Concept and Nature of Public Law Institutions
A Public law institution (AdöR) is an organization or facility entrusted with public tasks, which is established by law or on the basis of a law. It is an independent legal entity under public law and serves primarily to fulfill specific tasks that often serve the common good in the sense of public law. In the German legal system, public law institutions hold a significant position within public law corporations and entities.
Legal Foundations and Legal Nature
Distinction from Other Public Law Organizational Forms
The public law institution is to be distinguished from other forms of public law organizations, especially the corporation and the public law foundation:
- Corporations under public law (e.g., municipalities, chambers): They are organized on a membership basis; the legal status of the members is central.
- Public law foundations: They have assets dedicated to the permanent fulfillment of a public purpose.
- Public law institutions: They are user-oriented organizations designed to provide specific services or tasks for a large number of users.
Statutory Foundations
The establishment, organization, and supervision of a public law institution are generally regulated by a law of the respective federal state, the federation, or at the municipal level. Public law, especially administrative law, is the decisive basis for the legal status and capacity of public law institutions.
Typical areas regulated are:
- Establishment and determination of purpose
- Legal capacity as a legal entity
- Organizational structure and bodies
- Supervision and control mechanisms
- Financing and economic management
Characteristics and Structure of the Public Law Institution
Legal Personality and Independence
Public law institutions possess their own legal personality. They act independently, can sue and be sued, hold their own assets, and are liable for their own obligations. The power of the institution enables them to define the relationship with their users, particularly through the enactment of statutes and the establishment of terms of use.
Delegated Tasks
Public law institutions perform tasks in the public interest as determined by the legislature. These include, for example, tasks in education (e.g., universities), public services (e.g., broadcasting corporations, savings banks, hospitals), or other public facilities (e.g., Federal Employment Agency).
Organization and Bodies
The internal organization is governed by individual statutes as well as legal provisions. Typical bodies of an institution are:
- Executive board or director (managing body)
- Administrative board or supervisory board (controlling body)
- often representatives of the sponsoring or user side
The structure can vary depending on the specific tasks and state law. Internal decision-making and management are the exclusive responsibility of the institution, but they are usually subject to legal oversight by a higher authority.
User Relationship and Institutional Relationship
The legal relationship between the public law institution and its users is referred to as the institutional relationship. It is characterized by a public law user relationship. The terms of access and use derive from the statutes, laws, or administrative acts.
Characteristics of the institutional relationship:
- Equal treatment of all users in accordance with the statutes
- Public law user relationship
- Possibility of regulation through administrative provisions
Control and Supervision
Legal supervision and technical supervision
The public law institution is subject to legal supervision by the competent authority. The objective is to ensure the lawfulness of administration. Depending on the respective legal provisions, technical supervision over the substantive and content-related performance of tasks may also be exercised. The institution as the sponsoring body is not subject to direct instructions regarding day-to-day management, unless expressly stipulated by law.
Economic Control
The economic management of a public law institution is subject to certain public law framework conditions, such as budget management, public procurement law, and the principles of proper accounting. There is often an external audit requirement by state audit bodies or courts of audit.
Financing
The financing of public law institutions is provided through:
- Allocations and grants public funds (budgets of the sponsoring municipality, the federal state, or the federation)
- Own income (e.g., fees, charges, contributions)
- Special funds (for example from foundations or third-party funds)
In particular, for the levying of fees, the cost coverage principle is decisive.
Examples of Public Law Institutions
Examples of typical public law institutions at the federal, state, or municipal level are:
- Broadcasting corporations (e.g., ARD, ZDF, Deutschlandradio)
- Federal Employment Agency
- Colleges and universities (partly organized as public law institutions)
- Savings banks
- Health insurance funds
- Occupational accident insurance funds
- Public libraries
- Waste management companies
Depending on the federal state or field of activity, the organizational form may vary.
Significance in the Public Sector
Public law institutions are important entities for carrying out public responsibilities. Due to their organizational and economic independence, they can fulfill their legally assigned mandates flexibly and effectively, without being subject to immediate administrative hierarchy.
They often make a decisive contribution to public services, social security, infrastructure, and the performance of the public sector. The structure as a public law institution guarantees action oriented towards the common good, rule of law, and transparency.
