Assimilating Public-Participation Companies to Common-Law Companies: Constraints and Implications

Extract

[...] only the Minister of Economy - since law 1988 = Art 24 majority participation = made by decree minority participation = minister in charge of the economy ? IN ALL CASES, these procedures due to the particularity of the shareholder have been organized by the legislator, but must respect the rules of company law, because these are capital operations. II. The SPP: a structure subject to public specifics A. However, rules of public law are opposable to the SPP Alongside the common regime of company law, certain SPPs have a particular, or even derogatory regime - composition of the management body of SPP varies according to applicable texts - enterprises that are governed by their own textsLaw 2003 -France Télécom) (Law 9 August 2004 / EDF status)loi 2005 / airport) - rule on the governance of certain public enterprises ? [...]

[...] Since the holding of society by the State directly or indirectly represents an economic issue, as these are essential levers for the national economy, where the State wishes to maintain control over these strategic sectors. To what extent can SPP be assimilated to a common law company, while it remains subject to specific constraints resulting from public participation? It is therefore a matter of affirming that these companies belong to common law companies before demonstrating that they distinguish themselves from it due to their specific framework and public prerogatives attached to them (II). I. The public participation company: a company aligned with common law A. [...]

[...] The questioning of EPICs by their transformation into common law companies The State was favorable to EPICs, as it allowed it to guarantee its public control over these companies. However, this form of establishment has experienced a great crisis, forcing the State to renounce this status for many companies - EDF and GDF by the 1946 law, then transformed into a SA in 2004 From then on, it was a matter of European influence, as the Commission questioned the state aid granted to EPICs, as it distorted the game of free competition since: EPIC beneficiary guaranteed unlimited by the State for its loans EPIC could not apply the common law procedure for insolvency and bankruptcy ? [...]

[...] Law of 1983 on the Democratization of the Public Sector modified subsequently by 2001 ? implies a risk of contradiction, of juxtaposition giving a very vague legal regime The public service missions can explain that sometimes the SPPs do not act like a real private company. Because in the case of a universal service mission like La Poste for example, it ensures the delivery of mail throughout France, even in unprofitable areas, within the framework of its universal service mission. [...]

[...] It was a matter of fact of confronting an exploitation act of a qualified port as an act of organization of the SP subject to the rules of the Commercial Code. a common composition = Law of 1983 tripartite composition of the board of directors representing 1/3 elected representatives in the company, 1/3 employees) of common procedures : TRANSFER: Art 22 = rule for public to private property transfers CAR the principle according to 34C is that the legislator should not necessarily authorize each transfer, but rather set the rules in this matter PAR exception: legislative competence will be retained for certain transfers : - transfer to private sectors of public enterprises of 1st rank - transfer of company entered into the public sector in accordance with a law - If The state held the public participation for more than 5 years. [...]