The entire action of a municipality is not only under state supervision of the respective country in Germany . The Federal Constitutional Court describes local supervision as a correlate of the institute for local self-government . A distinction is here essentially the legal supervision by the specialist supervision (or special supervision). Local supervision itself is always a special form of legal supervision.
Legal and technical supervision
In the legal supervision is only checked whether the municipality under its administration activities ( own sphere of influence ) law and law complies. This is to be distinguished from the technical supervision (or special supervision ), which enables the state level in the assigned sphere of activity, in addition to legal control, to prescribe specific municipal administrative action in terms of content - also by means of individual instructions. In practice, this is usually done through a generalized administrative regulation that prescribes a specific application of the law.
The subdivision into legal and technical supervision corresponds to the distinction between municipal tasks: Since the municipality is free in the way of performing tasks in the case of self-government tasks (in the case of voluntary self-government tasks also in the decision on the performance of tasks), only compliance with applicable law can here within the framework of legal supervision be checked. In the case of tasks of the assigned sphere of activity , the municipality acts for the state administration. Accordingly, the state supervisory authority has the technical supervision with further control and instruction rights (see municipal task structure ).
Forms of local supervision
Local supervision is exercised preventively or repressively . Supervision takes preventive action if the law specifies a notification requirement or a reservation of approval . The decisions are discretionary and are subject to the principle of opportunity .
The retrospective repeal of municipal resolutions falls under repressive supervision. The procedure is structured in several stages in almost all municipal ordinances: If the council of a municipality adopts an illegal decision or if another body decides on an illegal measure, the main administrative officer is fundamentally obliged to object . In cases of doubt, the latter has to report to the municipal supervisory authority (see only § 88 NKomVG ). This then has to decide whether to take local supervisory steps against the decision / measure. This is a discretionary decision . The local supervisory authority can - depending on the respective state law - issue complaints, issue orders, initiate substitute performance or replace an organ with a representative (cf. for Lower Saxony §§ 172 ff. NKomVG ). In the event of a different legal opinion against such a decision, there is the possibility of objection and an action before the administrative court on the part of the municipality concerned.
For municipalities belonging to the district, the district or, in southern Germany, the district office is usually the responsible supervisory authority. In some territorial states, municipal supervision over an independent city , large independent city , large district town or over the district is exercised by a state funding authority (regional council , district government , state administrative office , state directorate); in others directly through the Ministry of the Interior.
As a rule, the responsible highest state authority watches over higher municipal associations (example: in North Rhine-Westphalia , the municipal supervision of the landscape association according to § 24 LVerbG is carried out by the Ministry of the Interior as the responsible highest state authority).
Legal supervision of municipal budgets
The municipal supervision gains the greatest relevance in the course of the supervision of the budget of the municipalities. The respective municipal regulations of the federal states or the legal ordinances and administrative regulations based on them all contain the principle of balanced budgets. If this rule is violated by the municipality, the municipal supervisory authority is required, in accordance with state law and due discretion, to ensure that the municipality restores the budgetary balance . This goes hand in hand with a budget security concept. With a look at the development of the cash advances , it becomes clear that in many cases the municipal supervision was unable to enforce budget law. It is criticized from different directions. Interfering in local budget policy and the pressure to cut spending or increase revenue often lead to conflicts with local authorities. For the district administrations, as the lower level of local supervision, the particular sensitivity lies in controlling the budgets of the communities, from whose district allocation they largely finance themselves. Science criticizes the ineffectiveness of the supervision in some countries in the face of growing cash loans. In fact, it is only recently that administrative research has focused on local supervision. The latest research results report very independent, decentralized supervisory authorities and a high degree of cooperative exchange with the municipalities.
Since 2009, in view of the galloping budget deficits and cash loans, some federal states have reformed their systems of local supervision. For example, the Strengthening Pact in North Rhine-Westphalia or the program running under municipal protection in Hesse include considerable changes in supervisory instruments and official responsibilities.
- BVerfGE 6, 104 , 118.
- "Municipal supervision rejects budget security concept" Website of the newspaper Thüringer Allgemeine . Retrieved May 2, 2016
- Karoline Herrmann: The abuse of municipal cash loans. In: Wirtschaftsdienst , No. 10/2011, p. 8f
- Local authority. A changing black box. Bertelsmann Foundation website. Retrieved April 3, 2017.
- Ebinger, Falk; Geissler, René; Niemann, Friederike Sophie; Person, Christian; Zabler, Steffen: The municipal financial supervision. Structures, rationalities and implementation in a country comparison. Analyzes and Concepts, No. 1/2017.
- Christian Person, Steffen Zabler, Falk Ebinger: Municipal financial supervision and its questionable effect on the municipal debt. In: Zeitschrift für Kommunalfinanzen , No. 1/2016, p. 9f