Municipal ordinances in Germany
The municipal regulations in some countries (along with the other regulations for local self-government bodies and municipal constitution called) create in Germany, the legal basis under which the municipalities , the local affairs on their own responsibility and free self-government rules. These are state laws that are passed by the state parliament of each country . The legal regulations can be very different from country to country.
In Germany , responsibility for regulating the municipal constitution according to the Basic Law (GG) lies with the federal states. As a result, in accordance with the self-administration guarantee of Paragraph 2, Clause 1 of the Basic Law and the state constitutions, there are municipal ordinances that set up, structure, competency, rights and obligations of the municipal organs such as administration, municipal representation (city council assembly), municipality board / magistrate , mayor ( lord mayor ), Regulate local advisory board , foreigners advisory board , etc. The municipal code is at the same time the basis of the municipal financial economy and regulates the state supervision of the municipalities .
In the city-states of Berlin , Hamburg and Bremen (with the exception of Bremerhaven ), the local constitutions are overlaid by the respective state constitutions, since there the municipal and state levels coincide.
Local constitution types
All municipal constitutions is the existence of a local council together (in Brandenburg, Hesse, Mecklenburg-Vorpommern and Schleswig-Holstein of Representatives , also called in cities different names usual), the responsibility of the central municipal decisions that are listed in the relevant municipal code. There are differences in the position of the main administrative officer . In practice, three types of municipal constitution have emerged:
- the (southern German) mayor's constitution,
- the (north German) council constitution and
- the municipal constitution that still exists in Hesse .
Typification has largely lost its importance; but it still has legal historical significance.
The mayor's constitution consists of the essential type of the southern German mayor's constitution (today: the southern German council constitution ), which is the most widespread type of municipal constitution in Germany today, and a sub-type, the now defunct Rhenish mayor's constitution , which only differed in the electoral procedure.
South German mayor's constitution
The southern German mayor's constitution has traditionally developed in the Kingdom of Bavaria , the Kingdom of Württemberg and the Grand Duchy of Baden since the 19th century . Here the municipal decisions are made by two bodies: the council and the (full-time) (lord) mayor. Both organs are directly elected by the citizens, but often with different terms (the councils mostly for five years, the (lord) mayors often for eight years - there are considerable differences between the countries). This is intended to emphasize the independence of both offices from each other and to prevent “camp thinking” as in the state parliaments or in the Bundestag .
The (lord) mayor has a strong position in this constitution because he implements the decisions of the council, represents the municipality externally and is the head of the municipal administration. Furthermore, he is responsible for his own responsibilities, which the Council cannot withdraw from him (instruction matters, day-to-day administration). Classically, the mayor is also the council chairman; if this is not the case, one speaks of a dualistic mayoral constitution .
The southern German council constitution is the predominant type of municipal constitution in Germany today (see below).
Rhenish mayoral constitution
The Rhenish mayor's constitution existed in Rhineland-Palatinate and Saarland until the 1990s . This constitution was based on the South German mayor constitution with two central organs. The election of the (lord) mayor was different: while this is directly elected in the South German mayor's constitution, the election in the Rhenish mayor's constitution was held indirectly by the respective council.
The council constitution, often also the North German council constitution , was based on ideas of the British occupying power after 1945 and for a long time formed the basis of local law in North Rhine-Westphalia and Lower Saxony .
In the North German council constitution, the council represented the most important and central body. In this model, the (lord) mayor, who was elected by the council, only had the chairmanship of the council. The administrative business was carried out by a (senior) city director as the main administrative officer , who was also elected by the council and acted on its behalf (purely executive activity). Colloquially, this model was called dual track or dual leadership .
In both countries, the North German Council Constitution was replaced by the South German Mayor Constitution in the 1990s ( single track ) . The (lord) mayor now also heads the respective administrations. In North Rhine-Westphalia (lord) mayors are elected for five years together with the council (which also has a regular term of five years). In Lower Saxony, which were integrated municipality mayor and the (upper) Mayor appointed for eight years. Due to a change in the law, the terms of office of the main administrative officials were synchronized with the term of office of the representatives of the representations, i.e. shortened to five years.
The municipal constitution, which goes back to the Prussian reform politician Freiherr vom Stein and the "order for all cities of the Prussian monarchy" developed by him on November 19, 1808 , is only valid in Bremerhaven and, in a modified form, in Hesse ; in Schleswig-Holstein it was abolished in the late 1990s.
