Local law (Germany)

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The municipal law is in Germany a part of administrative law . It regulates the legal status of local authorities . These include in particular municipalities , districts and higher municipal associations . These belong to the indirect state administration and are characterized by a special independence in carrying out their tasks.

The basis of local law is local self-government , which is guaranteed by Article 28, Paragraph 2, Clause 1 of the Basic Law (GG) and by similar provisions in the constitutions of the federal states . According to this, the congregation is authorized to regulate all affairs of the local community on its own responsibility.

The more detailed elaboration of local law takes place in accordance with Art. 70 GG through state law . In all German states with the exception of the city ​​states of Berlin and Hamburg, municipal codes regulate the structure of the municipality and its position within the administration. Further sources of local law are district ordinances , local election laws, laws on communal community work, as well as statutes and ordinances . In the Free Hanseatic City of Bremen , to which the city of Bremerhaven also belongs, there is a special feature that the municipal constitution of Bremerhaven is regulated by a municipal statute , while the municipal constitutional law of the city of Bremen results directly from the Bremen constitution .

History of origin

The concept that the community regulates its own affairs largely independently arose in antiquity . As a written legal position of the community, self-government was guaranteed for the first time in many German states as a result of the French Revolution and the occupation by Napoleonic France . The earliest regulation in this regard is a provision of the Prussian town order from 1808. The Paulskirche constitution of 1849 also guaranteed local self-government. Although this was not legally effective because of the resistance of numerous German states, later constitutions of the German states took up this guarantee, such as the Prussian municipal code of 1850. The Bismarckian constitution of 1871 did not guarantee local self-government.

The municipal guarantee of self-government received constitutional protection from the Weimar Constitution (WRV) of 1919. Art. 127 WRV guaranteed this, but provided for the possibility of restricting it by law . After the National Socialists came to power in 1933, local self-government was undermined: on February 4, Hermann Göring, as acting Prussian Interior Minister , ordered the compulsory dissolution of all Prussian municipal councils on February 8 and ordered new elections for March 12. At the same time, community organs such as councilors and mayors across the country were disbanded under threat of violence, and their administrators were illegally imprisoned. The Prussian Municipal Constitutional Law of December 15, 1933, which was not passed through parliament , standardized - “until a Reich law soon implements a fundamental reform of the municipal constitution for the whole Reich” - the different local law applicable in Prussia on January 1, 1934 according to National Socialist principles: By introduction According to the leader principle , the mayor was appointed as community leader without election for twelve years and was allowed to make all decisions in the community without a community council. Instead of a municipal council, there were “deserving and experienced citizens” who were appointed by NSDAP officials and who advised the mayor. Only their designations "councilors" and "community elders" still sounded similar to earlier. On April 1, 1935, the uniform German municipal code, largely identical in its individual provisions, followed . It abolished the federally structured municipal constitutional law of the German states and introduced a centralized regulation.

After the end of National Socialist rule in 1945, the military governments of the Western occupying powers in Germany promoted the rebuilding of local self-government according to democratic principles. The local self-government guarantee was standardized in the state constitutions and in Article 28, Paragraph 2, Sentence 1 of the Basic Law.

Position of the municipality within the state organization

Triangle with the federal government at the top, including in layers the federal states, optional administrative districts, (rural) districts, optional municipal associations and municipalities. The strict stratification is broken up by city-states and district-free cities, which perform tasks of several strata.Bund Bundesländer/Flächenländer Bundesländer/Stadtstaaten (Regierungsbezirke) (Land-)Kreise Gemeindeverbände (Gemeindeverbandsangehörige/Kreisangehörige Gemeinden) (Gemeindeverbandsfreie) Kreisangehörige Gemeinden Kreisfreie Städte
Vertical state structure of Germany

The municipality is a subdivision of the federal state. As an administrative unit, it is part of the executive . Although the community organization has parallels to the organization of the legislature, the community lacks the opportunity to pass parliamentary laws. Due to its organizational independence, the municipality is part of the indirect state administration.

According to its legal nature, the municipality is a regional authority . It is therefore a corporation under public law , which is characterized by the rule over a demarcated area and has a membership organization. Members of the municipality are natural and legal persons who have their place of residence in the municipality . The municipality has the legal form of a legal person under public law .

