Suchergebnisse

Privatization activities in Germany in the past 60 years have had various reasons and followed different concepts. The problem of how to ensure the protection of state interests, therefore, does not arise in every privatization case, but only where the corpora­tion fulfills sovereign tasks. In such cases, it is also necessary to guarantee state influence after formal or substantial privatization because the state is under a legal obligation to provide for basic needs. Government may ensure influence by means of company law, private law, or by enacting laws or ordinances itself. If privatization is purely formal – i.e., founding a company whose sole shareholder is the state – the state has such rights as provided for by company law. Especially if the corporation is structured as a limited liability company (GmbH), the state has effective instruments to control its business policy. If, however, the enterprise is structured as a stock corpora­tion, care has to be taken to tie the object of the corporation to the fulfillment of the specified sovereign tasks when formulating the articles of association. Also, the state has to consider majority requirements as laid down by law or the articles of association when deciding which share to hold in the corporation. The reason for this is that the strict case law of the ECJ on golden shares allows for hardly any special rights of the state, such as requiring its consent or reserving it a seat on the supervisory board. In the case of functional privatization, as in the wide field of private public partner­ship (PPP) projects, the state has the instruments of contract law at its disposal. Effective state influence depends on the state's rights to access and the enterprise's duties to inform. In many areas, PPP projects are an efficient means to fulfill public tasks. Problems occur, however, if the private tenderer pushes through contract terms which endanger the effective pursuance of state interests.In sectors where material privatization and the dissolution of a former state mono­poly are aimed at, public interests may have to be ensured by mandatory regulations. In this case, not only state interests in sufficient supply of the services in question but also open competition in the relevant markets have to be taken into consideration. (The Editors) ; Privatization activities in Germany in the past 60 years have had various reasons and followed different concepts. The problem of how to ensure the protection of state interests, therefore, does not arise in every privatization case, but only where the corpora­tion fulfills sovereign tasks. In such cases, it is also necessary to guarantee state influence after formal or substantial privatization because the state is under a legal obligation to provide for basic needs. Government may ensure influence by means of company law, private law, or by enacting laws or ordinances itself. If privatization is purely formal – i.e., founding a company whose sole shareholder is the state – the state has such rights as provided for by company law. Especially if the corporation is structured as a limited liability company (GmbH), the state has effective instruments to control its business policy. If, however, the enterprise is structured as a stock corpora­tion, care has to be taken to tie the object of the corporation to the fulfillment of the specified sovereign tasks when formulating the articles of association. Also, the state has to consider majority requirements as laid down by law or the articles of association when deciding which share to hold in the corporation. The reason for this is that the strict case law of the ECJ on golden shares allows for hardly any special rights of the state, such as requiring its consent or reserving it a seat on the supervisory board. In the case of functional privatization, as in the wide field of private public partner­ship (PPP) projects, the state has the instruments of contract law at its disposal. Effective state influence depends on the state's rights to access and the enterprise's duties to inform. In many areas, PPP projects are an efficient means to fulfill public tasks. Problems occur, however, if the private tenderer pushes through contract terms which endanger the effective pursuance of state interests.In sectors where material privatization and the dissolution of a former state mono­poly are aimed at, public interests may have to be ensured by mandatory regulations. In this case, not only state interests in sufficient supply of the services in question but also open competition in the relevant markets have to be taken into consideration. (The Editors)

The following paper sets out some of the conclusions of a Grotius funded project concerning the revision of the Brussels and Lugano Conventions. It focusses in particular on the provisions of the Conventions dealing with lis pendens and related actions (currently Arts. 21 and 22) and the associated problem of determining the time of the proceedings. The difficulties experienced in interpreting Arts. 21 and 22 are noted and linked to differences in the domestic laws of the Member States. The existing interpretations given by the European Court of Justice are unsatisfactory because they fail to take adequate account of these national differences, and the role that they play within the national legal order. New wording for the relevant articles of the Conventions is proposed.