In its original form, the Constitution provided a strict separation of powers between the collegiate council consisting of the (upper) Mayor and volunteers and Aldermen is and represents the administration of the city, and the city council , which consists of the City Council as representatives of the people and which is presided over by a city councilor. This separation is so strict that the members of the magistrate as honorary officials or electoral officials are not allowed to be elected officials in the city council at the same time . Originally, the magistrate and the city council were supposed to be of equal rank; no organ should be “more important” than the other. The competences that are concentrated on the mayor according to the South German mayor's constitution and mayor's constitution are divided in this model between the magistrate and the mayor; the respective mayor has to vote in the council of the magistrate and cannot instruct the councilors to take certain actions .
In the Weimar Republic , this model was the basic model for the management of a (larger) community - the municipal authorities were assigned a wide variety of names at the municipal level. Due to the developments from 1933 and above all during the time of the occupying powers, this model was only revived in the aforementioned federal states after 1945, whereby Bremerhaven still has an exceptional position today.
Originally, the mayor was elected in the magistrate's constitution by the respective municipal council (before 1933 a consensus was even required between the magistrate and the city council). In the beginning, however, only male residents were allowed to vote for city councilors. The magistrate constitution was accepted in only a few states of the German Confederation (albeit with different electoral procedures, e.g. two-class suffrage in the Electorate of Hesse or three-class suffrage in the Prussian Rhine Province); from 1832 onwards it also applied to cities in Saxony and from 1834 to cities and municipalities in Kurhessen. Only after the fall of the German Confederation in 1866 and the annexation of Hanover , Electoral Hesse and Nassau , Municipal Constitution mid-1880s was also introduced in most provinces of the Prussian monarchy.
Beginning in 1990, the magistrate's constitution was modified in Schleswig-Holstein and has now been completely abolished in favor of the southern German council constitution; In Hesse, too, there has only been a bogus municipal constitution with a popularly elected mayor since 1993 .
Municipal regulations of the federal states
The differences in constitutional types in the countries are due to the occupying powers there, which in some cases set their ideas for communal structures in the countries after the war. In the US-occupied territories, however, the German municipal code of January 30, 1935 (DGO), which provided for the enforcement of the Führer principle at the municipal level , remained largely in force . For this reason, Bremerhaven has a municipal constitution, while the surrounding area was under British administration and the dual leadership there was introduced.
The names and meanings of the communal organs vary significantly in the individual countries. There are also differences depending on whether it is (only) a municipality or a city.
|country||abbreviation||Constitution type||Representative body|
|Baden-Württemberg||GemO||South German council constitution||G: Municipal Council
S: Municipal Council
|Bavaria||GO||South German council constitution||G: Municipal Council
( M : Market Municipality )
S: City Council
|Berlin||-||no municipal code||The House of Representatives and the District Assembly take on this task|
Special case: the honorary mayor in official municipalities heads the municipal council
|G: Local council
S: City council
|Bremen||Availability||only Bremerhaven Mag.Verf.||City Council (Bremerhaven) and City Citizenship (Bremen)|
|Hesse||HGO||Municipal constitution||G: Local council
S: City council
|Hamburg||-||no municipal code||The Hamburg citizenship takes on the task|
|Mecklenburg-Western Pomerania||KV MV||South German council constitution||G: Municipal
Representation S: City Representation (in the Hanseatic cities: Citizenship)
|Lower Saxony||NKomVG||South German council constitution
(as a rule; also in the case of integrated communities)
North German council constitution
(in member communities of integrated communities )
|G: Municipal Council
S: City Council
|North Rhine-Westphalia||GO NRW||South German council constitution||G: Council of the municipality
S: Council of the city
|Rhineland-Palatinate||GemO||South German council constitution||G: Municipal Council
S: City Council
|Saarland||KSVG||South German council constitution||G: Municipal Council
S: City Council
|Saxony||SächsGemO||South German council constitution||G: Municipal Council
S: City Council
|Saxony-Anhalt||KVG LSA||South German council constitution||G: Municipal Council
S: City Council
|Schleswig-Holstein||GO SH||South German Council Constitution (full-time mayor in larger communities)
Mayor's constitution (honorary mayors in smaller municipalities)
|G: Local council
In small communities: Local council (example Wiedenborstel)
S : Local council (or as stipulated in the main statute)
|Thuringia||ThürKO||South German council constitution||G: Municipal Council
S: City Council
Already in the Middle Ages there were city ordinances in the form of city law . Local law in Germany developed from very old legal sources. The basis of today's municipal regulations in Germany is the guarantee of self-government in the constitutions of the federal states and Article 28 (2) of the Basic Law (GG). After the French Revolution, these rights were in almost all German territories the communities guaranteed (eg., By the municipality edict of 1806 in Bavaria and the Prussian city order of 1808 by the monarch).
