Leo Schürmann, Das Recht der gemischtwirtschaftlichen und öffentlichen Unternehmungen mit privatrechtlicher Organisation, ZSR, Bd. 72, Heft 1, 1953.
Background
The essay “Das Recht der gemischtwirtschaftlichen und öffentlichen Unternehmungen mit privatrechtlicher Organisation” by Leo Schürmann is a contribution to volume 73 of the Journal for Swiss law (ZSR), which was published in 1953 during the centenary of the ZSR. For over 150 years, the ZSR has been one of the main legal journals expressing and developing opinions on diverse legal matters. The essays in the journal, which are primarily written by well-know authors experienced in both research and practice, are about current developments in legislation, court practice and jurisprudence.
Summary
This text is from an article for the “schweizerischen Juristenverein” (Society of Swiss Lawyers) on the subject of semi-private and public enterprises organized under private law.
Prof. Dr. Leo Schürmann initially maintains that the relationship of the state to the economy, the legal types of intervention and the type of participation by the private sector in public sector economic activity have posed new questions for the legal doctrine. Schürmann describes experiences, functionalities and needs as the baseline of what is understood as economic law; these are the legal norms that shape the economic order. Public company law, independent from a public or private organizational form, comprises a part of economic law. Governing authorities serve as producers and distributors of consumer goods, and they are known for their economic-political interventions; companies become supporters of governmental intervention measures.
Prof. Schürmann’s essay demonstrates, among other things, what the characteristics of public and semi-public companies are and that the law applicable to these companies is of a complex nature. In his opinion, the problem of aforementioned law has to be considered more from an economic law perspective than from a civil or public law approach. He further states that the form of organization does not play a role. However, it is important that public company law orients itself towards an economic and welfare state function of the company. He opines that the use of the legal form under private law is legitimate but that the unification of the form of organization is nevertheless desirable.
In the second chapter, Schürmann reveals the constitutional issues of public company law and proves, by means of case law, that the law of public and semi-public enterprises is basically determined by special regulatory provisions.
In the third chapter, Schürmann deals with the legal relationship between public and semi-public companies and the community, which is an aspect of administrative law. The experience shows that the public purpose of undertakings in the economic management cannot be secured by means of regulatory law but rather by the acceptance of functions in membership. This results in a restriction of autonomy. Subsequently, Schürmann examines several legal questions with respect to semi-public and public enterprises and concludes that the current legislation is appropriate. He also opines that there is no reason to issue more specific provisions in the Swiss Code of Obligations for public company law.
In the fifth and final chapter, Schürmann expresses the wish that statistics be released about the extent of the business activity of semi-public and public enterprises; this is tied to legal policy reasons as the release of these statistics would result in a better evaluation of the business activities of the enterprises and of their significance for the public budgetary planning.