Instrumental Personifications of a Corporate Nature in Public Administration

Posted on May 10, 2024 in Law & Jurisprudence

The Personification of a Corporate Nature

Instrumental Personifications

Initial Considerations

Instrumental personifications of a corporate nature are organizations that have legal personality created by the combination of two or more public bodies. This is done to develop a public service of common interest, connect related entities, or manage an activity of general interest.

Two key points:

  • The association between entities is performed under a public form of personification.
  • The association takes place equally, leading to the emergence of a bridging entity that is not built into the existing structure of the participating entities.

There are two types of personalities: local associations and consortia.

A) Associations of Municipalities

B) Regions

A region is an entity formed by the combination of several municipalities for the joint implementation of works/services of local competence. It is a voluntary establishment, and its regulation is outlined in the same functional standard (statutes) that determines the following:

  • Territorial scope of the organization
  • Purpose and competence
  • Governance and resources
  • All that is necessary for the operation of the regulation of local regulations

Scope: There is no limit on creating these entities.

Structure: They have legal personality and capacity to fulfill their specific purposes. The statutes regulating their governing bodies only have the requirement that councils are representative of the municipalities involved.

Process of Constitution: Embodied in the adoption of the Statute. Article 44.3 refers to the laws regulating the regions, which imposes minimum standards:

  • The development of the statutes must be made by an assembly composed of the municipal councils of all promoters of the partnership.
  • The draft constitution should be informed by the Provincial Government concerned and approved by the plenary of each municipality with an absolute majority.

Consortia

Consortia do not have precise conceptual boundaries. There are a series of isolated legal references that draw a blank framework agreement, allowing the operator of each consortium to design its organization and operation in the most convenient manner. This allows for absolute freedom.

The most classical references to consortia are in local government legislation, which states they are a mere snap of the commonwealth. They are constituted by the association of entities of the same nature. A consortium arises from the association of a local authority with either other public administrations that are not municipalities or private non-profit organizations with a public interest concurrent with the public administration.

Consortia enjoy legal personality. Their organization and operation are outlined in statutes. In state law, the consortium may be established between different public authorities that enjoy legal personality. Their aims, organic system, functional and financial aspects are determined in the statutes. Decision-makers will be integrated representatives of all consortium institutions, with the proportion fixed in the respective statutes.

The legal provisions of the consortia are a simple formal coverage that allows any content and is structured on the principle of ius unique because its regulation refers to the statutes of each consortium for all material aspects.

III) The Nature of Instrumental Foundations

Public Bodies

Public bodies under this management model include foundational institutions or institutions of an institutional character created for the execution of a public activity and a form of public legal embodiment.

Autonomous Agencies

Concept

Autonomous agencies are instrumental administrative personifications that carry out functions entrusted with intervention, advocacy, and service on a non-business basis and are subject to administrative law. This must be tempered by:

Foundational Trait: The literal limitation on the activities of autonomous agencies to promote themselves to public service is completed in two ways:

  • Police activities involving the exercise of authoritarian powers of intervention over private subjects are to be understood implicitly included in the provision. This is because there are autonomous bodies engaged in such activities and because the powers involving the exercise of authority are subject to administrative law, which is the second feature of autonomous bodies.
  • Activities or public service benefits and services are those that cannot lead to a compensatory cost for the affected parties. Such provision exists when we face an activity reserved for public business legal entities: the duty subject to administrative law concerns the development of downstream activities that are entrusted, but not what might be called medial or domestic activity.

Two Examples:

  • Article 47 admits that the work is autonomous, so the agencies must act in submission to labor law, not administrative law.
  • Article 49.1 provides for the procurement activities of the autonomous bodies governed by general rules of public contracting authorities, admitting that those to private contracts.
Creation, Modification, and Termination

Creation: The LOFAGE law establishes a formal reservation for the creation of autonomous agencies, which is to be made by law following two requirements:

  • Requirement of Content: The law of creation must indicate the type of public it creates, its general purpose, the Ministry of affiliation, economic resources, and the peculiarities of its personnel system, procurement, and fiscal equity.
  • Formal Requirement: The draft law creating the public body to be submitted to the government should be accompanied by a proposed constitution and the initial plan of action of the organization.