Development during the Weimar Republic
Just like the municipalities in France still today, the German municipalities also had extensive autonomy until 1918 . The centralization of the Reich finance administration in the course of the Erzberger reforms was a major consequence for local self-government . On August 12, 1919, Reich Finance Minister Erzberger informed the delegates of the National Assembly about the new structures as follows:
- "I am clear about this and also want to create clarity: The implementation of the Reich's own tax organization will represent the greatest step towards building the German national unified state."
With the state tax law of March 30, 1920 , the first inclusion of special financial equalization legislation, the states and municipalities finally lost their financial independence. Formally, the more than 30 different city and community codes remained in place, but almost all parties developed concepts for the establishment of a unified state during the Weimar Republic . Large parts of the SPD, in addition, the Left as a whole and of course several right-wing parties were convinced unitarists . However, some right-wing, conservative parties remained federalists . In particular, parties like the USPD or KPD , like the NSDAP , strove for sole rule in which pluralism should no longer take up a place.
The beginning of the final undermining of federalism then took place on July 20, 1932 with the so-called Prussian strike . This coup of the Reich government against the Free State of Prussia was all the more serious because Prussia was the largest country of the Weimar Republic and comprised two-thirds of the Reich's territory and three-fifths of the Reich's population. This development also had an impact on the smaller countries.
Development during the time of National Socialism
Just two months after the seizure of power of the NSDAP occurred on March 31, 1933, co-sponsored by the majority of parties represented even in the Reichstag and the Reich President Paul von Hindenburg granted Provisional Law for coordination of the states with the Reich (RGBl I, p. 153) in Force. The state parliaments were dissolved and re-formed in the respective state based on the number of votes in the Reichstag election of March 5, 1933 , with the National Socialists already having an absolute majority in most state parliaments.
In December 1933, the first thing that followed in Prussia was a uniform municipal constitutional law , which repealed all previously applicable city and rural municipal regulations. On January 30, 1934, the law on the rebuilding of the Reich was passed in the Reichstag and also approved by Hindenburg. The previous existence of the countries thus lost their importance; this law transferred all the rights of the states to the Reich government and made them the state constitution-giver.
The German municipal code of January 30, 1935 then standardized municipal law throughout Germany. Although local self-government was retained de jure , the authority and position of the community leader were not only determined in accordance with the central state, but also in accordance with the Führer principle . From then on, the leaders of the communities used the designation “mayor” throughout the German Reich or “lord mayor” in district towns. They were no longer elected, but called. Although this law was enacted during the Nazi era and, when viewed as a whole, aims at the organizational classification of the communities in the Führer state, it is recognized that the central regulatory content is free from specific National Socialist ideas. According to general research opinion, the German municipal code of 1935 is to be seen as a definition and further development of the municipal legislation and case law already drawn up in the Weimar Republic. Accordingly, in accordance with the Basic Law of the Federal Republic of Germany of May 23, 1949, key components of the law continued to apply as state law in various federal states, in some cases until the end of the 1990s.
Development in the western occupation zones and the Federal Republic from 1945 to 1990
From the end of the Second World War , the reconstruction of local self-government took place under the supervision and supervision of the respective occupying powers. After the end of the Nazi era, the cities and municipalities were the only remaining functional units that were able to reorganize a regular life after the devastation of this war. The municipal regulations in the British occupation zone oriented more towards the British communal constitution, in the American occupation zone led to different solutions (in Bavaria and Württemberg-Baden more on the model of the Southern German council constitution; rather the most in Hesse Hessian oriented Prussian / model, so-called. fake magistrate constitution , but optionally also the council constitution). The first municipal code after the end of the Second World War was issued by the Hessian state government on December 21, 1945 (at that time a "denazified" German municipality code for Greater Hesse , only from 1946: Hessian municipality code ). In early 1946 the first local elections were held in Hesse , the referendum on the Hessian constitution did not take place until December 1, 1946. The other southern German states of the American zone soon followed.
The communal self-government guaranteed by the constitutions of the states has not been restricted by the later regulations of the Basic Law for the Federal Republic of Germany, which was promoted by the Western Allies, because apart from the provision of Local law has remained a state matter since the post-war regulations.Paragraph 1, Sentence 2 of the Basic Law: In the states, In circles and communities, the people must be represented by general, direct, free, equal and secret elections. there were no further local regulations at federal level.
