Loan
Through the legal form of lending , the authority to exercise sovereign tasks in the forms of action under public law is transferred to legal entities under private law or natural persons . It is a case of indirect state administration .
The term “entrusted” (also: “entrusted entrepreneur”) was coined by the German administrative lawyer Otto Mayer . However, it has not found direct entry into the Federal Administrative Procedure Act , but is described, for example, in Section 24 (1) of the General Administrative Act for the State of Schleswig-Holstein as “the transfer of public administration tasks to natural and legal persons under private law as well as unincorporated associations for execution in the forms of action under public law ”.
Nature and requirements of the loan
When performing sovereign tasks , it may be appropriate to use private expertise or existing private capacities. The lending enables the state to relieve itself through deregulation and privatization . The only limit to the lending is the fulfillment of core state tasks that may not be delegated (e.g. tasks of the police or financial administration).
Lending means that private individuals (natural and legal persons) perform administrative tasks independently. In contrast to the administrative assistant , who, as a mere “tool” or “vicarious agent” of the sovereign, is assigned their own decision-making powers. This is an exception to the principle that only officials in the status legal sense, in a public service and fiduciary relationship are, sovereign powers may be transferred ( Art. 33 , para. 4 GG ). The legislature has a wide scope to decide whether and to what extent it wants to carry out public tasks through its own organs or through entrusted persons. However, loaned and administrative assistants are civil servants in the sense of liability law, with the result that the state is fundamentally responsible for a breach of official duty and their personal liability is eliminated ( Art. 34 sentence 1 GG).
Lending may only take place through or on the basis of a law . The legal reservation concerns not only the "whether" of a loan, but also includes its essential modalities ("how"). The legislature must name the powers and obligations of the borrowed party as well as any obligations to cooperate, tolerate and refrain from third parties towards the borrowed party. In addition, other requirements must be met. So the lending sovereign must exercise at least the legal supervision over the lent. The need for technical supervision is controversial. B. the controversy between the Federal Council and the Federal Government on the question of technical supervision at the German Social Accident Insurance eV shows.
Since the entrusted is entrusted with the sovereign performance of administrative tasks, he is part of the executive i. S. d. Art. 1 para. 3 GG. Regardless of whether he is active under public or private law, he is therefore bound by fundamental rights .
Special legal regulations
The numerous legal cases of lending are not uniformly regulated and do not follow clear dogmatics, which the scientific literature criticizes.
The question of the structure of the legal relationship between the borrowed party and third parties (under public or private law) and - depending on this - the question of legal recourse against decisions by the borrowed party (administrative or civil law recourse) is equally inconsistent. For this purpose, a precise examination of the respective regulation including any national legal peculiarities is required in each individual case.
Examples of a loan that is not always named in the law include Section 2 of the Eco-Labeling Act, Section 2, Paragraph 3 of the Organic Farming Act (ÖLG) for control points , Section 4 of the Motorway Toll Act for Heavy Commercial Vehicles (ABMG), and Section 10 of the Force -Wärme-Koppelungsgesetz (KWKG), Section 20 (1) Greenhouse Gas Emissions Trading Act, Sections 17–19 Electrical and Electronic Equipment Act (ElektroG), Section 5 Federal Securities Administration Act , Sections 5, 12 Aviation Security Act, Sections 3, 7 Pension Contracts Certification Act and the Accreditation Body Act, Section 44 (3) of the Federal Budget Code (BHO).
Useful examples
For example, the engineers of the technical inspection associations ( TÜV ) and other inspection companies are entrusted with the regular main inspections of motor vehicles. The test engineers for structural engineering , district chimney sweeps , test centers , notaries (if they are not official notaries ), publicly appointed surveyors (ÖbVI for short) and meat inspectors are also loaned natural persons . Likewise, the members of private companies who carry out access controls to the security areas on behalf of the Federal Police at German airports (passengers, flight personnel, deliveries of goods, etc.). Based on the lending by the administration, you make your own decision about sovereign measures.
Toll Collect
By way of the loan, the Federal Office for Goods Transport has commissioned Toll Collect GmbH to monitor truck tolls in Germany .
Air and ship captains
Even the captain is to § 12 para. 1 Aviation Security Act , insofar as it provides a loaned "for the safety and order on board the aircraft in flight", as the ship's captain to § 121 Maritime Labor .
Sovereign tasks of professional associations
The professional association of German psychologists was entrusted in § 71 FEV with the task of official recognition of traffic psychological advisors . This state loan was discussed controversially because there is allegedly no explicit legal authorization .
The Federal Constitutional Court has classified the associations of the substitute funds as lent legal persons.
The Association of Private Health Insurance is charged with stipulating the type, scope and amount of the benefits in the basic tariff and in the emergency tariff ( Section 158 (2 ) VAG ).
Individual evidence
- ↑ General Administrative Law for the State of Schleswig-Holstein (Landesverwaltungsgesetz - LVwG -) in the version published on June 2, 1992, GVOBl. 1992, 243, 534
- ↑ Kiefer: Need for regulation and leeway for lending , LKRZ 2009, 441
- ↑ Civil servant in the sense of liability law Rechtslexikon.de, accessed on October 31, 2019
- ↑ So the constant case law of the BGH, cf. BGH, judgment of November 30, 1967 - VII ZR 34/65, BGHZ 49, 108; BGH, judgment of October 14, 2004 - III ZR 169/04, NJW 2005, 286
- ↑ Michael Luber: Recourse against entrusted persons and administrative assistants August 2019
- ↑ BVerwG, judgment of August 26, 2010, Az. 3 C 35.09, full text .
- ↑ BT print. 16/9154 , pp. 56 and 59.
- ↑ Scherzberg, NVwZ 2006, 377, 385 and the formulation suggestions by Schmidt, ZG 2002, 353 ff.
- ↑ Kögel, M 2002 The traffic psychology section in the BDP eV: new legal example of an "entrusted entrepreneur" (§ 71 of the driving license regulation - FeV)
- ↑ BVerfG, judgment of December 17, 2002, Az. 1 BvL 28/95, 29/95 and 30/95, full text = NJW 2003, 1232, 1235.
literature
- Birgit Schmidt am Busch: The loan: A legal institution in transition . In: DÖV 2007, pp. 533-542.
- Frank Bansch: Lending as a constitutional problem - on the permissibility of a transfer of sovereign powers to private individuals under the Basic Law . Frankfurt am Main 1973 (Dissertation (Univ.)).
