Abstract
The fundamental tendency of socialisation — the transfer of certain categories of property and economic activity to the community and their utilisation in the collective interest — represents a formula which a great number of contemporary States do not challenge in principle.1 The controversy in reality relates to the extent of the practical application of socialisation. There is indeed a considerable difference between giving the State the responsibility for running the railways and issuing bank notes — functions which are now discharged by the State in almost all countries — and the complete taking over by the State of all economic life, as in the USSR. A number of intermediate situations are conceivable between these two extremes. As we have already seen, nationalisation has today been effected either completely, so that the whole of production and exchange becomes a function of the State, or in substantial and predominating measure in the economy, or finally, in a selective form, only separate undertakings or branches of production and exchange being affected. Whereas complete nationalisation so far exists only in the USSR, partial nationalisation is to be found in countries with the most diverse social and economic structures.
“Paradoxical though it sounds, individualism and socialism are not necessarily opposites.”
J. Schumpeter, Kapitalismus, Sozialismus und Demokratie, Berne, 1950, p. 273.
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References
E. Westhoff, System des Wirtschaftsrechts, Leipzig, 1926, pp. 21, 22: “Individualism and Collectivism are two fundamental motives of human nature and, as such, as old as Man himself.”
Perroux, Les Nationalisations. 1926, p. 351.
L. A. Lunz, Private International Law (in Russian), Moscow, 1949, p. 198.
Heaton and Johnson, op. cit., p. 24.
In Rivero’s Réflexions sur le Fonctionnement des Entreprises nationalisées op. cit., p. 399 et seq., the following assessment is given for France: “The nationalised undertakings have been in existence for ten years....It is now proved that the capitalist motive, or more exactly, what theory regards as such, the search for personal profit, is not essential to the working of a large scale undertaking; without shareholders hungering after dividends, without directors hungering after fees, the nationalised undertakings have been able to develop their productivity, extend their field of action, and watch over their production costs. Far more, it has been observed that, in an economy where the spirit of self-preservation has too often taken the place, in the psychology of the private entrepreneur, of the spirit of enterprise, the nationalised sector has sometimes seemed to be the last haven of the traditionally “capitalist” virtues, boldness, the desire for large scale achievements and dynamic power.”
Sarraute and Tager, op. cit.. p. 528.**
See above pp. 53–55; Katzarov, L’Etat commerçant, op. cit., p. 51.
Schumpeter, op. cit., p. 366.
For example, most nationalisations effected in Eastern Europe.
For example, the nationalisation of the banks and insurance companies in France and the steel industry in the United Kingdom.
See above, pp. 165–168; Chenot, Les Entreprises nationalisées, op. cit., p. 7.
Perroux, Le Capitalisme, op. cit., p. 121.
Savatier, Les Métamorphoses, op. cit., p. 82.
See above, p. 191 et seq.; Vedel, La Technique des Nationalisations, op. cit., p. 97.
Article 7/2 of the Constitution: “Every collective-farm household shall have the personal occupation of a small plot of land appurtenant to the farmhouse, and shall have over such land the full possession of an ancillary economy...”
Article 10 of the Constitution: see above, p. 109.
Labour party, Speakers’ Handbook, op. cit., p. 120: “As long as there is a mixed economy, there must be a policy for private industry.”
Lyon-Caen, Les Diverses Formules, op. cit., p. 45.
Katzarov, Nouveaux Aspects, op. cit., p. 440. 29 Katzarov, Nouveaux Aspects, op. cit., pp. 440–442.
These questions were discussed more fully in the preceding section; see above, p. 179 et seq. See also the earlier discussion of étatisation, p. 150 et seq.
Vedel, La Technique des Nationalisations, op. cit., p. 97.
For example, the Draft Civil Code in the USSR, the new Civil Code of 25th October, 1950, in Czecho-Slovakia, and the new Act of 22nd November, 1950 on obligations and contracts in Bulgaria.
32a Pp. 210–211.
Bonnard, op. cit., p. 220.
Chenot, Organisation économique, op. cit., p. 361.
Katzarov, L’Etat commerçant, op. cit., p. 20 et seq.