Other local authorities are community associations and districts. In some countries there are additional municipalities , administrative communities and similar structures. For example, through the merger of the district of Hanover with the city of Hanover , the state of Lower Saxony created the Hanover region , which is also a local authority. The organization of these bodies has parallels to the organization of the community.

Local self-government

The guarantee of communal self-government grants the commune the right to administer itself to other sovereigns. It is guaranteed by Article 28, Paragraph 2, Sentence 1 of the Basic Law. Numerous state constitutions contain a similar guarantee, the scope of which at least corresponds to that of Article 28, Paragraph 2, Sentence 1 of the Basic Law and in some states even goes beyond this. The self-government guarantees of the Basic Law and the state constitutions are basically interpreted in the same way by case law.

The municipal self-government guarantee is a state organization provision . Although it has structural parallels to basic rights , it is historically linked to the WRV guarantee, which was also of the nature of state organization law. In addition, the violation of the guarantee of self-government is not asserted by means of the constitutional complaint intended for violations of fundamental rights , but by means of the municipal constitutional complaint .

The local self-government guarantee binds the entire state authority. These include in particular the federal and state governments as well as other municipal associations. According to case law, it also restricts the municipality's right to privatize the fulfillment of its tasks . The Federal Administrative Court found the privatization of a Christmas market inadmissible because it was of too great cultural and social importance for the community.

Jurisprudence describes the warranty content of the municipal self-government guarantee with the help of three guarantees: the legal subject guarantee, the legal institution guarantee and the subjective legal status guarantee.

Legal entity guarantee

The legal entity guarantee protects the existence of the administrative unit “municipality”. This obliges the federal states to form and maintain a local administrative level.

A higher-level sovereign intervenes in the legal entity guarantee by dissolving the municipal administrative level as a whole or an individual municipality. The former always constitutes a violation of Article 28, Paragraph 2, Clause 1 of the Basic Law. The latter is permissible provided that the municipality concerned has been heard beforehand and the measure is based on an objectively viable reason, such as the promotion of the common good.

Legal Institution Guarantee

The legal institution guarantee guarantees the municipality's right to regulate its own affairs on its own responsibility. These are matters that are rooted in or related to the local community. History and administrative practice are indications for the evaluation of a matter as a matter of the local community. Typical issues of the local community are, for example, services of general interest and the operation of a savings bank .

If a matter of the local community does not fall within the jurisdiction of the state or the federal government, the municipality is responsible for it according to Article 28, Paragraph 2, Sentence 1 of the Basic Law. This is what jurisprudence describes as the universal competence of the community. From this it follows that the community can independently create tasks and fully determine how they are to be fulfilled. The community therefore has the right to invent tasks.

The voluntary establishment and fulfillment of tasks finds its limit in the state competency order: The municipality may only take on tasks that are related to its local community. Therefore, it must not take on any tasks that fall within the competence of the federal government, the state or another municipality. For example, no municipal child benefit may be paid out, as this interferes with the federal authority to regulate family burden equalization. The municipality is also not allowed to issue any advertising bans.

Parish sovereignty

Jurisprudence concretizes the concept of the affair of the local community through the catalog of community sovereignty. These are areas that are typically the responsibility of the municipality.

The municipality carries out its tasks within the limits of its capabilities. The completion of tasks that go beyond this can also be taken over by the next higher level.

Sovereignty

Territorial sovereignty describes the municipality's legal power over its municipality. Within this, the municipality may exercise sovereignty.

Organizational sovereignty

By virtue of its organizational sovereignty, the municipality determines the structure and processes in its administration. For example, it decides on its own responsibility which authorities it creates, which tasks it assigns to them and how they equip them.

Personnel sovereignty

Personnel sovereignty is closely related to organizational sovereignty. This describes the right of the community to act as an employer . According to this, it decides on the creation of positions in its administration and on filling them with staff.

Cooperation sovereignty

Cooperation sovereignty is also closely related to organizational sovereignty. This refers to the municipality's right to independently decide on cooperation with other municipalities. According to this, the community has the right to cooperate with other communities in its affairs. State law specifies the legal framework for municipal cooperation.

