Local self-government (Germany)

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The local self-government is a practically important example of self-government , ie the transfer of administrative tasks to legally independent entities to the parties concerned to facilitate the self-responsible design.

Chain of legitimation of direct and indirect state administration as well as self-administration at federal, state and local level

In the Federal Republic of Germany, municipal self-administration is carried out by the municipalities as regional authorities under public law . The community citizens elect a representative ( community council ) and, depending on the state, also the mayor . The municipal council decides on fundamental matters of self-administration and controls the administration. The community representatives are volunteers. The following principle applies to the management of the administration: In communities with fewer than 8,000 inhabitants, the mayor is a member of the community council and also works on a voluntary basis. Larger municipalities and districts, on the other hand, are run by one or more full-time municipal electoral officers.

Local self-government is protected in Article 28 (2) of the Basic Law and in most state constitutions by the local self-government guarantee (see below). Responsibility includes all tasks that are rooted in the local community (right to determine tasks). There is, however, no mandate for supra-local tasks or general political activity: the municipality is not a private association of citizens, but part of public authority, more precisely a part of the executive , which is only allowed to act within its competencies.

In addition to the municipalities, local authorities are also municipal associations such as B. circuits or counties , Landschaftsverbände and special regional organizations (eg. As the RVR ).

Historical development

In Germany, the historical roots of local self-government lie in the Reformation . In principle, all tribal societies and - if they already existed - all village communities east of the Rhine were economically self-sufficient and politically autonomous until Christianization . In the course of Christian proselytizing , restructuring began, combined with the introduction of feudalism . Many villages and towns, especially in northern Germany, were able to retain extensive self-determination even in the Middle Ages. To be emphasized are communities in so-called peasant republics as well as cities with their own jurisdiction, for example according to Lübschen or Magdeburg law .

After the publication of Luther's 95 theses , profound social changes began in Germany. With the Reformation charges were not directly benefit from the priest, but the parish . The church should only be indirectly involved as a teacher and servant, through instruction and admonition in the love of God, but no longer in the administration of the congregations. This led to fiscal disputes and the fragmentation of original church districts , including in Catholic areas. The reason was mainly that court district and diocese were not identical. Spiritual jurisdiction was abolished and all disputes were heard in secular courts. Were introduced community funds and the establishment of the parish electoral law in favor of a parish line , the so-called church jury . The parish suffrage brought about the adaptation of the church to the neighborhood, that is, communal structures. They guaranteed the congregations the free right to elect and dismiss a pastor. In return, the communities were obliged to pay for the poor and schools .

A nationwide creation of administrative community structures did not take place in Germany until the beginning of the 19th century. On the basis of French municipalities , all municipalities in the German territories ruled by Napoleon were given the right to self-government, combined with a guarantee of legal and financial autonomy . The municipalities in Germany retained this sovereignty until 1918. Far-reaching changes in the traditional self-government structure occurred in Germany in the course of the Erzberger reforms ; they made the states and municipalities largely dependent on tax allocations from the state.

The co-ordination of the communities in the Third Reich , on the other hand, was a temporary phenomenon. During this time, not only was local self-government preserved, the National Socialists made it mandatory from then on. Since the introduction of the German Municipal Code in 1935, all residents in Germany can in principle be obliged to participate in the self-administration of their municipalities on a voluntary basis. After the Second World War , significant components of this set of rules were retained as state law. In particular, the regulations on self-administration still form the substantive basis for the municipal ordinances of the individual federal states .

Current condition

Constitutional guarantee of local self-government

Article 28, Paragraph 2, Sentence 1 of the Basic Law (municipality self-government guarantee) gives the municipalities responsibility for all tasks that are rooted in the municipality's coexistence. This presumption of responsibility makes individual special competence titles superfluous: municipalities are all-competent at the local level (universality principle); they have the right to determine tasks. Other local authorities, especially rural districts , do not have comprehensive responsibilities, so their tasks are assigned individually.

The community in the state structure

Local self-government leads to state decentralization. Despite its designation as vertical federalism it does not lead to a constitutional tripartite covenant - countries - communities because the communities as self- administration skörperschaften part of the executive branch are. Because of the legal independence of the hierarchical administration, one also speaks of indirect state administration. For this reason, the local council is not a parliament , but an administrative body.

The tasks of the community

To structure the self-administration of the municipalities, the federal states have issued municipal regulations (and district or district regulations). These are regularly based on the earlier uniform German municipal code (DGO). In practical administrative execution, the regional authorities often perform delegated state tasks in addition to their own self-administration tasks.

Some municipal ordinances have not adopted this historically inherited dualistic task structure (own - state tasks) because of the distancing from the state expressed therein. According to the so-called Weinheim draft of 1948, they instead follow a monistic understanding and differentiate the comprehensively understood own tasks into non-instructional and instructional tasks. It is doubtful whether there are essential differences apart from the different terminology.

