Government Control over Public Enterprises
| Published date | 01 March 1980 |
| DOI | 10.1177/002085238004600115 |
| Date | 01 March 1980 |
| Subject Matter | Articles |
v
The
State
Contracts
Act
of
1963
attempted
to
sort
things
out.
It
laid
down
three
prin-
’~
ciples :
(a)
the
contracts
of
public
authorities ;
are
genuine
contracts;
(b)
all
contracts
are
fundamentally
and
essentially
similar;
and
(c)
their
being
equal
by
nature
does
not
prevent
the
contracts
of
public
authorities
from
having
sufficient
peculiarities
to
form
a
separate
cate-
gory.
The
contracts
of
public
authorities
have been
mentioned
in
the
Constitution,
Article
149.1.18,
and
in
the
Statutes
of
Self-Governing
Com-
munities
already
adopted
and
certain
general
principles
may
now
be
inferred.
State
and
local
authorities
may
enter
into
contracts
under
administrative
as
well
as
under
private
law.
These
come
under
uniform
rules,
including
previous
budget
appropriation
in
the
event
of
expenditure
by
the
State,
general
com-
petence
to
contract
conferred
on
ministers
and
the
councils of
local
government
authorities,
compliance
with
financial
and
taxation
rules,
in
accordance
with
the
instructions
of
the
Min-
istry
of
Finance
and
under
the
post-control
of
the
Court
of
Audit,
awarding
of
contracts
as
required
by
the
public
interest,
and
agree-
ment
stated
in
writing
and
in
due
form.
Though
some
confusion
remains
as
to
whether
contracts
of
public
authorities
come
under
administrative
or
civil
law,
practically
all
of
them
are &dquo;
administrative
&dquo;
either
because
they
are
described
as
such
by
legislation,
or
are
directly
related
to
the
regular
operation
of
a
public
service,
or
have
features
which
justify
a
special
protection
of
the
public
in-
terest.
The
contracts
which
come
under
administra-
tive
law
include
those
for
the
carrying
out
of
public
works,
the
management
of
public
services,
or
supplies
to
administrative
author-
ities ;
contracts
under
special
regulations
or
under
the
State
Contracts
Act,
for
instance
for
studies
and
services,
computer
equipment
and
data
processing,
the
construction
of
admin-
istrative
buildings,
various
sorts
of
transport
contracts;
and
a
series
of
State
contracts
which
form
a
separate
category
of
which
eight
kinds
are
distinguished
by
legislation.
These
include
contracts
between
public
agencies
and
with
foreign
States
or
international
public
law
organ-
izations.
The
system
of
contracts
of
public
authorities
is
directly
influenced
by
the
requirements
of
the
public
interest,
the
prerogatives
of
the
administrative
authorities,
and
the
preferential
jurisdiction
of
administrative
law.
It
differs
from
that
of
the
private
contracts
of
public
authorities
ad
has
given
rise
to
a
considerable
amount
of
case
law.
On
the
comparative
level,
it
offers
no
very
special
features.
Government
Control
over
Public
Enterprises
G.
ARIÑO
ORTIZ
The
1967
Nora
report
in
France
and
the
1969
report
of
the
Select
Committee
on
Min-
isterial
Control
over
Nationalized
Enterprises
in
the
United
Kingdom
have
shown
the
diffi-
culties
encountered
in
this
field.
In
Spain,
considerable
study
has
already
been
devoted
to
the
position
and
similar
problems
arise.
Considering
that
some
control
must
be
exer-
cised
over
public
enterprises,
its
organization
is
highly
important.
On
the
comparative
level,
there
are
three
possible
solutions.
The
first
would
be
to
establish
a
Ministry
of
Public
Enterprises
to
co-ordinate
government
control.
The
model
is
the
Italian
Ministry
of
State
Holdings.
Such
a
solution
is
advo-
cated
by
some
in
Spain.
Its
drawback
is
to
concentrate
too
vast
an
amount
of
economic
power,
but
the
case
of
Italy
is
largely
sui
generis.
If
the
management
of
the
public
sector
is
centralized,
such
a
ministry
is
neces-
sary
but
it
may
otherwise
only
be
superfluous.
It
is
not
a
case
of
imitating
Italy
but
rather
of
analysing
the
position
there
in
order
to
draw
conclusions
against
such
a
measure
in
Spain,
but
this
does
not
mean
that
the
sectoral
coordination
of
public
enterprises
ceases
to
be
a
major
problem.
The
second
solution
is
to
form
public
hold-
ing
companies.
The
prototypes
are
the
Italian
IRI
and,
partly,
the
Spanish
INI.
That
is
another
form
of
general
intervention
and
con-
trol.
In
any
case,
the
pre-control
takes
the
form
of
approval
of
plans
and
decisions
and
the
post-control
that
of
audit,
which
leaves
the
management
considerable
autonomy.
Of
course,
the
holding
company
applies
the
gov-
ernment’s
policies
and
partly
holds
the
purse-
strings.
In
spite
of
some
advantages,
such
a
solution
is
unacceptable
in
the
Spanish
case
and
would
introduce
confusion
without
any
worthwhile
compensation.
The
third
solution
is
that
enterprises
should
come
directly
under
a
ministry.
This
is
found
in
France
and
in
the
United
Kingdom.
Auto-
nomy
is
then
doubtful
if
not
symbolic.
There
To continue reading
Request your trial