On this problem, see also Lyon-Caen, Contribution à la Recherche, op. cit., p. 577 et seq; J. Van Ryn, Autonomie nécessaire et Permanence du Droit commercial, Revue trimestrielle de Droit commercial, 1953, No. 3, p. 565 et seq.
Lyon-Caen, op. cit., p. 582.
See below, p. 268 et seq.
Gähler, op. cit., p. 375. The nationalised undertakings have a hybrid legal character which imposes on them a new and hybrid organisation. The undertakings operate under the rules of private law but are nevertheless linked with and subject to the administration. The phrase “coordination and subordination” seems appropriate in this new situation.
See above, pp. 180–181.
The Bank of England’s character as the central issuing bank was not altered by nationalisation. See above, p. 180.
Section 1 (1) of the Coal Industry Nationalisation Act, 1946, imposed on the Board the following duties: “(a) working and getting the coal in Great Britain to the exclusion... of any other person; (b) securing the efficient development of the coal-mining industry; and (c) making supplies of coal available,...in such quantities and at such prices, as may seem to them best calculated to further the public interest in all respects...”
S.2 of the 1946 Act. The Minister was required to appoint the chairman and members “from amongst persons appearing to (the Minister) to be qualified as having had experience of, and having shown capacity in, industrial, commercial or financial matters, applied science, administration, or the organisation of workers” [s.2 (3)].
S.3 (1) of the 1946 Act: “The Minister may, after consultation with the Board, give to the Board directions of a general character as to the exercise and performance by the Board of their functions in relation to matters appearing to the Minister to affect the national interest, and the Board shall give effect to any such directions.”
S.3 (2), (3), and (4).
Ss. 26–31.
See Robson, op. cit., pp. 78–90. Robson describes the National Coal Board as ‘the high-water mark of legal centralisation’ (p. 78). It is very unlikely in fact that the divisional organisation would ever be abolished: the recent trend has been for more powers to be delegated to the area boards (Robson, p. 79).
See Robson, op. cit., pp. 90–95.
S.1 of the Electricity Act, 1947.
S.3 of the Act of 1947.
Ss. 5 and 6 of the Act of 1947.
See the Electricity Act, 1957.
See the Transport Act, 1947, ss. 3 and 5.
See, e.g. the Transport Act, 1953, which provided for the abolition of the Railways Executive and the creation of regional railway boards.
For the background to the Act, see Robson, op. cit., pp. i–xviii.
Gas Act, 1948, and Robson, op. cit., pp. 108–110. Robson states, “Gas supply is decentralised to a far greater extent than these other industries. The twelve Area Gas Boards are almost autonomous bodies as regards the manufacture and supply of gas” (p. 108).
See below, pp. 254, 257.
See below, pp. 216–217.
Article 4 of the Act.
Article 11 of the Act.
Articles 12–15 of the Act.
Article 12 of the Act.
Article 13 of the Act.
Among others, Article 13 (7): “It shall be consulted by the Minister of National Economy on general credit policy, with a view, in particular, to financing the national reconstruction and economic development plan and import and export plans.”
Article 2 of the Act: “The nationalised mineral fuel mines shall be managed by national public establishments of an industrial and commercial character with legal personality and financial autonomy, namely (1) a central public establishment under the name of Charbonnages de France, which shall act throughout the territory, and (2) distinct public establishments under the name of “les Houillères de...” set up in each coalfield by Decrees which shall delimit their respective spheres of activity”. See also Robson, op. cit., p. 89.
Article 4 of the Act.
Article 3 of the Act.
Articles 21 and 22 of the Act.
Rivero, Les Nationalisations, op. cit., No. 367 et seq.; Gendarme, op. cit., p. 2 et seq.
Rivero, op. cit., No. 747 et seq.
See above, p. 183 et seq.
At present the Act of 1st November, 1955, on national undertakings and certain other economic organisations.
P. Stainov, Administrative Law (in Bulgarian) Sofia, 1949, p. 177.
Stainov, op. cit., p. 178.
Published 3rd June, 1948; see above, p. 56.
Section III, Articles 12–36 of the Act.
Article 19 of the Decree.
