The Concept and Characteristics of Public Enterprises in Ethiopia: An Overview
The Concept and Characteristics of Public Enterprises in Ethiopia: An Overview
Abstract
The role of public enterprises in Ethiopia is manifested in the
quantum of capital they command and the magnitude of the
economy’s dependence on such enterprises. Essential services such
as electricity, telecommunication, shipping and logistics, transport
and the like are mainly, if not solely, provided by public enterprises.
Owing to the dearth of research on the subject, there is the need for
conceptual clarity on the notion and the legal forms (or designations)
of such enterprises. Leafing through the relevant laws, one
encounters many definitions. Moreover, the form or designation of
public enterprises and the diversity of the legislation applicable
thereof necessitate inquiry into the concept and their characteristics.
Introduction
The state has a public purpose in the exercise of its sovereign power. Such
power is inherent in statehood and justifies the existence of a government.
That is primarily manifested in the specific function of governments in
discharging their traditional role of ensuring peace and security. But any
modern state assumes responsibility beyond its traditional function of
maintaining peace and order and protecting the country from external
aggression, and it engages in economic activities. To accomplish this, one of
the options is setting up an entity that undertakes commercial activities.
2 MIZAN LAW REVIEW, Vol. 8, No.2 December 2014
on public enterprises defines the word ‘enterprise’ while other laws use the
term ‘public enterprise’. It may be inquired whether the law uses the term
“enterprise” differently from the word “public enterprise”. But, the body of
the definition clarifies the potential confusion by describing it as a public
enterprise. Despite the multiplicity of terminologies in the proclamation,
they conceptually refer to the same thing as can be gathered from other laws
as well.
The need for a definition is not only academic for it has far reaching
practical ramifications. Apart from ensuring conceptual clarity and delimiting
the boundaries of the notion, the need to define public enterprise is felt
practically in circumstances when the Auditor General’s exercise of power
The Concept and Characteristics of Public Enterprises in Ethiopia: An Overview
3
requires recognition of entities as public enterprises. Where the law
empowers a body to audit them, or when Parliament exercises its power to
review performance or a regulatory organ, it is essential to distinguish the
entities that come under such a law.
Moreover, the enjoyment of rights and the assumption of responsibilities
(such as investment incentives, privileges, rights and criminal liability of
their officers) that are specifically applicable to public enterprises require
marking out the entity. For instance, the definition of the term in criminal
law has the purpose of creating liability on the officials of such enterprises
under certain circumstances. Identifying such enterprises is also essential for
economic decision making and statistical data on the size of the public sector
with a view to analyzing economic implications and other issues. The same
applies to the pursuits of developing policy, strategy and planning, and
undertaking comparative research studies.5
Unlike other similar enterprises such as business organizations, the
attempt to distinguish an entity that can be regarded as a “public enterprise”
may present challenges analogous to abstract concepts. 6 Several reasons
explain why it is difficult to define the term. Some of the reasons include the
highly elastic nature of the concept, its contingency on local environments,
the convergence of both public and enterprise aspects in a single entity7 and
18
This can be clearly understood from article 14 of proclamation No. 412/2004
which uses the term public enterprise to refer to those which are excluded. It is
explicit that the definition is for the purpose of determining the scope of
supervisory power of Privatization and Public enterprises Supervising Authority.
19
Proc. No. 412/2004, Article 2(3).
they are subject to different legal regimes thereby confirming that the term
“public enterprise” has retained the meaning ascribed to it under article 2(1)
of Proclamation No. 25/1992.
Subsequent laws came up with an array of definitions which kept on
introducing additional elements broadening the scope of the term. Article
2(4) of the Revised Federal Ethics and Anti-Corruption Commission
Establishment Proclamation No. 433/2005 defines the term as “any Federal
Public Enterprise or Share Company the ownership of which is fully or
partly owned by the Government.” For the Criminal Code, it is “a Federal or
Regional Government enterprise or share company, in which the
Government has total or partial share as an owner”.20
In line with the federal state structure, Art. 2(21) of Trade Practice and
Consumers’ Protection Proclamation No. 685/2010 21 and Article 2(3) of the
Commercial Registration and Business Licensing Proclamation No.