A distinction is made between individual (or voluntary; example: theater, sports facilities ), compulsory (or mandatory tasks not subject to instructions; example: schools, cemeteries, municipal council elections ) and commissioned matters (or compulsory tasks according to instructions - example: building supervision, registration management, danger prevention ).

Voluntary and compulsory tasks are covered by the municipalities' guarantee of self-government. Contract matters , on the other hand, are original tasks of the Federation or the Laender, which the municipalities have assigned to carry out.

The community can take on and regulate voluntary tasks at will. On the other hand, she has to do mandatory tasks; however, the design is left to her. However, as part of the public administration, the municipality is also bound by law and statute, Article 20 (3) of the Basic Law. To ensure this, there is legal supervision in the country. Issues of instruction, however, must be carried out in accordance with the instructions of the higher-level authorities. That is why there is comprehensive technical supervision here .

Problems of local self-government

In the administrative practice of the federal states, there is a noticeable tendency to zone tasks up by law, i.e. to withdraw them from the municipalities. The Federal Constitutional Court has drawn a line here in constant jurisprudence and stipulated that the regional authorities must retain a core area of ​​their own competencies. Which includes:

On the other hand, communities are also given new tasks. Not least because of additional mandatory and commissioned matters without sufficient cost coverage by the federal and state governments, many municipalities have become financially incapable of action, so that they can in fact only make limited use of the possibilities of municipal self-government. As part of the federalism reform , the Basic Law was expanded to include a wording according to which federal law may not impose any additional tasks on the municipalities (new version of Article 84, Paragraph 1 and Article 85, Paragraph 1 of the Basic Law).

Legal sources in the state constitutions

In the states of Berlin and Hamburg , the state consists of only one municipality. There is therefore no municipal self-government guarantee there.

See also

literature

  • Evamaria Engel: The German city in the Middle Ages . Albatros, Munich 1993, ISBN 3-491-96135-1 .
  • Markus Thiel : The Prussian town order from 1808 . In: Speyer workbooks . tape 123 . German University of Administrative Sciences , 1999, ISSN  0179-2318 , DNB  959026053 .
  • Gisela Florstedt-Borowski: Local decision-making processes in the area of ​​tension between the representative body and the administration. Frankfurt / M. 1995, ISBN 3-631-48806-8 (pol.-scientific dissertation, Göttingen 1994).
  • Christopher A. Schmidt: Immediate community democracy in central and southern Germany during the Weimar Republic. An examination of procedure and practice . Nomos, Baden-Baden 2007, ISBN 978-3-8329-2607-6 (also legal dissertation Hannover 2006).
  • Jan H. Witte: Immediate community democracy of the Weimar Republic. Procedure and extent of application in the northern German states . Nomos, Baden-Baden 1997, ISBN 3-7890-4809-7 (also jur. Diss. Hannover, 1996).
  • Hans-Uwe Erichsen, Richard Weiss: Local self-government and state organizational requirements . Carl Heymanns, Cologne 1999, ISBN 3-452-23231-X .
  • Alfons Gern: German municipal law . 3. Edition. Nomos, Baden-Baden 2003, ISBN 3-8329-0127-2 .
  • Heinrich Heffter : The German self-government in the 19th century. History of ideas and institutions . 2nd Edition. Koehler, Stuttgart 1969, DNB  456933859 .
  • Volker Mayer: Local self-government in the eastern German states . PCO, Bayreuth 2001, ISBN 3-931319-87-3 ( plus dissertation at the University of Bayreuth).

Web links

Individual evidence

  1. ↑ Roger Sablonier: The village in the transition from the high to the late Middle Ages. In: Hans Fenske , Werner Rösener , Lothar Zotz (eds.): Institutions, culture and society in the Middle Ages. Festschrift for Josef Fleckenstein . Sigmaringen 1984, pp. 727-745
  2. ^ Günter Püttner: Handbook of municipal science and practice, Volume 1: Basics and municipal constitution. Springer-Verlag, 2013, p. 90 ff.
  3. ↑ cf. DGO from 1935 § 1 sentence 2 ff
  4. ↑ cf. DGO from 1935 § 23
  5. ↑ http://www.verfassungen.de/de/de33-45/gemeindeordnung35.htm Original version of the DGO with an introduction marked in red about continued validity as state law in accordance with Article 123 of the Basic Law of May 23, 1949
  6. ↑ Tobias Faber: Corporate law obligations for members of the supervisory board of local municipal companies in the area of ​​conflict with the Hessian municipal constitutional law. Lang Verlag, 2010, p. 30.