Article 32 of the special regulation of 15th January, 1946, on the constitution of nationalised undertakings.
Article 32/2 of the regulation: “Each undertaking shall be attached to a central body, and in the case of Slovakia, to a regional body.”
Articles 35–37 of the regulation.
Article 21 of the regulation.
Article 17 of the regulation.
Article 16 of the regulation.
Article 38 of the regulation.
Article 38 of the regulation.
Article 20 of the Fundamental Law.
Article 23 of the Fundamental Law. 98 Article 3 of the Fundamental Law. 94 Article 2/1 of the Decree.
Article 1/1 of the Decree.
Article 2/2 of the Decree.
Article 22 of the Act.
Article 8 of the Act.
Article 22/2–4 of the Act.
Article 1 of the Decree.
Article 5 of the Decree.
Article 11 of the Act.
See above, p. 184.
Levin and Karass, op. cit., p. 293.
Levin and Karass, op. cit., p. 293.
Levin and Karass, op. cit., pp. 293–294.
Bratus, Subjects of Civil Law, op. cit., p. 5 et seq.; Katzarov, L’Etat commerçant, op. cit., pp. 22–24.
For the terminology adopted in the USSR, see Levin and Karass, op. cit., p. 293. For terminology adopted in Bulgaria and the other Eastern European states, see Stainov, op. cit., p. 177.
See details in the following section, p. 244 et seq.
See above, p. 179 et seq.
Lyon-Caen, Les Diverses Formules, op. cit., p. 43.
See above, p. 194.
Burckhardt, Einfuhrung, op. cit., pp. 136–137.
Waline, Travaux de l’Association Henri Capitant, Vol. II, Paris, 1947, p. 229.
A. M. Neuman, op. cit., pp. 242–245.
Labour party, Fifty Facts on Public Ownership, p. 47.
C. Celier, op. cit., p. 99.
See above, p. 211.
See above, p. 212 et seq.
For example, article 2 of the Decree of 20th June, 1951, concerning the commission for control in Bulgaria.
The idea of establishing or delimiting a special and autonomous power for control is not novel. It can be found in the theoretical conception of Sun-Yat-Sen.
E. H. Scammell, op. cit., p. 33.
For example, Article 13 of the Decree of 3rd January, 1947, for setting up State undertakings in Poland: “The principles for achieving the control of undertakings by higher authorities are laid down in their statutes”; Article 30 of Decree No. 199 of 12th May, 1949, for setting up and running State undertakings in Rumania: “State undertakings and economic organisations are to have internal regulations for their operation, to be approved by the director.”
For example, Article 14 of the Law for national undertakings of 20th July, 1948, in Hungary: “The appropriate minister is to supervise national undertakings.”
Labour party, Fifty Facts on Public Ownership, p. 46.
See below p. 246 et seq.
For example, Transport Act, 1947, s.4 (7): “... the Commission shall, as soon as possible after the end of each financial year of the Commission, make to the Minister a report on the exercise and performance by them of their functions during the year and on their policy and programme, and the Minister shall lay a copy of every such report before each House of Parliament.”
See below, pp. 253–254.
Labour party, Speakers’ Handbooky p. 75.
S. Voinea, op. cit., p. 138.
G. V., op. cit., p. 58: “The ‘person governed’ in the economy is not just the salaried official, but the consumer, in other words, the citizen himself.”
E. H. Scammell, op. cit., p. 43.
See above, p. 217 et seq.
S. Voinea, op. cit., p. 151.
B. Chenot, Direction et Contrôle, op. cit., p. 163; J. Rivero, L’évolution du Droit, op. cit., p. 66.
R. Gendarme, op. cit., p. 3.
Ib.
R. Gendarme, op. cit., p. 5.
G. Lasserre, op. cit., pp. 31, 42; R. Gendarme, op. cit., p. 9.
Labour party, Speakers’ Handbook, op. cit., p. 75: “...Boards should welcome suggestions and criticisms from the public; the Consumers’ Councils should be built up into powerful organisations for the protection of the consumer.”
Robson, op. cit., p. 243. On consumers’ and consultative councils generally in Britain, see Robson, pp. 243–262.