686/2010 classify public enterprises into federal and regional. According to
these proclamations, a business organization whose shares are totally owned
by the federal government or a public enterprise established by a regional
state are deemed to be a public enterprise. Likewise, Article 2(10) of
Investment Proclamation No. 769/2012 defines the term as an enterprise,
partially or wholly owned by the federal or regional government established
to engage in production, distribution, service rendering or related economic
activities in the form of commerce.
One of the tasks of the Office of the Auditor General is to audit or cause
to be audited the accounts of the federal government offices and
organizations.22 According to Article 2 of Proclamation No. 669/2010, the
term government “organization” means any production, distribution, service
rendering, regulatory or any other trading organization wholly or partially
owned by the federal government.23 In light of this proclamation and the
laws highlighted in the preceding two paragraphs, it can be observed that
there is a new element added in the definition of a public enterprise by
20
Art. 402(3) The Criminal Code of Ethiopia Proclamation No.414/2004, 9th
<
including enterprises which are partially owned by the state. Moreover,
distinction is made between enterprises which may be established by the
federal and state governments.
It can generally be noted that the above definitions share features that
expressly mention or impliedly incorporate the definition of public
enterprises embodied in Proclamation No. 25/1992. However, there are
additions and exclusions introduced by each proclamation, and the elements
which distinguish one definition from the other are diverse. Proclamation
No. 25/1992 was enacted at the time when the form of state structure was
unitary, and the concept of regional public enterprise is brought up later on
along with Ethiopia’s current federal structure.
It should be noted that the foregoing analysis is for the most part based
on laws applicable to enterprises set up by the Federal government. Regional
states can also establish enterprises for the purpose of carrying out
commercial activities.24 Hence, in understanding the concept, it is imperative
to take into account the role of public enterprises established by regional
states, as well. However, owing to the absence of a legal framework or due
to the diversity of laws governing such enterprises in regional states, a
comprehensive definition (that can be applicable to all) is lacking.
The share of ownership is also another source of diverse definitions. The
question whether public enterprises are characterized by total or partial state
ownership (even under settings of majority holding) is answered differently
under various laws. For some scholars and jurisdictions, majority holding in
a commercial entity suffices to consider it as a public enterprise. For others,
full ownership or the form of the entity is an imperative factor.
The form of an economic entity (corporation, share company, public enterprise)
entails diverse outcomes regarding its status depending on the definition that is
pursued. The diversity in definition thus insinuates a chaotic situation in the legal
regime on public enterprises as every legislation comes up with its own definition
of the term thereby rendering it practically impossible to ascribe a distinct
meaning to the term. Thus, one has to be specific as to which context or subject
matter or legislation he/she is referring to if
8
ambiguities and inconsistencies. These challenges in interpretation thus call
for closer examination into the characteristics of public enterprises.
2 Characteristics
A public enterprise is necessitated by the need “to find an effective and
efficient economic organization under socially satisfying conditions.”25
Hence, the economic and social aspects converge in a single entity. It is a
borderline entity sharing the features of a public entity and business. A
public enterprise combines dual features (in status and functions) as
enterprise aiming at profit while at the same time having public nature as a
public entity.
It is proposed that the most effective methodology for identification is to
specify the tests which need to be met if an institution can properly be
identified as a public enterprise. To this end, certain tests can be employed,
namely: ownership test, public purpose test, the field of activity test, the
concept of investment and return, the concept of marketing and the
commercial accounts. These tests are believed to enable us conceptualize the
notion of public enterprises and have a better understanding of the entity
based on its features.26
49
Commercial Registration and Business Licensing Proclamation No.
shouldered by the State. The mere fact that they are organized as public
enterprises demands that they set price based on the market unless the
government decides to subsidize the enterprise as in the case of certain
public utilities.
b) The accounting concept
Public enterprises and other government institutions are subject to different
accounting systems. The establishment of a public enterprise is contingent
upon its capital which is indispensable for its existence. 56 Moreover, its
capital serves as security for its creditors because of its limited liability. 57
Owing to its commercial nature, the law requires it to maintain two books of
account, i.e., a balance sheet and a profit and loss account. It should also
follow generally accepted accounting principles in maintaining financial
records and preparing financial documents.58
A public enterprise is required to close its accounts at least once a year.
The annual closing of accounts shall be completed within three months
following the end of the financial year.59 Unlike other public entities which
utilize their annual budget, an enterprise shall pay to the Government
dividend within seven months following the end of the financial year. 60 The
relevant laws concerning taxes and duties are applicable to enterprises 61
sometimes raising the issue whether the government should tax itself. The
accounts of each enterprise shall be audited by external auditors appointed
by the supervising authority.62 All these duties are incidental to the
commercial aspect of public enterprises which are not imposed on other
government institutions.