Amendment: Has two requirements:

  • Requires only law when the amendment involves the alteration of the general purpose of the organization, the type of public, or the peculiarities relating to economic resources, the personnel system, procurement, property, and fiscal matters.
  • Adjustment can be made by royal decree, joint proposal by the Ministers of Public Administration and Economics and Finance, but only affects the organization of the body, just the initiative of the government minister publicas.

If the modification occurs by consolidation with another agency, the ministry taking the initiative must be accompanied by the action plan of the organism in the contents cited before.

Termination: Has two requirements:

  • Formal: Must be provided by law (rule) but can also be carried out by royal decree if the lifetime of the body established by the law of creation has elapsed, when all the goals and objectives are undertaken by a territorial administration, or when its purposes have been fully met.
  • Material: Standard to extinguish the agency sets the stage for effective settlement, setting out the measures applicable to agency staff and integration into the heritage of the state of the property and rights that become surplus.
Legal Instrumentality and Dependency

Autonomous bodies have a limited degree of autonomy and depend on the ministry to which they are assigned. This is stressed in the LOFAGE:

  • Article 43.2:”Self-governing bodies rely on a ministry which is responsible for strategic direction, evaluation, and control of results of their activity”
  • Article 44.1:”Public bodies shall conform to the principle of instrumentality for the purposes and objectives that are specifically assigned”

Personnel System

Elements of Autonomy

There are two main elements of autonomy:

  • The allocation to the governing body of the Agency of the powers assigned to specific legislation.
  • The possibility that the law creating the system can establish personal characteristics for the job, access systems, assignment and provision of posts, and personal mobility schemes.
Dependent Elements

Article 47 establishes the principle of equalization of the scheme with the General Administration of the state, establishing a power steering and control by the state administration by pointing out that this”must apply on the instructions of human resources provided by the Ministry of Public Administration and notification of any agreements or resolutions adopted pursuant to the specific personnel system established in the law creating”

Contracting Regime

Article 49 states that there are two rules:

  • The same rules apply for the general administration of the state.
  • The allegiance ministry may limit the ability to hire the agency bodies, imposing its authority to conclude contracts in excess of the amounts that the ministry itself established.

The Appeal System

LOFAGE intensifies the autonomy of these bodies in what concerns the administrative appeal to be lodged against the acts and decisions of its organs. The LOFAGE provides that acts emanating from the highest organs of the body will address the administrative fine, except when otherwise provided by law.

Specialties of the Local Regional Rules and Legislation

The legislation of the autonomous communities regarding the state regulation of autonomous agencies is limited to references made in the relevant laws governing administrative or financial standards, similar in content to the general laws regulating public finance or finances of the respective community, lacking substantive provisions on these entities.

The autonomous regulation of local entities is fixed in the RSCL: the organization and operation of each agency refers to the status thereof, to be approved by the respective corporation. It has four aspects:

  • For the full development of the local causes of creation: the local autonomous agency can provide, if required, a special law when”the discharge of the functions of charitable, cultural, or economic nature so warrant” and when local purchase of private assets assigned to a particular purpose by purchase, gift, or disposition is foundational.
  • The unbundling: local autonomous bodies have a special fund for specific purposes, and the benefits obtained in providing services remain in that heritage.
  • The reversal is the case of extinction: the dissolution of the body,”the local authority will happen universally, i.e., assuming ownership of all rights and obligations”
  • Entrepreneurial public entities: causes the appearance of this figure.

The Emergence of Instrumental Personifications

These entities respond to the search for less rigid formulas that give management the classic administrative law: the claim would”de-administrativiz” certain organizations, making them act like private companies, subject to private law and a higher level of agility and flexibility.

Autonomous Entities Act 1958

This act does not address this problem because it only offered two types of impersonation that had inconveniences.

Breaking the Vicious Circle

To break out of this vicious circle, it was necessary to break with the classical form of personification = legal, creating a kind of personification of public law to be submitted to a private law activity. This began to occur in the company RENFE and to qualify as dogmatically. The 1977 budget law created the legal category of entities in the form of public law but under private law.

