Public purpose

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The public purpose is an indefinite legal term from German municipal law , according to which the municipalities are obliged to promote the well-being of their residents within the framework of municipal services of general interest .

General

As a public purpose, for example, the securing of the local needs of the municipality and its residents, the local trade and industry with public utilities and services (services of general interest), the provision of public infrastructure, the municipal settlement policy with the aim of providing housing for broad sections of the population are recognized as a public purpose Population, urban development and redevelopment measures, support for economic development, consideration of social concerns of the beneficiaries or the elimination of social and otherwise intolerable grievances. There is also a public purpose, even if it does not provide services of general interest; In the social constitutional state, the municipalities can take on numerous and varied tasks in the public interest , which are covered by the public purpose. It is sufficient that the activity for the public purpose is objectively necessary in the sense of reasonably required.

Legal issues

According to Article 28 (2) of the Basic Law , all local community affairs are protected. These are those needs and interests that are rooted in or related to the local community. The material criterion is the specific relation of the task to those needs and interests that are common to the community residents and result from their coexistence in the (political) community. Not only the area of ​​responsibility is guaranteed, but also the authority to manage the business independently in this area. This self-government guarantee needs to be designed and shaped by the legislature. The legislature is drawn by the core area of ​​the self-government guarantee, but it is not entirely free outside the core area either. The municipalities can fulfill these tasks within their constitutionally guaranteed municipal self-government either themselves or by setting up municipal companies with economic activities. What the municipalities see as promoting the general welfare of their residents is mainly left to the opinion of their governing bodies and depends on local conditions, financial possibilities, needs of the residents and other factors.

When examining the “public purpose” in the administrative process, the first thing that must be considered is which tasks the municipalities usually perform. In this regard, the Münster Higher Administrative Court recently decided that any public interest within the area of ​​responsibility of the municipality should be viewed as a public purpose, so that only profit generation would be excluded as a public purpose. The term “requirement” is not to be understood in the sense of inevitability, but it suffices that the activity for the public purpose is reasonably necessary. In that regard, however, the municipality has a certain margin of appreciation. Because the decision to take up the activity would contain evaluative and prognostic elements that could not be unreservedly controlled by a court. The decision of the active municipality that the public purpose pursued by it “requires” the activity can therefore only be checked for gross misjudgments. The express recognition of a far-reaching leeway for the municipality to “demand” and the correspondingly limited control options by the administrative courts reflects the administrative treatment of this indefinite legal term.

Urgent public purpose

For municipal activities in North Rhine-Westphalia there had to be an “urgent public purpose” by December 2010. Not every publicly desirable activity, but only those activities that could be pursued by the municipalities, which did justice to an increased public interest in the general interest. With the requirement of an "urgent" public purpose (Section 107 Paragraph 1 Clause 1 No. 1 GemO NRW old version), increased requirements should be placed on the permissibility of an activity. After the justification of the government draft, the municipality had to deal more intensely with the question of whether the public purpose pursued with the economic activity is actually so urgent that its own economic activity was necessary. The public purpose is urgent if it brings about a concentration on activities for which there is actually an increased public need. Since the liberalization of the municipal code, the simple purpose limitation of a “public purpose” has been in effect again.

Limits to Public Purpose

The core area of ​​municipal activities to be observed is not a fixed set of tasks, but the principle of universality. Municipalities can take care of all matters of the local community that have not already been assigned to other public administration bodies by law , without any special assignment of powers. However, if the task has no or no relevant local character, it falls outside the scope of Article 28 (2) GG. In its “Rastede decision” cited so far, the BVerfG has dynamized the concept of public purpose, in which it does not want to disregard both temporal developments and local individualities: “It is obvious that these matters are not one for always form a fixed group of tasks; It is also clear that this cannot be the same for all municipalities regardless of their number of inhabitants, area-related expansion and structure. ”Basically, the interpretation of the public purpose is a question of appropriate local policy, which is largely determined by considerations of expediency .

A municipality is only permitted to engage in economic activity by founding privately organized municipal companies if they serve the fulfillment of their tasks, do not overburden their performance, a public purpose exists and the task cannot be fulfilled more economically by others (e.g. Section 107 (1) sentence 3 GemO NRW). However, a public purpose does not exist if making a profit is the only aim with which a municipal company organized under private law is operated. A municipal enterprise whose exclusive or primary purpose is profits is incompatible with the “public purpose”. "Purely commercial-fiscal companies are prohibited to the municipalities" if there is no reference to their public tasks. This also applies if the profit is made to relieve the municipal budget and finance other municipal tasks. Due to the principle of economic efficiency, the municipality is also not allowed to create economic enterprises that bypass the need. Therefore, in the longer term, both under- and overcapacities should be avoided.

literature

  • Ute Mager: Furnishing guarantees: emergence, roots, changes and constitutional redefinition of a dogmatic figure of constitutional law . In: Jus Publicum Series . tape 99 . Mohr Siebeck, Tübingen 2003, ISBN 3-16-148001-5 , p. 341 (527 p., Limited preview in Google Book search).
  • Peter Armbrust: Introduction to local law in Lower Saxony . In: Introductions - Law . tape 5 . LIT Verlag Münster, Hamburg 2007, ISBN 978-3-8258-9065-0 , p. 22 (180 p., Limited preview in Google Book search).

Individual evidence

  1. ↑ BVerwGE, 39, 329, 333
  2. ^ Higher Administrative Court of North Rhine-Westphalia, decision of August 13, 2003, OVGE 49, 192 ff.
  3. ↑ BVerfG, decision of November 23, 1988, BVerfGE 79, 127, 151
  4. ↑ BVerfGE 79, 127, 151
  5. ↑ BVerfGE 79, 127, 143 ff .; 83, 37, 54; 91, 228, 236
  6. ^ OVG Münster, judgment of April 1, 2008 (Az. 15 B 122/08)
  7. ↑ Landtag printed matter 14/3979, 149.76
  8. ^ VG Köln, decision of July 29, 2008, Az .: 4 L 1060/08
  9. ↑ BVerfGE 79, 127, 146
  10. ↑ BVerfGE 79, 127, 152
  11. ↑ BVerfGE 79, 127, 152
  12. ↑ BVerwGE, 39, 329, 333
  13. ↑ BVerfGE 61, 82, 107 f. from 1982
  14. ↑ BVerwGE 39, 329, 333 f. from 1972
  15. ↑ BVerfGE 61, 82, 106 from 1982