Financial sovereignty

Financial sovereignty entitles the municipality to independently manage income and expenses. This right is specified in more detail in the municipal code and in other state laws.

The financial autonomy refers to the own the right assets to manage and taxes to be raised. The municipality acquires its own assets in particular through municipal charges such as taxes, fees and contributions as well as through allocations from other public bodies.

The municipal financial sovereignty also grants the municipality the right to be provided with a minimum level of funding so that it can carry out its tasks. This claim is generally directed against the federal state in which the municipality is located. According to Article 106 (7) of the Basic Law, the states must pass on a percentage of the community taxes due to them to the municipalities within the framework of the municipal financial equalization scheme.

In addition, the municipality draws up a budget and implements it. This is drawn up by the administration by the treasurer of the municipality and decided by the council. In practice, there are often disputes between the municipalities and the federal states because they do not provide the municipalities with sufficient financial resources ( principle of connectivity ), so that the municipalities have too little money to regulate their own affairs.

In accordance with municipal budget sovereignty, the execution of the municipal budget and the legal and economic use of the funds are checked by auditing offices that are directly responsible to the council - and that are not subordinate to it, i.e. independent ones.

Planning sovereignty

The planning sovereignty entitles the municipality to shape its urban development independently within the framework of the land-use planning . For this purpose, it draws up land use plans and development plans . The municipality is also planning the development of municipal facilities , for example through school development and kindergarten plans .

If a higher authority undertakes planning that affects community issues, the planning authority requires that the community concerned be involved in the process. For example, as part of a building permit procedure in accordance with Section 36 of the Building Code (BauGB), the municipality in whose area construction is to be carried out must be involved. Furthermore, a municipality that carries out land-use planning must coordinate with its neighboring municipalities in accordance with Section 2 (2) BauGB and take their concerns into account. The regional planning plans of the federal states must take into account municipal land-use planning according to the countercurrent principle .

Legislative power

The legislative authority guarantees the municipality's right to enact its own affairs by issuing legal provisions. This is mainly done by means of statutes . A statute is a law in the material sense that binds those who belong to the legal entity that gives the statute. The municipality's constitutional autonomy is intended to give the municipality the opportunity to enact law that is tailored to local needs. Furthermore, the enactment of law at the municipal level is usually faster than the enactment of a federal or state law. Therefore, the autonomy of the statutes gives the municipality the opportunity to quickly adapt its law to changed circumstances. Often statutes regulate the use of a public facility, such as a library or swimming pool. Likewise, a compulsory connection and use can be decided by the statutes .

The municipality's statutory sovereignty is specified in the municipal ordinances. These contain the basis for the enactment of articles of association and regulate the procedure in which these are established. The general authorizations of the articles of association are so general that they do not comply with the fundamental legal reservation. Therefore, these do not authorize the encroachment on fundamental rights. This was contrary to the effectiveness of a municipal cemetery statute, which required stonemasons to document the origin of gravestones and thereby interfered with their freedom of occupation ( Article 12, Paragraph 1, Basic Law).

The municipal ordinances of the federal states oblige the municipalities to issue certain statutes. Such a mandatory statute is, for example, the main municipal statute , which regulates the constitution and organization. The municipality must also adopt a budget statute in which it regulates how it implements its budget . If a municipality operates its own company, it must also issue company statutes in which they regulate fundamental aspects of the company.

Intervention

According to Article 28 (2) of the Basic Law, local self-government takes place within the framework and in accordance with the law. According to this, it is subject to a simple legal reservation . Therefore, the federal government, states and other sovereigns may intervene in the self-government guarantee through formal or material law. An intervention is, for example, to withdraw a task from the community (high zoning) or to transfer it.

When assessing the legality of an interference, jurisprudence differentiates between the core area and the peripheral area of ​​the self-government guarantee.

Core area

The core area is beyond the reach of the legislature. An intervention in this area therefore also represents a violation of the self-administration guarantee . The core area protection is comparable with the guarantee of the essence of the fundamental rights according to Article 19.2 of the Basic Law.