See section 7, Electricity Act, 1947, and section 9, Gas Act, 1948, and Robson, pp. 253–257. Section 5, Electricity Act, 1957 (and Part I of the First Schedule) made certain changes in the constitution and functions of the electricity councils following the reorganisation of the administration of the electricity industry as a whole. Thus the new Electricity Council largely took over the powers in relation to the consultative councils formerly exercised by the Central Authority, and it became possible for the consultative councils to make recommendations to the Central Electricity Generating Board. In the case of electricity and gas, the responsible Minister is now the Minister of Power.
See section 6, Transport Act, 1947 and Robson, op. cit., pp. 246–251. For transport, the relevant Minister is the Minister of Transport.
The principal changes made in respect of the consultative committees by the Transport Act, 1962, seem to be that (a) separate committees for goods and passenger traffic are no longer expressly provided for; (b) there is no longer a requirement on the Minister to take account of specific interests (agriculture, commerce, etc.) in appointing the committees — instead he must see that there are represented ‘interests likely to be concerned with matters within the competence of the committee’; (c) the committees are no longer able to discuss transport charges; (d) a special procedure is laid down whenever proposals for closing railway lines are made, according to which the consultative committee must give a hearing to affected interests; (e) recommendations are to be made by the consultative committees to the new boards set up in place of the British Transport Commission. See Section 56 of the 1962 Act.
See section 4, Coal Industry Nationalisation Act, 1946, and Robson, op. cit., pp. 244–246.
Robson, op. cit., p. 245.
See section 6, Iron and Steel Act, 1949, and section 1, Iron and Steel Act, 1953.
Robson, op. cit., p. 257.
Lassègue, op. cit., p. 129.
This tendency is expressed in paragraph 8 of the French Constitution of 1946: “Each worker participates, through his delegates, in collectively determining the conditions of work, as well as in managing the undertakings.”
As regards Britain, see Heaton & Johnson, op. cit., p. 52: “British plans included no provisions for labour representation on administrative boards.” See also Robson, op. cit., p. 217.
Labour party, Fifty Facts on Public Ownership, p. 47.
Vedel, La Technique des Nationalisations, op. cit., p. 99.
Veaux, op. cit., p. 87: “Here, the worker — rather more than the shareholder — appears to be the ‘citizen of the undertaking’.”
See above, p. 131 et seq.
Article 4 of the Constitution of the USSR; Article 12 of the Czecho-Slovak Constitution; etc.
See above, p. 109 et seq.
See above, p. 123 et seq.
For example, the Bulgarian penal code of 13th February, 1951, includes separately: ‘Chapter iii — Offences against socialist property (Articles 104–111)’; and ‘Chapter vi — Offences against personal property (Articles 181–203)’.
For example, the Bulgarian penal code of 13th February, 1951, makes the following distinction: whereas the punishment for offences against private property, immovable or movable, is imprisonment for up to three years (Article 189), the same offence against collective property is punishable by imprisonment of up to five years and, if the offence was committed by an employee entrusted with the property, up to fifteen years (Articles 105, 104).
Vassiljov, op. cit., p. 33; likewise, Article 181 of the above Bulgarian Penal Code prescribes up to three years’ imprisonment for ordinary theft, extended to ten if the property is collective (Article 104).
According to the period covered by the plan — ‘two-year’, ‘three-year’, ‘five-year’ etc.
Decree for legal protection (28th November, 1947) for the application of the State’s three-year plan.
Viz. Law for penal safeguards for the State’s two-year plan (13th November, (1947); details in I. Nenov, op. cit., vol. I, pp. 291 et seq.
Chapter 5, Articles 128–135 of R.S.F.S.R. penal code.
Article 128 of R.S.F.S.R. penal code — punishable by up to 2 years’ imprisonment.
Article 128/a of R.S.F.S.R. penal code — punishable by up to 5 years’ imprisonment.
Article 128/g of R.S.F.S.R. penal code — punishable by up to 5 years’ imprisonment.
Article 129 of R.S.F.S.R. penal code — punishable by at least 1 year’s imprisonment.
Article 131 of R.S.F.S.R. penal code — punishable by at least 6 months’ imprisonment.