Addressing the Problem of Configuration

The problem was still raised, and what was sought to address was the problem of the configuration of certain entities. This was the authoritarian exercise of public powers and the development of economic or business activities typically, when joint ventures had to choose between a public or private personification. The LOFAGE gives us the solution:

  • autonomous body”
  • trading company”
  • public business”
Delimitation: Functional Content and Public Business Entities

The system and autonomous bodies have the same technique.

(2) Functional Content: Article 53.1 says they deserve”the benefits and services activities, service management, or the production of goods subject to consideration of public interest”

Legal Status: The general rule is the application of private law, to be followed for all traffic activities external assets, limiting its application to public law on the exercise of the powers which the institution has allocated and that involve the exercise of authority, the regime of formation of the will of their bodies, its budget and accounting system, and its system of assets and legal personality.

The legal status of public entities is very similar to the autonomous body, so just note the singularities:

Regime of Creation, Modification, and Termination: The same as autonomous bodies, but in this case, there has to be a requirement that the statutes of the public company should indicate the specific organs to those conferred by the exercise of administrative powers.

Regime of Personal Staff: Governed by labor law, with exceptions to the specifications and Article 55.1 exposing public officials concerning the general administration of state and other government staff. The official public is created with a singular or exceptional character: only supported if the law creating an entity provides for it and the conditions to be set, establish the institution powers to apply for staff will be assigned their legally autonomous bodies, the personal is governed by civil service law that law will be of application.

Discipline aspects of the regime of the workforce: as the staff selection system and emoluments subject to strict control by the state administration.

Procurement Regime and Resources: Refers to the provisions for this in the LCAP and LRJA public authorities.

Singular Regime: The Irresistible Trend of Singularity

Alongside autonomous bodies and public business entities are a complex picture of entities created by law under a public form of personification, equipped with a special status and not includible in any of the two previous categories. The LOFAGE adopts a pragmatic attitude towards such entities merely to make a list of rules for the purpose of providing that the general rules involved in regular two basic types of public bodies are not directly and primarily applicable: these institutions have a peculiar regulation, whose validity is saved entirely, so the regulatory requirements of government agencies apply only to Title IV for supplementary reasons.

(4) Reasons for the Uniqueness

All of these entities include the organizational structures of social security, the regulation is based on a funding scheme based on contributions from employers and workers and only minimally by contributions from the general state budget. This consists of four management companies:

  • INS (National Institute of Social Security) manages and administers financial benefits.
  • INSALUD (National Institute of Health) administers and manages healthcare services.
  • IMSERSO (National Institute of Migration and Social Services) manages complementary social services.
  • INSTITUTO SOCIAL DE LA MARINA regulates the special social security of workers in the maritime industry.

There is a common service that centralizes all financial resources of social security, raises revenue, and makes payments.

(2) Allocation to Entities in an Autonomous or Independent Functional System: This is the phenomenon of so-called independent authorities.

(3) Mixed Entities: Entities with an inter-administrative character whose governing bodies are representatives of all competent authorities in the field. There are other bodies that incorporate, together with administration agents, other significant or majority representatives of organizations and social forces of a private nature.

(4) Feature in the Past to Justify the Creation of These Entities: Special status was subject to private law external assets of its traffic. Resumed their consistency with the LOFAGE that only seems to allow private law to apply in the case of corporate public entities.

B) Public Companies

Evolution and Status to the Actual Personifications

Alongside instrumental forms constituted under public law, local authorities have used forms of embodiment also featuring private law: the most important is the commercial company. The use of corporate techniques of personification is one of the contributions of this century ago to the administrative system. At first, it began using in an accident, and now it is a formula with great success: the use of the corporate form was revealed from the outset as the most expeditious and safe to achieve an immediate release of all controls on the classical administrative law.

United to the growth of the Spanish economy and the dynamics of large private companies in a state of virtual bankruptcy, it ended up culminating in a state capitalist economy. The state became the first entrepreneur in the country. State-owned companies were the main source of administrative issues:

  • For outstanding quantitative development, which gave the political leaders economic power and influence.
  • Because it was unusual and had an air of novelty and innovative break with the structures of liberalism.