A key area intervention is, for example, when the municipality is required to obtain the approval of a higher authority for every settlement of a matter in the local community.

Edge area

A peripheral area intervention is an interference with the self-administration guarantee that leaves the core area untouched.

Edge intervention is amenable to justification. Its prerequisites show great parallels to the principle of proportionality , which is important for the justification of encroachments on fundamental rights: a marginal area encroachment is justified if it pursues a legitimate purpose, is suitable for its promotion, is necessary and appropriate.

Subjective legal status guarantee

Finally, Article 28 (1) of the Basic Law protects the subjective guarantee of legal status. This enables the community to defend its constitutional status in court proceedings. For example, it can complain about the violation of the legal entity guarantee or the legal institution guarantee with the municipal constitutional complaint before the constitutional courts at federal and state level .

Municipal task structure

The tasks of a community are essentially made up of two elements: On the one hand, the community regulates the affairs of the local community. On the other hand, it fulfills tasks that are assigned to it by the state or the federal government. From the perspective of the federal and state governments, the transfer of tasks to the municipality has the advantage that they do not have to create or maintain their own administrative framework.

The distinction between self-government affairs and devolved matters affecting the scope of the right of instruction overriding public authority, the control of community action by the municipal supervision and the legal protection of citizens and community.

In Germany, two basic types of municipal tasks have emerged: dualism and monism.

dualism

In the dualistic task system, self-administration tasks and assigned tasks stand side by side as independent categories. The municipal law in Bavaria , Bremen , Mecklenburg-Western Pomerania , Lower Saxony , Rhineland-Palatinate , Saarland , Saxony-Anhalt and Thuringia is dualistic . The dualistic system is based on the distribution of tasks in the German municipal code of 1935.

Self-management tasks

Self-governing responsibilities include the affairs of the local community. The community takes responsibility for this. Therefore, in principle, it alone determines whether they will be fulfilled.

Jurisprudence differentiates between voluntary and compulsory self-administration tasks. Voluntary is a task that the congregation fulfills of its own accord. The municipality decides independently whether and how it fulfills the task. The administration of culture and sport is a matter of voluntary self-administration .

The legislature considers certain self-government matters to be so important that it legally requires the municipality to fulfill them. In the area of ​​such compulsory self-administration tasks, the municipality can only decide on the manner in which the tasks are to be carried out. The compulsory tasks include about school development planning, sanitation and land use planning ,

Assigned tasks

When a task is assigned, the municipality acts according to the instructions of a federal state or the federal government. These are tasks that are not a concern of the local community. The tasks assigned by the state are, for example, regulatory administration and building supervision . A municipal task by virtue of federal law is, for example, social assistance .

The overwhelming number of tasks under federal law are carried out by the state as a separate matter in accordance with Art. 83 , Art. 84, Paragraph 1 of the Basic Law. In this case, the country determines how the municipality does the job. Since September 1, 2006, the federal government has been prohibited from delegating new tasks directly to the municipality in accordance with the prohibition of the delegation of tasks in Article 84.1 sentence 7 of the Basic Law. The federal government has greater influence on the administrative procedure in the area of federal contract administration ( Art. 85 GG). Here the federal government may issue instructions to the state, which it then passes on to the municipality.

When fulfilling a delegated task, the municipality is incorporated into the administrative organization of a higher-level legal entity. If the latter gives the municipality an instruction, this has no external effect. Therefore, it does not constitute an administrative act in accordance with Section 35 Clause 1 of the Administrative Procedure Act (VwVfG) . The municipality can therefore obtain legal protection against an instruction by means of a general action or declaratory action ( Section 43 (1) VwGO ). However, this presupposes that the municipality is affected in its own law, which only applies in exceptional cases due to its integration into a foreign legal system.

Organ lending

An organ lending is when an administrative body superordinate to the municipality temporarily involves a municipality organ in its administrative activities. In many countries, for example, the district administrator can be incorporated into the state administration as a lower administrative authority.