For example, Article 11, ss. 2 of the Decree of 3rd January, 1947, for setting up State undertakings in Poland: “Management staff and workers in these undertakings are not state employees (officials).”
Formally prescribed by Article 14 of the Law of 18th September, 1948, for State undertakings in Bulgaria.
See above, p. 42 et seq.
See above, p. 120 et seq.
Lenin, The Cooperatives (in Russian), p. 5: “... nowadays, since the October revolution and independently of the national economic plan, the cooperative is becoming of outstanding importance.”
Saint-Alary, op. cit., p. 485.
Barnes, op. cit., p. 569.
Liefmann, op. cit., p. 166.
Lavergne, La Révolution coopérative, p. viii: “... the cooperative order will doubtless, from the second half of the twentieth century onwards, be destined to succeed to the decaying capitalist order.”
Lavergne, La Forme coopérative des Nationalisations, p. 75: “... The major French industries just nationalised could have been taken over by cooperatives instead of by the State.” See also pp. 69, 70.
de la Morandière, op. cit., preface, p. ix: “M. Bernard Lavergne has a more exalted approach to the problem. In his opinion, a solution could have been found in the cooperative concept and in setting up cooperative administrations, modelled especially on those working in Belgium since 1860.”
See above, pp. 5, 11 et seq.
Lavergne, La Forme coopérative des Nationalisations, p. 73, sees cooperation as the means of remedying these faults: “In this sort of society there is no more capitalist interest. Thus, in these bodies, social capital is truly wage-earning, while the profit is truly socialised.”
Lavergne, op. cit., p. 71.
Liefmann, op. cit., p. 167: “It is very important to know the limits of cooperatives; too firm a trust in the cooperative concept as a sort of cure-all is definitely no use to democratic economies with any aspirations”; Katzarov, Traité, op. cit., pp. 339–341.
See above, p. 234.
See above, p. 11 et seq.
Katzarov, Nouveaux Aspects, op. cit., p. 431 et seq.
In this way, the courses open to socialisation can be planned in complex detail — see, for example, Klabunde’s discussion: Das Hamburger Sozialisierungs-gutachten, quoted by Leverkuehn, op. cit., pp. 10–11 — see above, p. 156, note 145.
Katzarov, Nouveaux Aspects, p. 432.
Leverkuehn, op. cit., pp. 10–11 (782–783); Article 1(2) of Fundamental Law for State undertakings in Yugoslavia: “Only an undertaking which is entirely owned by the State will be considered a State undertaking.”
Saint-Alary, Eléments distinctifs de la Société coopérative, p. 504: “The cooperative is altruistic; it has no intention, unlike a capitalist company, of keeping its gains for a small number of people: it is meant for all who want justice and peace to rule our poor world;” Krakenburger, op. cit., p. 57.
Lavergne, Le Problème des Nationalisations, op. cit., p. 146.
Labour party, Fifty Facts on Public Ownership, p. 2: “And even then there is more than one form of public ownership — nationalisation is one, cooperation and municipal ownership are others.”
Labour party, Industry and Society, pp. 34–35.
Barnes, op. cit., p. 570.
Labour party, Industry and Society, p. 8: “These expectations... have been substantially realized”; p. 10: “The success of the mixed economy in the postwar years... is in itself a powerful vindication of our policies of public ownership and control”; about nationalisations in France — Chenot, Les Entreprises Nationalisées, p. 88: “Generally speaking, these undertakings have beaten records both of investment and technical success; their indexes of productivity are models.”
Ripert, Le Déclin du Droit, p. 210: “The history of nationalisation comes to a halt for the time being. The financial results were so disappointing that political ideology had to yield to economic difficulties”.
Lavergne, Le Problème des Nationalisations, op. cit., p. 141: “The cooperative’s administration does not fall into the mortal danger of handing over trade and industry to the State”.
Escarra, Manuel, op. cit., p. 566.
Gendarme, op. cit., p. 204.
See above, p. 200 et seq.
Perroux, Le Capitalisme, p. 120.