2.2 Corporations
In US literature, the word ‘corporation’ merely represents a legal entity
separate and distinct from its stockholders. The word mainly distinguishes
the entity from partnerships. In the Ethiopian context, however, various
public enterprises use the word ‘corporation’. In the earlier years, there
were countries where the designation of a public enterprise as a ‘corporation’
usually meant being “clothed with the power of government, but possessed
with the flexibility and initiative of private enterprise.” 70 The choice of this
form is basically driven by the need to cloak the entity with autonomy so as
to reduce interference in its operation. It can operate basically as a private
entity but at the same time it has support of the government. But this virtue
of the corporation form is said to have become a fiction as the organizational
autonomy of corporations have been severely diluted in many countries.71
One cannot easily figure out why an enterprise owned by the state is
formed as a corporation. The term ‘corporation’ refers to a specific legal
form of organization of persons and material resources, chartered by the
state, for the purpose of conducting business.72 It is submitted that a
corporation has four essential features, namely corporate body established
by parliament, separate legal entity, government ownership and financial
independence.73 Others add to this that employees are not civil servants.74
Under Ethiopian law, the essential features of corporations are shared by
other public enterprises. They are established by regulation and are governed
by Proclamation No. 25/1992 in the same manner as other public
enterprises. It is, thus, imperative to inquire into their peculiarity which
warrants their designation as corporations. Comparing the establishing
regulations of corporations and other public enterprises, one can understand
that they are crafted in line with Article 6 of Proclamation No. 25/1992.
In most establishment regulations, the corporation is empowered to issue
bonds and borrow money from international financial sources. 75 Even if it is
a power consistently conferred on corporations, it cannot be concluded that
all corporations or only those which are designated as such do have the
enterprises?
power to issue debt instruments. One can find enterprises which are not
designated as corporations even if they have this power 76 while there are
corporations which are not empowered to do so.77
The usage of the word ‘corporation’ in relation with entities that hardly
fall under public enterprises creates further ambiguities regarding their
salient features. For example, the Ethiopian Broadcasting Corporation
(EBC) is established under Proclamation No. 858/2014 to broadcast main
and current issues happening in the country and abroad as well as
educational and entertainment events on the radio, television and website.
This is a commercial activity under Article 5(14) of the Commercial Code.
However, it is not organized as a business entity but as “an autonomous
government institution having legal personality and rendering public
service.78 Although the public dimension of its function is explicit, the
corporation does not have the characteristics which justify the classification
of its activities as business undertakings. First, EBC does not operate based
on its capital, and it rather has budget from public revenue, supportive
budget and other sources.79 It is not necessarily expected to make profit as it
benefits from annual budget allocation. Its employees are governed neither
by the civil service law nor the labour law of the country. The House of
peoples’ Representatives is empowered to issue regulations for the
administration of employees of the corporation.80
However, Ethiopian Broadcasting Corporation is subject to the same
financial and procurement system as public enterprises.81 Its books of
accounts and financial documents are audited annually by the auditor
general.82 As it is not a public enterprise, its establishment proclamation
makes selective reference to certain rules applicable to public enterprises.
Hence, an entity which is not a public enterprise may, as in the case of EBC,
be referred to as a corporation thereby causing more uncertainty regarding
the use of the term.
77
Ethiopian Railway Corporation' Establishment Council of Ministers Regulation
No. 141/2007.
78
Ethiopian Broadcasting Corporation Establishment Proclamation No. 858/2014,
Federal Negarit Gazette, 20th Year, No. 49, November 2014, Art. 3(1)
79
Ibid, Art. 14.
80
Ibid, Art. 17.
81
Ibid, Art. 15.
82
Ibid, Art. 16(2).
Under Ethiopian law, the term public corporation does not represent a
distinct legal form with its own attributes. Notionally, however, corporations
are a response to the need for a distinct type of “industrial and commercial
enterprises of a major and complex character conducted under the auspices
and the financial responsibility of the state, or of other public authorities”
which led to the development of a distinct type of public enterprise known
as public corporation.83 It is with this understanding that the corporation
form is opted. For instance, the transformation of the Ethiopian Electric
Light and Power Authority to the Ethiopian Electric Power Corporation in
1997 was justified by the need to commercialize and decentralize the
entity.84 But it remains to be examined whether the establishment of a public
enterprise as a corporation has any legal import. Given that they are subject
to the same governing law as other public enterprises and that one finds
entities which are not purely commercial designated as a corporation, it can
be concluded that those enterprises designated as corporation do not
constitute a distinctive legal form or category.