As a result of the loan of organs, the municipality organ is temporarily incorporated into a foreign legal system with regard to a task. Therefore, instructions from the borrowing body have no external effect on the borrowed body. A legal remedy against the action of a borrowed body is directed against the borrowing legal entity, but not against the municipality.

monism

The municipal task structure in Brandenburg , Baden-Württemberg , Hesse , North Rhine-Westphalia , Saxony and Schleswig-Holstein is monistic . In these countries the municipality is the sole bearer of public administration in its area. According to this, the municipality carries out all tasks as separate affairs. For example, according to Art. 78 Para. 2 of the North Rhine-Westphalian Constitution, the municipalities and associations of municipalities in their area are the sole bodies responsible for public administration, unless the law stipulates otherwise.

The monistic task structure is based on the Weinheim draft from 1948 and aims to promote democracy at community level. It goes beyond the guarantee of self-government in Article 28 (2) sentence 1 of the Basic Law.

In monism, the municipality always faces the state as an independent administrative body, which is why the state cannot call upon the municipality to carry out state tasks. Even in monism, however, the country has the need to access the municipality as an administrative authority. For this purpose, there are special types of tasks in the monistically organized countries. In North Rhine-Westphalia, for example, there is a mandatory task of fulfilling instructions. The state has a limited right to issue instructions to the municipality and, in addition to unrestricted legal supervision, exercises limited technical supervision. Since the municipality is the sole administrative body, an instruction has an external effect on it.

In the one-tier system, too, the federal government has the option of drawing on the municipality to perform a task within the framework of federal contract administration and of exercising legal and technical supervision. This results from the fact that Article 28, Paragraph 2, Clause 1 of the Basic Law grants the municipality self-administration only for matters of the local community. The federal government is not bound by the state constitutions.

Inhabitants, citizens and forense

The community knows the inhabitant , the citizen and the forum . The first two are members of the municipality.

Residents

A resident is someone who has their place of residence in the municipality for a not insignificant period of time. This also includes children, second home owners and asylum seekers . The community resident is entitled to use the community's public facilities, to receive information on important matters from the community and to participate in community activities.

The resident has the duty to pay municipal taxes, such as property tax . In some countries, residents must also do voluntary work, for example as a lay judge ( Section 31 of the Courts Constitution Act ).

Citizen

The citizen is a resident who is allowed to exercise the right to vote in the municipality. Germans as well as citizens of an EU member state according to Art. 28 Paragraph 1 Clause 3 are eligible as citizens . In the majority of federal states, he must also be 18 years old. In some, reaching the age of 16 is sufficient. Furthermore, the resident must have had their main residence in the municipality for at least three months.

The rights of the resident are available to the citizen. He is also entitled to take part in local elections and to be elected to the local representative body or to the district council. Furthermore, the citizens can petition for a referendum and referendums participate. These are elements of direct democracy . With the help of a referendum, the citizens of a municipality decide on a question that falls within the area of ​​responsibility of the municipal council. The referendum is an application for the implementation of a referendum.

The duties of the citizen are the same as those of the resident. In every federal state it is also provided that the citizen does voluntary work. Associated with this is the communal ban on representation, according to which the holder of an honorary position is fundamentally prohibited from asserting a third party against the commune.

Forense

The forum is about a foreign landowner or trader who is affected by the actions of the community. He bears the tax burden and, like a resident, is authorized to use public facilities of the municipality.

Internal organization of the community

The internal organization of the municipalities is regulated in the municipal regulations of the federal states. Despite different historical roots, there are numerous parallels between the structures within the countries.

Community organs

As a legal person , the municipality only gains capacity to act through its organs . According to Article 28, Paragraph 1, Sentence 2 of the Basic Law, every municipality must have a democratically elected municipal council as an organ. In many countries this is called a local council . In addition, the states are free to create other organs in addition to the municipal council and to equip them with competencies.

In Germany, four types of municipal constitutions were initially developed: the magistrate constitution , the mayor constitution and the southern and northern German council constitution . These systems differ with regard to the distribution of competences between the municipal council and other municipal bodies, such as the mayor , the magistrate and the director. At the end of the 20th century, many countries reformed their local law in order to increase the involvement of citizens in political life. As a result, the municipal organization in the federal states was largely aligned with the southern German council constitution.

