 1 of the Basic Law.
- The guarantee liability, which continues to apply to municipal, state or federal institutions under public law, has been abolished for savings banks since July 18, 2005. Section 7 (2) sentence 3 SpkG NW stipulates that the provider is only liable for equity capital that has not yet been paid , but not otherwise for the Sparkasse's liabilities (Section 7 (2) sentence 4 SpkG NW). In the context of grandfathering, the municipalities as sponsors are only liable for the “old liabilities” of the Sparkasse that arose before July 18, 2005 (Section 44 SpkG NW).
- The Anstaltslast applicable to the guarantor of the earlier issue is only available in a modified form for the carrier. The regional savings bank laws stipulate that the sponsor will support the Sparkasse in the fulfillment of its tasks, but the Sparkasse has no claim against the sponsor for the provision of financial resources (e.g. § 7 para. 2 SpkG NW). Once it has been established, the Sparkasse is left on its own to strengthen its equity capital , the so-called security reserve ( endowment capital ) or other reserves , within the framework of retaining profits . The acceptance of supplementary capital in the form of profit participation rights by their sponsor is subject to strict regulations.
Effects on the solvency of the savings banks
With the elimination of guarantor liability, the savings banks are no longer benefited from the indirect insolvency of their communal institutions. In theory, this has increased the risk of bankruptcy for savings banks. However, the savings banks nationwide are subject to a deposit protection fund within the framework of the S-Finanzgruppe , which, like the comparable security institutions of the private banking industry or the cooperative sector, takes on the function of protecting credit institutions that have got into a financial crisis from insolvency in the event of support. These deposit guarantee schemes are designed to fully protect liabilities.
Individual evidence
- ↑ Reinfrid Fischer in: Karl-Heinz Boos / Reinfrid Fischer / Hermann Schulte-Mattler, Banking Act , § 40 Rn. 6; Friedrich Reischauer / Joachim Kleinhans, Banking Act , § 40 Rn. 24.
- ↑ a b Christian Thiemann, legal problems of the Sparkasse brand , 2008, p. 106 f.