88
As can be clearly understood from article 3(4), they are applicable until the
agency (now authority) starts transferring shares of the company.
89
Supra note 74.
90
Art. 307(1) and 311 Com. C. According to article 5(4) (b) of Proc. No. 25/1992
directors are to be appointed by the supervising authority.
91
Com . C, Art. 315.
92
The authorities given to the general meeting of shareholders is to be exercised by
the Supervising Authority. But as there will be no meeting, the provisions
governing shareholders meetings are not applicable. article 5(4)(a) of Proc. No.
25/1992.
93
Com . C, Art. 347.
94
Com . C, Art. 349; See article 5(4)(c) of Proc. No. 25/1992.
3. The Raison d’être of Public Enterprises and
Comparative Experience
The share of public enterprises in the GDP of high income, middle-income
and Least Developed countries is respectively 8%, 9% and 14% while their
share in investment constitutes 13%, 17%, and 28% respectively.95 The
presence of public enterprises transcends all economic settings, and it can be
observed that they have more significance in economies of developing
countries.
It is crucial to examine the reason why states establish public economic
enterprises irrespective of variation in political ideology and economic
realities. For some scholars, public enterprises continue to be an enduring
phenomenon in a society for two reasons: that the economic activity of a
government is a function of its greatly increased responsibilities for the life
and welfare of their citizens, and that the complexities of the industrial and
commercial activities undertaken by the government demand some
permanent legal and administrative structure.96
There are other reasons that may justify the decision to establish public
enterprises. One of the reasons can be the need to correct market failure such
as inadequate private supply of goods and services and improving
competition. The second reason is altering the structure of pay-offs of the
economy by redistributing the benefits received by particular individuals or
groups. The other reason is facilitating long–term economic planning by
which enterprises will have a developmental role. Finally, departure from
capitalist economic policies based on certain versions of socialism can put
important industries into government hands as public enterprises.97 The
raison d'être for public enterprises thus varies depending upon the country,
sector, epoch or other factor98 under consideration.
Numerous public enterprises were created in various countries
particularly after World War II, to address market deficits and capital
shortfall, promote economic development, reduce mass unemployment
and/or ensure national control over the overall direction of the economy. In
the course of their operations, however, rising corruption, management
inefficiencies, overstaffing, inflation and rising current account deficits
indicated the downsides of public enterprises as key players in economic
development. Consequently, large-scale privatization of public enterprises
was undertaken in the 1980s and 1990s, with the vital support of multilateral
financial institutions.99
This trend has again been revisited since 2000, because it was realized
that the state can pursue policies that can address the downsides of public
enterprises (without necessarily privatizing them) and, in effect, prudently
play its critical role in investment and development. Hence, the philosophy
of public enterprises has changed by relieving public enterprise policy from
political ideology and blending it with effectiveness and efficiency toward
meeting national needs and the satisfaction of the people's wellbeing.100
The debate whether public enterprises are vehicles of development or
impede development is still underway.101 The recent global economic crisis
has weakened the arguments against public enterprises and the pursuits of
reducing the role of governments in the economy. It is contended that “when
governments in the United States, the United Kingdom and others had to
rescue gigantic mortgage corporations, huge banks and complex insurance
firms regardless of the financial impact on the budget and the debt, it would
seem a waste of time to explain why the State is sometimes forced to
intervene in the market to save it from its own excesses”.102
Even if the economic crisis seems to have redeemed public enterprises,
recent data indicate that “the performance of public enterprises has been
shockingly bad”.103 Yet, it is maintained that in the face of inefficiency,
government control and lack of professionalism, the continued existence of
public enterprises is justified by higher objectives of development of capital
intensive sectors, balanced regional development, increasing employment
opportunities, preventing concentration of economic power and research and
development.104
Extremist political and economic theories which promoted absolute
abstention of the state105 from economic interventions or the ones that
supported excessive state control have been found to be imprudent. Current
discourse on public enterprises rather focuses on the dominance (and not the
overall exclusion) of one or the other sector and on the factors that
determine how the balance can be struck. It is in the context of these issues
that the role and scope of public intervention remains unsettled. The
intervention can be in the form of policy-making, implementation and/or
direct participation in production of goods and services through state-owned
enterprises. With regard to the last alternative, the degree of government
intervention constitutes the crux of the policy debate on public enterprises.
