General and special administrative law
As an established administrative law firm operating nationwide, we have long-standing experience and expertise, evidenced by many specialised qualifications, in providing advice on all administrative law issues. We provide guidance and support to both public administration authorities and to citizens in administrative proceedings of all kinds.
As experienced barristers, we represent both private individuals and the public sector in summary and legal proceedings before the administrative courts.
Support for public undertakings
The public sector can choose from a wide range of forms of action and organisation to discharge its responsibilities. The question as to which forms are permissible and which form is the most appropriate and economical among them is often complex and depends on the specific circumstances of the individual case.
In this context, we stand firmly by your side with our experience in providing advice to public companies, in particular municipal utilities, semi-autonomous public enterprises (Eigenbetrieb), infrastructure companies and hospitals.
In doing so, our activities include the examination of fundamental questions about strategic orientation as well as advice in daily practice. Naturally, as experienced lawyers, we also assume representation in negotiations and contentious disputes.
After all, our consultants also possess extensive knowledge of corporate transactions in the field of public enterprises. This also holds true for matters related to the establishment or restructuring of a public private partnership. Given the interdisciplinary orientation of our law firm, we can draw on extensive expertise in the areas of tax advice, legal advice and business audits for all these subjects.
Grants in aid and public business promotion
The financial support of public institutions and specific investment projects represents an important component of public commercial law. Accordingly, the legal framework conditions to be observed by both funding bodies and funding recipients are multi-layered and complex.
Public procurement and procurement management
When the public authorities wish to award contracts, the question arises as to whether, and if so, what legal requirements must be observed. Depending on the type and volume of the service to be procured, the relevant provisions may vary widely. For example, completely different framework conditions apply to public building projects than to IT procurement, material purchases or contracts with external service providers. Different rules apply to the traditional public supply areas, such as water, energy, and public transport than, for example, to procurements for "general" administration. The public sector's choice of form of organisation – whether, for example, as a limited liability company (GmbH) under private law or as a local authority under public law – can also influence the requirements to be met.
We keep tabs on things for you in this confusing area. We will check whether your procurement falls under the public procurement law regime or whether an exemption may be relevant. We provide you with advice on the preparation and implementation of large and small procurement procedures and show you ways in which the respective procedures can be made as efficient as possible while ensuring legal certainty. Our public procurement management team will also be happy to take charge of the direct handling of the procedure for you.
We provide advice to and assist companies that are bidding for a public contract as they participate in public procurement procedures. In addition, we represent contracting authorities and bidders in review proceedings before the public procurement chambers of the Länder and the federal government as well as the public procurement panels of the higher regional courts. In the case of awards below the EU thresholds, we take on the litigation in civil and administrative court proceedings for primary law protection, and we also take on the litigation in proceedings for damages under public procurement law.
Legal and business management support for major projects
One of our firm's special strengths is the management of complex projects in the areas of energy, water, and telecommunications, where public law must invariably be observed in addition to private law. Naturally, in addition to the public sector, we also provide advice to and represent private project sponsors and investors.
One related focus is on the support and management of broadband expansion. In this context, we have been providing advice to numerous cities, municipalities, and administrative districts for some time, on the issues impacted by network expansion (municipal commercial law, state aid law, public procurement law, telecommunications law). Many relevant publications document our legal expertise and our knowledge of the market.
Thanks to our experience in tax advice and business audits, we can clarify not only the legal parameters but also project financing matters in large-scale public projects. Especially in this area we offer our clients comprehensive advice that only few other consultants can provide.
Compliance in public administration
An important part of our consulting practice is to assist the public sector in complying with legal requirements. Under the keyword "compliance", we share our consulting experience in the field of public administration and provide support in all areas of law that become relevant in the performance of public tasks.
The range of our advice extends from traditional administrative law issues such as the municipal tax law to the establishment of specific compliance structures in public administration. A special emphasis in this area is the prevention of corruption in the public sector, usually at the offices of the awarding authorities in public procurement.
In particular, the tax treatment of public sector activities and institutions is increasingly coming under the scrutiny of the tax authorities. The background to this is that, due to European legal requirements, there are increasing attempts to minimise or end the competitive advantages of the public sector resulting from an absence of taxation.
In principle, a corporation of public law will continue to be subject to corporate income tax and trade tax exclusively for its commercial operations (BgA). However, the related checks and classifications by the tax authority have been becoming increasingly strict. One of the objectives thereof is to prevent the offsetting of tax losses between successful commercial operations and permanently loss-making commercial operations.
One of the principle amendments to VAT law is section 2b Value Added Tax Act (UStG). While the new provision is not scheduled to take effect until 1 January 2021 – if public corporations opt accordingly – a variety of preparatory measures will need to be taken in order to be able to map the correct VAT treatment as of this date.
A key point is that the turnover tax is no longer tied to the commercial operations as such. In future, the respective corporation of public law or of the comparable institution will be the entrepreneur. A distinction must then be made between whether this corporation operates under sovereign or private law. One of the deciding factors is the way that the respective process is formally structured (e.g. statement based on a public law statute or private law contract). However, this circumstance is not the only decisive factor, because the tax authorities expect the overall circumstances of the respective activity to be reflected in the classification as well.
However, even if an activity is basically carried out on a sovereign basis, it may be subject to VAT, provided that it is in relevant competition with the private sector.
In the future, interaction between corporations of public law may also trigger VAT consequences.
In our experience, the correct classification of activities for VAT purposes is only one aspect of the problems faced in this context, apart from the subsequent formal and technically correct implementation (submission of advance VAT returns and VAT returns). Another important aspect is that many employees in the public sector are not aware of the VAT issues and must first be appropriately trained.
For example, the correct VAT assessment of a situation and its implementation in the context of the specified tax returns requires that all the relevant information also reaches the responsible finance department. In practice, public sector employees who are not assigned to the finance department consistently demonstrate a lack of problem awareness. Perfecting this flow of information is one of the main tasks in implementing the tax requirements of section 2b Value Added Tax Act (UStG).
As part of our auditing activities (statutory and voluntary audits, audit-related advice), we audit commercially organized subsidiaries of the public sector in particular, especially in the hospital sector or in public transport. Therefore, our audit mandates in this field include many well-known hospitals and public transport companies in the region.
In addition, we also regularly perform audits for commercial operations (BgA) or public agencies (AöR).
Of course, in our audits, we also take account of the special requirements that such companies are, by law, subject to. For example, an audit of the propriety of business management in accordance with section 53 of the German Budgetary Principles Act (HGrG) or the audit of billing in hospitals and care facilities in accordance with the Hospital Accounting Ordinance (KHBV) or the Nursing/Care Facilities Accounting Ordinance (PBV) is, of course, included in our range of services.
An essential part of our activities also pertains to audit-related advice. They include the provision of general business management advice, but also support in the restructuring of public sector companies as well as the audit or the audit review of special accounting and pay-as-you-go systems.