To view the corporate technique as used by public bodies, we have to see the situation in our time. The corporation is understood as an instrument of policy advocacy and rescue. The company is currently in recession, caused by the social crisis that has led to a progressive economic decline of the public sector (unstoppable movement to privatize public companies and corporate partitions that are reducing the public sector and just lay on the administrative entities of strategic interest societies or social) under the doctrine of public companies are not government but are owned by the administration. This thesis assumes LPA historically and LOFAGE.

It has been the state administration that has made more abundant use of this personified theory, but it has also been used by the autonomous communities and local governments.

State Societies

Concept

State corporations are”those in which the direct or indirect participation of the state, in the capital of the entities in accordance with the provisions of Royal Decree 1091/1998 (now LGP 2003), approving the revised text of the budget law, public sector make up the state, does not exceed 50 per 10″ (Art. 166.1 c) LPAP).

In this complicated writing, what we mean is that the determinant of the character of a society is the formal control: public participation in social capital is a majority. The material control may be held by one or more public entities. Public participation in the capital of a state may be unique (it belongs to a public body only) or multiple (owned by several entities, and their units are added to achieve the limit of 50 per 100).

b) Typology According to the Economic Foundation

This typology distinguishes between different types of state participation in the capital:

  • Shareholders Gestures: The public body holds a position of dominance by the majority character or a domain of fact in a capital so divided or combined with the existence of a government officer-shareholder.
  • Taxation: When public participation is proprietary in nature, and its purpose is to obtain shareholder returns.
  • Witness or of Presence: Intended to be present in the relevant business management to oversee its management internally.
  • Stock Promoter: Involvement of the public entity is to partially fund and support projects.

Problematic: The current legislation takes another classification based on the quantitative level of public participation in the capital.

Distinguished:

  • The societies in which capital is home alone.
  • The public position on the social capital is only a majority.

Both groups are governed by common rules and a specific set of rules applicable only to limited liability public companies.

c) Legal Scheme

(1) Creation and Extinction of State Corporations: The LPAP for these decisions requires the resolution of the Minister of Finance prior authorization of the Council of Ministers. Applies to:

  • Creating a new company.
  • Acquiring shares in an existing company and overcoming the threshold of 50 per 100 of capital, it becomes public.
  • The dissolution of a state society.
  • The alienation of shares of a state company, losing the status of a public company.

Exercise of the Powers of These Societies: The exercise of the rights and powers attaching to the shares the state holds in these companies is for the Finance Ministry, which is the competent body to impart to their representatives in the corresponding corporate bodies. The instructions are an exception to this in societies that belong entirely to the general administration of the state or any of its public bodies. In this case, the Council of Ministers, to authorize the establishment of a company of its kind, attaches the functional supervision of the same ministry that has a specific relationship skills or for the purpose of society.

Operating: These companies are governed by the laws of private law (civil, commercial, and labor), so logically, they cannot have powers involving the exercise of public authority. The submission to the common law has two caveats:

  • All state companies will be applicable budgetary regulations, accounting, financial control, and contracting.
  • Companies whose capital belongs only to public entities of state law, in addition to the above, shall be governed by private law and by this title, which refers to the modification of rules of corporate and commercial law are:
    • The appointment of the directors of the company takes place by the ministry to appropriate the supervision of the same.
    • The appointment of the chairman of the board and the CEO or equivalent was effected by the board of directors of the company on a proposal from the Ministry of tutelage.
    • The directors of the company are exempt from responsibility for providing these corporations legislation when implementing specific instructions from the ministry of supervision to perform certain activities of public interest and the same harmful consequences arising for the company.
    • When holders of the capital state entities perform the non-monetary society, the independent expert report required by company law is replaced by translational anomalies by the supervisory ministry technical.

Societies of the Regions

a) Concept

The concept that autonomous communities give these companies (public) is that they are capital corporations in which most of the participants are from the community, its autonomous bodies, or their public entities subject to private law.

b) Topology

It is not subject to specific regulation, and it is no more than commercial companies. Although there are some oddities like the Madrid legislation imposing the corporate form of legal foundation simultaneously. There is no difference from state regulation. All regional laws entrust the creation and extinction to the respective government ordered its submission to the rules of commercial law, civil and labor.