Development in the Soviet occupation zone and the GDR from 1946
In the Soviet occupation zone, the “Democratic Municipal Constitution” was put into effect in each of the five federal states between September 11th (Saxony) and October 5th (Saxony-Anhalt) in 1946. With regard to its content and its regulatory content, it did not lag behind those of the western zones of occupation.
With the founding of the GDR in 1949 and the dissolution of the federal states in 1952 as well as the ever stronger enforcement of the dictatorship of the SED , however, the resulting guarantees for local self-government were in practice further curtailed until they were finally replaced with the law on local organs of state power of 18 January 1957 were completely abolished. By enacted on the same day law on the rights and obligations of the People's Chamber in relation to the local representative bodies , the People's Chamber not only took over the supervision, but also transfer rights and could cancel decisions of local representative bodies altogether. With these two laws, the municipalities became a lower state administrative level of the GDR without their own sphere of activity and without their own legal personality. With the law on the dissolution of the Land Chamber of the German Democratic Republic of December 8, 1958, final legal regulations in terms of centralized government were made. With this, the cities and municipalities in the GDR also perished in a legal sense.
Local law during the de Maizière government
During the term of office of the first government of the GDR to emerge from a free, general, equal and secret election, the government de Maizière , the first legal bases for a local law on a liberal and constitutional basis developed in March 1990. The municipal constitution of the GDR , which came into force on May 17, 1990 , led to a legal restoration of the self-government of cities and municipalities in the GDR territory (which, however, were neither legal successors of the lower state administrative level that existed until then, nor successors of the previously existing municipalities) and for the (re-) introduction of local self-government based on the model of the (old) Federal Republic. The text was kept relatively open in order not to overly prejudice the legislative competence of the federal states. In practice, in 1990 this initially led to locally strongly differing adoptions of the types of municipal constitution described in the cities and municipalities. The forms of self-government could tend to follow the patterns of the North German as well as the South German Council constitution model .
Development in the Federal Republic from 1990
In 1993 and 1994 in the federal states of Brandenburg, Mecklenburg-Western Pomerania, Saxony, Saxony-Anhalt and Thuringia, the municipal constitution of the GDR was replaced by state legal regulations, which were each based heavily on which (West German) state had the respective sponsorship. So it came about that the Brandenburg and Mecklenburg-West Pomerania municipal regulations are based on the North German council constitution, while Saxony adopted the municipal regulations of Baden-Württemberg almost unchanged in terms of content and legality.
Developments in recent years have focused on greater participation of community citizens in community affairs (direct democracy at community level), modernization of the administration (" new control model ") and the direct election of the mayor , who is also the main administrative officer (1994: Nordrhein- Westphalia , Rhineland-Palatinate and Saarland , 1996: Lower Saxony , 1998: Schleswig-Holstein ). The municipal constitutions were amended accordingly during this time. There are deviations between the federal states in particular with regard to election times and the competencies of the respective (lord) mayors.
Criticism of the North German and South German Council Constitution
One of the points of criticism is the position of the (lord) mayor, who is also the main administrative officer and the political representative of the community. As a result, in times before a local election, the municipal administration would come under greater political pressure and its ability to act could be restricted in some cases, since the main administration official would then devote himself more to the election campaign .
Furthermore, it is objected, the cumulative workload has increased. In particular, the representation required a considerable amount of time in larger municipalities, in which the main administrative officer could no longer deal with the ongoing administrative business, so that the rest of the administration would have to be given considerable freedom. In contrast, the (old) two-pronged North German Council Constitution ensured that the administration was headed by an administrative specialist, while the representative, honorary (mayor) mayor could pursue any profession (and also according to the southern German model by no means would an administrative specialist be elected).
However, this criticism is also countered by the fact that in the north German council constitution the (lord) mayor was never able to carry out his ideas or resolutions of the council directly, but always had to rely on a third party, the (senior) city director , which in practice was too considerable tension, in the best case lead to delays. From the Council's point of view, concrete political and personal responsibility was never sufficient.
In practice, this results in the (lord) mayor's competencies, which are still significantly higher today in the area of the southern German council constitution, which were not developed in this way in the northern German council constitution, but the argument that the administration is more closely linked to the council is one of the most important Arguments have been to standardize the different municipal regulations on this point.
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