One of the factors to be taken into account in making the choice is the
efficiency of a given enterprise form in the allocation and management of
resources toward optimal productivity and competitiveness. In the absence
of conclusive empirical evidence, the perception is that inefficiency is a
general feature of public enterprises.106 This contention is buttressed by the
absence (or inadequacy) of profit motive, financial incentive, lack of
pressure to optimize returns, and immunity from competition and takeover
which are considered to be hallmark of public enterprises.107
Privatization is deeply embedded in the ideological perception which
considers the private sector as inherently superior to the public sector. 108
When public ownership is viewed as inefficient, unresponsive, or as
misallocation of public resources, privatization may be expected to provide
corrections to these problems. 109 Some even propose that privtization has a
potentially high impact on poverty alleviation 110 and argue that developing
countries will benefit from the reduced role of public enterprises. Motivated
by the evidence on the failures of state-owned enterprises, governments in
more than 100 countries have undertaken privatization programs since the
mid-1980s111 and many of them adopted the programmes as a solution to
inefficiency of the enterprises.112
suggest large scale privatization as a pragmatic and far-sighted choice. 113 As
a substitute solution to the inefficiency of public enterprises, some countries
have embarked on corporatization and commercialization of public
enterprises instead of privatizing them.
4. Ethiopia’s Laws on Public Enterprises: Role and Significance
Generally, a public enterprise comes into being either through nationalization
or through creation by government of an enterprise de novo or through
government investment in a joint venture.122 In Ethiopia as well, the
emergence of public sector enterprises coincided with the modernization of
118
the state, measures of nationalization and arguably joint investment which
can be challenged whether that gives rise to a public enterprise.
A close examination of the evolution of public enterprises in Ethiopia
shows that a great number of the reasons discussed above have been invoked
upon the establishment of public enterprises. The role of these enterprises in
the country’s economy is contingent upon the policy adopted by the
government in a specific period of time. Their significance and mission vary
with the policy of a particular government or even with the alteration of
policy of a government.
During the imperial time, trade and industry had insignificant role in the
national economy123 in addition to the fact that the social and economic
situation could not justify government intervention. Even in the few cases
where the government opted to have a role, 124 conceptual distinction was not
made between public enterprises and departmental undertakings. In fact, the
concept and policy of public sector enterprise was non-existent. Of the few
public enterprises during this era, Ethiopian National Corporation can be
mentioned as the first parastatal entity which was set up in 1941.125
After the 1974 revolution, public enterprises were methods of promoting
the socialist ideology and they were products of what is referred to as
ideological commitment.126 The Dergue vowed to eradicate what it called
“idolatry of personal gain” letting the private sector to engage in activities
which were not harmful to the interest of the society so as to give
preeminence to the interest of the community. 127 Thus, economic activities
were transferred to exclusive government ownership if the activities were
exclusively reserved to the Government; or majority shares were transferred
if they were to be carried out jointly by the government and a foreign
investor.128 Consequently, at the end of the 1970s, two hundred large public
enterprises were operational which accounted for 20% of the country’s
economy.129
The principle that means of production and distribution should remain in
the hands of the government was realized through public enterprises
significantly diminishing the role of the private sector. Public enterprises
were organized in accordance with Public Enterprises Proclamation No.
20/1975.130 The proclamation was enacted to bring all matters relating to the
coordination and operation of public enterprises under the overall direction
of a responsible Minister.131 The Ministry of Natural Resources
Development was empowered to establish and confer legal personality on
public enterprises to engage in agricultural, industrial, commercial, public
service, hotel, tourist service and mining activities. 132 It remained the main
form of carrying out economic activities in the country until 1990. Public
economy and the need to encourage the expansion of the private sector.136
On the other hand, the policy documents issued by the ruling party
underscore that one of the two reasons which validate a developmental state
policy in Ethiopia is the rectification of market imperfections by effectively
intervening in selected sectors.137 According to the policy, this can be
achieved through a big government 138 which justifies the size of government
and dominance of the public sector.
