Het overheidsondernemen: Een kritiek op het tegen ongewilde discontinuiteit beschermde optreden van de overheid. (Volumes I and II) (Dutch Text);.

摘要

The budget constraint of public undertakings is not always hard. One of the consequences is that the survival (or continuance) of those public firms does not depend only upon whether they are able permanently to cover the costs of their purchases by inputs from the proceeds of their sales. In fact, public firms does not bear their risks alone but share it with the State. For various sociopolitical reasons public authorities do not only subsidize the activities of the firms they own. The continuance of these firms is sometimes even ex ante guaranteed by the public authorities. For that reason public authorities reserve themselves the exclusive power of final decision about the continuance of these activities. Therefore an immunity of execution is organized, e.g. an immunity against measures of distress or attachment taken by the unpaid creditors and the exclusion of bankruptcy. In fact, this immunity of execution protects public firms against all types of measures which would prevent public authorities from having the power of final decision about the continuance of the firms they own. In some countries like Belgium and France this immunity is understood in a very broad, even absolute sense, excluding any control by judicial authorities. In his dissertation the author offers a critique on this absolute interpretation. An immunity of execution is not a sufficient guarantee for the continuance of an undertaking. A systematic use or abuse of this immunity to counter the legitimate claims of creditors or even the mere potentiality of using an immunity of execution, without accompanying measures, can injure the creditworthiness or solvency of the undertaking. According to the author, the immunity in the absolute meaning violates not only the European Convention of Human Rights. It is also incompatible with article 90 (II) of the Treaty establishing the European Economic Community.