It allows the creation of local public companies of development SPLA

National commitment to Housing Act has to be enacted on July 13, (Act No. 2006-872). It allows the creation of local public companies of development (SPLA). For the third time in a year, Parliament establishes a new category of public companies in specific vocation which is part of the extension of a movement with the Airport Corporation (law 20/04/2005 on the airports) and continued with the company port (law 5/01/2006 on the safety of transport).

The France, which had historically focused its model of local society of general interest on the mixed economy, thus agrees with local public company model to respond to situations in which the mixed economy society can no longer respond. She joined in that almost all of the other European countries, in particular the Germany, the model of the "Stadtwerke" is probably the most advanced.

Capital 100 public corporation, the SPLA will be designed to achieve on behalf of its shareholders and their territory of development operations. The objective is to build communities of structures combining the flexibility of management of a legal regime to the core of private law and a possibility to contract without competition.

Such a possibility had been opened by the Teckal case (1) in 1999, in which the ECJ exempts competitive contracts concluded by a community when "the community has on the person concerned a control similar to that it exercises over its own departments and that this person carries out the quasi-exclusivité of its activity with the communities who hold". It is of two cumulative conditions pursuant to which the European Court noted the absence of agreement between two separate people"(notion of autocontrat).

Since the Teckal case, the ECJ has completed its case law "in house" and imposed not only a restriction of the scope of society "in house" the activities deployed by the destined for persons other than the community holder must remain marginal, but also a sustainability manifest of the meeting by the criteria of similar control and quasi-exclusivité society activity, and finally a control of the community having on society, narrower than "corporations law in the majority of the partners.

On this last point, the Cabotermo case (2) 11 may require that the control exercised by the community allows it to influence the strategic objectives and important decisions of the company, even if at the same time limit the prerogatives of the Board of Directors. According to the Advocate General, the powers of the community should include the opening of the capital and the creation of subsidiaries and the possibility to influence appointments to the Board of Directors and to control the powers of the Board.

The result of this latest evolution that the only legislation adopted to enable the creation of companies public and bearing on the cantonment of the shareholders as well as on the perimeter of intervention will not intrinsically sufficient to meet the objective pursued by Parliament: the new public companies will be "in house" only as an ad hoc legal device giving the majority community of the prerogatives of control substantially exceeding those that the French law of societies reserve generally to such shareholder.

Beyond the law, it is legal engineering of the corporate law that it respond to the more restrictive criteria laid down by the Community judicature. And it will be to avoid too significant restrictions which could violate the autonomy under the law of corporations, which must be left to social leaders. Such restrictions could be imposed only by specific legal provisions on governance that are not included in the Act.

Should therefore move towards statutory provisions more precisely meets the requirements of the ECJ. Such provisions could more easily be inserted into articles of Corporation simplified stock (SAS), open the port and airport companies legal form. For planning local public companies, the form of société anonyme, imposed by law, will raise more difficulties.