Literature and Further Sources
- Maurer, Hartmut: General Administrative Law, Munich: C.H. Beck (various editions)
- Schmidt-Aßmann, Eberhard: Administrative Organization Law, Berlin: De Gruyter
- BVerfG, judgment of 11.09.2007 – 2 BvF 1/05 (“Broadcasting Financing Verdict”)
- Various laws at federal and state level (e.g., university laws, savings bank laws)
This article comprehensively explains the legal foundations, structure, and practical significance of the public law institution as a central element of German administrative and organizational law.
Frequently Asked Questions
Which bodies and committees are typically provided for in public law institutions and how are they formed?
Public law institutions generally have specific management and supervisory bodies, whose composition and tasks are established by the respective founding law or the statutes. Central bodies often include a board or directorate responsible for day-to-day management and external representation of the institution. In addition, supervisory bodies usually exist, often called an administrative or supervisory board or similar, which are assigned duties of control and oversight as well as sometimes setting strategic guidelines. The members of these bodies are generally appointed by the sponsoring entity (e.g., federal government, states, municipalities) but may also stem from various interest groups such as employee or user representatives. The type and procedure of appointment, term of office, and dismissal are determined by the respective special law or the statutes of the institution. The law may also provide for an advisory body, such as an advisory council, which provides expertise but does not have decision-making power.
To what extent are public law institutions subject to legal or technical supervision by state authorities?
Public law institutions are regularly subject to legal supervision by the relevant public bodies, such as the federal government, a state, or a municipality. Within the scope of legal supervision, it is checked whether the institution complies with the applicable law in carrying out its tasks. In addition, technical supervision may be exercised, extending to controlling influence on substantive and technical matters, insofar as provided for in the establishing law. The precise form and intensity of the respective supervision are determined by the legally assigned field of activity of the institution, its organizational independence, and the degree of state control. Supervision is exercised through specific measures, such as instructions, objections to resolutions, the appointment of commissioners, or the approval of major decisions.
How are public law institutions financed and are they subject to budget control?
The financing of public law institutions varies according to their tasks and legal basis. Often, financing is provided by grants or levies from their sponsoring bodies, by fees and charges for services rendered (so-called cost coverage principle), or also through their own income from economic activities, as far as this is permitted. Institutions entrusted with sovereign tasks regularly have their own budgetary rights but are often required to draw up a financial plan that must be approved by the responsible supervisory body. They are also subject to audits by state courts of audit or similar control entities, which monitor the regularity and efficiency of the use of funds.
To what extent may public law institutions exercise sovereign powers?
Public law institutions may also exercise sovereign powers as holders of public authority, provided this has been expressly assigned to them by law. This is, for example, the case with broadcasting corporations, social insurance carriers, or universities. The sovereign powers assigned to them include the issuance of administrative acts, the levying of fees, the conclusion of public law contracts, or the conduct of administrative procedures. The institution acts within the scope of its statutory powers and is subject to administrative procedure law and possibly administrative procedural law, so that affected parties may lodge legal remedies against their measures.
What special features exist regarding the liability of public law institutions?
Public law institutions are generally liable, like legal entities under public law, for damages caused in the exercise of their duties. Liability is governed by the provisions of state liability law and typically includes official liability under § 839 BGB in conjunction with Art. 34 GG, where employees of the institution act in the exercise of a public office entrusted to them. For actions under private law (for example, when concluding contracts or within the scope of economic activities), the general rules of civil liability apply. In this respect, the institution itself holds the rights and obligations and is directly liable; thus, the institution is liable to third parties.
To what extent do public procurement law and tendering regulations apply to public law institutions?
Public law institutions are classified as public contracting authorities within the meaning of procurement law, provided they are not purely privately active. They are therefore generally subject to the provisions of public procurement law, in particular the Act against Restraints of Competition (GWB), the Regulation on the Award of Public Contracts (VgV), and further special regulations. This obliges them in particular to carry out transparent and non-discriminatory procurement procedures for the award of public contracts, complying with both national and European requirements. The practical implementation is governed by internal regulations and specific procurement rules.
Can public law institutions issue their own statutes, and what are the legal limitations?
Many public law institutions possess autonomy to issue statutes, i.e., they have the right to independently enact statutes to regulate their internal organization, employment law, fee regulations, or other self-managed matters. The statute represents a sub-legal norm and may only be enacted within the framework of statutory empowerment, as provided in the founding or special law. Statutes may not contradict higher-ranking law and often require approval or notification to the supervisory authority. Legal remedies against statutes are permissible in administrative courts depending on the content of regulation and the affected parties.