Even though the laws in force express their objectives toward reducing
the participation of the government in the economy, we can witness the
establishment of mega public enterprises whose place in the economy can be
easily felt. This appears to be a mirror image of the dilemma the World
Bank has, at different times, encountered in this respect:
World Bank and its approach to public enterprises swung as much as any
perhaps. We were strong supporters in the sixties and seventies of their
creation and of heavy investment programs both in infrastructure and
also, of course, in industry. From the mid eighties to the end of the
nineties we were among the great advocates for privatization, but more
than that; in the case of infrastructure, there was a belief that the all state
needed to do was to get the policy right, and private investment would
Ethiopia’s economic policies during the past twenty years indicate change of
role and significance of public enterprises. The ambivalence of the state
regarding its role in the economy can be inferred from the privatization
effort, on the one hand and retaining the big enterprises and the burgeoning
of new ones, on the other. The policy alluded to in the various laws
expresses the desire of the government to pull out of the economic sector so
long as the market is viable. For example, Proclamation No. 25/1992
envisions broader private sector with reduced number of public enterprises
which compete with the private sector. With a view to ensuring the
increasing share of the private sector in the economy, several laws were
enacted in order to address the need to change the role and participation of
the state in the economy and to encourage the expansion of the private
sector.140
On the other hand, starting from the adoption of developmental state
economic model, several public enterprises have been formed and are being
formed side by side with tiptoeing privatization. The Government’s
developmental state policy confers an activist role on the state in addressing
market failures by filling gaps in areas where adequate private sector supply
response and capacity is lacking. 141 Consequently, mammoth enterprises are
set up by the state, in almost every sector of the economy, from trade to
engineering.
Currently Ethiopia has gone a long way in implementing the five year Growth and
Transformation Plan (GTP) which is ambitious. The total investment required
for GTP is estimated at ETB 1.26 trillion (US$77 billion) 45.1% of which will
be contributed by state enterprises. See African Development Bank
economy shows that the public sector is expanding. The growing activities
of state enterprises is best “captured by the five-fold rise in their borrowing
from the banking system, which is up from Birr 8 billion about five years
ago to an estimated Birr 42 billion in 2010/11 fiscal year, and roughly two-
thirds of all banking system credit is now directed to the public sector”.143
Of the nearly 45 billion Birr credit extended in the year beginning June
2012, 83% went to finance state enterprises.144
147
In fact one of the considerations that governments must take into their
development plans is the optimum mix of public sector, private sector and mixed
sector. Supra note 1, p.18; In response to the ever increasing dominance of
public enterprises, voices are heard agianst the expansion of public sector
entrprises one of which goes as “breeding public enterprises cannot help to
realise the envisioned growth, as the state has its own limitations. Besides,
Summery
State or public ownership is a very important factor in determining state
ownership even though there is no consensus on the quantum of investment
which renders an enterprise public. Recent Ethiopian laws include those
enterprises in which the government invests partially thereby deviating from
the earlier approach which required total ownership by the state. Partial
investment can range from 99% to 1% and it is not certain whether it can be
said that the public has stake in enterprises where the share of the
government or public authorities is nominal. It is, therefore necessary to
rectify the piecemeal approach to the definition of public enterprises by
undertaking a holistic approach to the issue and by coherently stipulating the
core attributes of a public enterprise in Ethiopia.
As highlighted in the preceding sections, the application of some laws
depends on the determination of the scope of the term, ‘public enterprise’.
This is more so in criminal laws which may render officers of such
enterprises criminally liable (under specific laws as in the case of
corruption) contingent upon the classification of an entity into a public
enterprise. In those laws it is simply stated that partial investment is enough
to make an enterprise public. Another challenge that needs to be addressed
relates to gaps in the law. A case in point in this regard is the federal system
which has resulted in the establishment of enterprises by the regional states.
These enterprises are not accommodated in the existing legal framework and
questions pertaining regional state enterprises are not answered because of
the legal lacuna.148
With regard to form, we find entities which are organized in the form of a
share company and governed under the Commercial Code while they are
also considered as public enterprises. It follows that strictly speaking, the
organizational form of the entity does not necessarily determine the type of
enterprise. One of the elements unique to public enterprises is that they are
subject to a special legal regime because of the peculiarity of the enterprise.
But, some of these laws, as observed in the preceding sections, include
entities which are not governed by the special law under consideration.