Article 153 of the Czecho-slovak constitution: “(1) The laws shall stipulate which economic fields and which economic or other securities are to be nationalised and how far”; article 2/a of the Bulgarian Law for nationalising private industrial and mining undertakings: “The Council of Ministers may, at a minister’s request, also nationalise other private industrial or mining undertakings or else free — partially or totally — from nationalisation undertakings which were nationalised in accordance with this law, should the interests of the country require”.
Droit social, 1950, no. 5, p. 180 — Les Offices et Entreprises publiques.
Gendarme, op. cit., p. 204.
Gendarme, op. cit., p. 212: “None of the major reports (Pellenc, Chalandon, Wahl, Lemoine) concludes that we must go back on our nationalisations.”
Iron and steel and long-distance road haulage in Britain. In Austria, there has been talk of eventually denationalising some nationalised concerns — Neue Zürcher Zeitung, 24th October, 1956.
See above, pp. 51–52.
See the government White Paper, ‘The Iron and Steel Industry’, Cmd. 8619, of 1952. See also Robson, op. cit., pp. 37–41.
Section 5 (1) of the Act: “The Board shall from time to time consult with such iron and steel producers and such representative organisations as the Board consider appropriate, with a view to securing the provision and use by iron and steel producers of such additional production facilities in Great Britain as may be required for the efficient, economic and adequate supply of iron and steel products.”
The annual reports of the Iron and Steel Board and the Iron and Steel Holding and Realisation Agency, which are public documents, give an outline of the developments in the industry since 1953. The Agency’s Annual Report for 1957–1958 (quoted by Robson, op. cit., at p. 38) stated that by 30th September, 1958, companies representing approximately 5/6 of the industry nationalised, in terms of value, had been disposed of. Out of 71 companies originally vested in the Agency, 49 had been sold to private owners, 8 had been transferred to other subsidiaries and one had been wound up, leaving 13 still in the ownership of the Agency.
Sections 1–15 of the 1953 Act. See also Robson, op. cit., pp. 49–51.
Sections 2 and 3 of the 1953 Act. Special provision was made in the Act (section 3 (3)) for enabling small units to be purchased.
Section 5 of the Act of 1953.
See Transport (Disposal of Road Haulage Property) Act, 1956, and Robson, op. cit., p. 50.
The present policy of the Labour party is that both of the denationalised industries must be renationalised: Labour party, Industry and Society, p. 57: “In the case of steel and longdistance road haulage industries... the case for public ownership remains as strong as ever. We shall accordingly restore public ownership in these industries”.
Bill for a law, proposed by M. Armengaud, a senator, relating to the State’s industrial activities and to public establishments of an industrial and commercial nature, and which aims at creating a national company for the management of public funds — Droit social, 1951, No. 1, pp. 1–9.
Armengaud, op. cit., p. 5.
Armengaud, op. cit., p. 5: “In this respect, our plan intends to transform the main public establishments involved, that belong by their activity to the competitive sector, into limited liability companies under ordinary law, in which the State will own an important share — a majority share if need be — while these companies conform to all the rules and conditions affecting such companies.”
Armengaud, op. cit., pp. 5–6: “... In order to put them indisputably on an equal footing with private concerns in the same field...”.
Armengaud, op. cit., p. 6.
Armengaud, op. cit., p. 7.
There has been discussion, in West Germany, about denationalising the Volkswagen car factory and the Howaldt naval shipyards. These two cases, in Germany, have provoked strikes by workers who showed themselves to be supporters of nationalisation: see N.Z.Z. — 27th January, 1958; Journal de Genève — 22nd May, 1958; La Suisse — 29th June, 1957.
This is why Scammell says, referring to denationalisation, op. cit., p. 53: “... Any attempt at denationalisation would be comparable to an attempt to unscramble an egg”.
Gendarme, op. cit., p. 205: “A policy of ‘denationalisation’ could not help arousing political and social turmoil... ‘denationalisation’ would run up against the opposition of the three groups of national unions, the C.G.T., F.O., and C.F.T.C., who could, if they thought fit, decide on united action”.
Jewkes, op. cit., p. 200 et seq.
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Katzarov, K. (1964). Place and Function. In: The Theory of Nationalisation. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-1055-4_12
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