Local Companies

These are corporations whose capital is entirely owned by the local authority. We must highlight two aspects:

  • Form: Local legislation is more flexible than the state, recognizing the corporation and cooperative. But it is more rigorous by requiring that the corporation has to be the owner of all of the shares.
  • Structure: RSCL the concrete in three organs:
    • The General Meeting of mists their role as full of the corporation, which appoints the board of management among people with capacity.
    • The Management Council specifically is the regular body for the management and direction of society, displaying all powers not expressly reserved to the board of management or general management.

C) Public Foundations

1) Concept

Public foundations are legal entities created or assumed by the administration or other constitutional organs of the state. Their nature and form correspond to the functions of private law. They have a foundation and substance of a private foundation.

2) State Level

The regulation of these functions is done in the 2002 law, which says their public status depends on the formal creation, its control for the Council of Ministers, and the contributions of a public foundation. Private foundations acquire legal status: the foundations cannot exercise public powers and act under the common law, although some aspects remain subject to public law.

3) Local Level

They are listed in Category D of local autonomous creation. One of their assumptions is that the local purchase of private assets assigned to a particular purpose by purchase, gift, or disposal is recognized as foundational. It does not establish foundations of private law because it tries to provide a legal form to the administration of property acquired by the corporation, but with a predetermined purpose (because it is imposed by the seller or because they belong to a private entity and transfer them to local government).

IV. Independent Administrations

a) The Phenomenon and its Causes

The primary feature of all special purpose entities is their strict dependency relationship with the matrix administration, whose guidelines and control are under at all times and in all aspects of their performance. This subordination is due to the compact and hierarchical organizational model that dominates the government in Europe: a model in which all public bodies and individuals are in a position of ultimate dependence on the government, which is required to conduct its business and respond to its electorate. This concept has evolved into a fragmented system in which we also recognize an increasing level of autonomy to local authorities. It is a network of agencies and entities to which it is hoped typical state functions, developed hierarchically by the administration and modern but designed and regulated to assure a level of functioning independently of the government and this administration.

2) Reasons for Occurrence

This phenomenon occurs for different reasons depending on each country.

b) Conceptual Definition

It does not allude to all cases of attribution positions or recognition of any organization that publishes autonomy for reasons of conceptual clarity and the need to avoid improper translations of principles. We have to separate independent administrations from all cases of constitutional bodies or constitutional importance of autonomy or independence gifted performance but not part of the government structure. Within the authorities themselves are frequently the organizations that the system ensures a secure operating system free from nuisance power wings, which forbids the possibility of conditioning or internal assessment of its activity. This is the case with traditional cutting consultative bodies, monitoring bodies, and prosecution of private activities or organs with internal control functions. The exclusion from the scope of independent authorities derived from the foundation of the independent role of these bodies is again on the inherent requirements of the nature of the role; an advisory body or a court of opposition only makes sense if they act independently, and if they do not, the activity will be useless.

Today there are two basic assumptions:

  • The entities created for the performance of services of general interest or relevant public functions, whose impact on the political dynamics and the system of public freedoms demands made following criteria of neutrality and professionalism. (In Spain, these are the Spanish Broadcasting public entity, the data protection agency, and public universities.)
  • Institutions created for the management and capital discipline of economic sectors whose balance and its major impact on life in general require neutral and professional management: the financial sector, stock market, the energy sector, and communications.

Content Regardless of the Status of the Legal Elements

The aim is to achieve a status of autonomy or independence of these entities. There are three types:

  • The legal institution of formal constraints for the appointment and dismissal of the members of their governing bodies. Such as the appointment of these holders for a fixed term.
  • Attribution of substantive powers for the management of the financial sector, public service, or who have entrusted: the regulatory powers of regulatory and licensing powers, inspection, and technical sanction.
  • The medial autonomy, intended to guarantee the independent operation by removing the powers of government intervention in the instrumental aspects of the internal management of these issues. These are independent status outside the attribution of legal personality to these organizations and submission to their activities outside the private law.

a Foundation and Uncertain Prospects

Although the phenomenon of independent authorities should not be prosecuted based on negative stereotypes, whether it should be referred to a constitutional perspective preocupación.desde noted the difficult reconciliation of operating independence given to these organizations and basic principles of the parlamentario.En the level of political and organizational rationality: a fragmented administration, in which each sector organizations act only according to their sectoral perspectives and interests can become unmanageable.