Community representation

The community council is a central body of the community. Although it shows parallels to legislative organs, it is not a parliament , but an administrative organ, due to the lack of the power to set formal law .

tasks

The municipal council is basically responsible for all affairs of the local community. All German municipal regulations stipulate that the municipal council must decide for itself on certain issues that are essential for the municipality, which is why it is not allowed to delegate these to other bodies. In North Rhine-Westphalia, for example, in accordance with Section 41 (1) sentence 2 of the North Rhine-Westphalian municipal code (GO NRW), this includes the establishment of the annual financial statements and the decision on honorary citizenship . The municipal council makes its decisions based on the resolution of its members. Meetings of the municipal council are generally public.

Furthermore, the municipal council controls the actions of the municipal administration. To this end, she has the right to information and inspection of files .

Members

The representative body is made up of members who are elected in general, free, equal, direct and secret elections in accordance with Article 28, Paragraph 1, Sentence 2 of the Basic Law . The content of these five electoral principles corresponds to those that Article 38.1 sentence 1 of the Basic Law standardizes for the Bundestag election . In many countries, the mayor is also a member of the municipal council. In Bavaria, the municipal council also includes advisors.

The federal states regulate the election of the municipal council in their municipal electoral laws. Different systems have been established here that regulate the electoral process and the composition of the representative body. In all countries, voting is based on proportional representation . The number of members of the community council is based on the number of inhabitants in the community. In the meantime, threshold clauses no longer exist in local electoral law: Since these impair the equality of the election, they are only permissible if they ensure that the local council remains functional. As a rule, however, there is no risk of the representation becoming unable to function due to too large a number of parties.

Membership in the municipal council is incompatible with selected other public functions in all federal states . In North Rhine-Westphalia, for example, in accordance with Section 13 of the Local Election Act, anyone who is an employee or civil servant of the municipality may not belong to the municipal council. This is intended to promote the separation of powers .

The members of the community council have a free mandate . According to this, they are not bound by orders and instructions and only bound to their own conscience in their decisions. This right shows parallels to the free mandate of members of the Bundestag from Article 38.1 sentence 2 of the Basic Law. Unlike these, however, representative members have neither indemnity nor immunity . The free mandate gives the member the right to participate in what is happening in the municipal council, for example by participating in its meetings, by making speeches and by participating in votes. The scope and limits of the participation rights of the representative members can be defined by rules of procedure. This can usually be taken in the form of a simple resolution, unless it regulates content with external impact, such as compensation payments .

In some countries, the representative members are expressly obliged to be loyal to the municipal council. One expression of the duty of loyalty is the duty to maintain secrecy about matters of community representation, which exists in all countries. This obligation applies in particular to information from non-public meetings of the municipal council. This restriction is compatible with the freedom of expression of the representative member ( Article 5, Paragraph 1, Sentence 1 of the Basic Law). Furthermore, as for volunteers, there is a ban on representation for representative members in most countries. They are excluded from decisions that affect them directly because of bias .

Factions

Similar to parliaments, politically like-minded members of the municipal council can form a parliamentary group. This should give members who have similar interests the opportunity to enforce them in a coordinated manner. The parliamentary groups usually consist of members of a political party or an electoral alliance.

The parliamentary group is an auxiliary body of the local council. The municipal regulations, the main statutes of the municipality or the rules of procedure can provide for a minimum number of members for the formation of a parliamentary group, since the parliamentary group status is regularly associated with special rights. This includes, for example, the right to convene the municipal council and apply for items on the agenda.

The parliamentary group basically manages itself independently. However, it must proceed according to democratic principles. According to this, the parliamentary group works according to the majority principle and does not require parliamentary groups . The reason for the exclusion of a member is a long-term disruption of the mutual cooperation. It takes place through a parliamentary group decision, before which the party concerned is heard by the parliamentary group.

Municipal committees

The municipal council can set up committees to organize its own activities more efficiently through the division of labor . Committees have the position of auxiliary bodies for the municipal council. They can either only have an advisory role or take decisions instead of representation.

In principle, the municipal council is free to form committees. However, the municipal regulations provide for the formation of mandatory committees. According to Section 57 (2) sentence 1 GO NRW, for example, a main committee, a finance committee and an audit committee must be set up. Committees can be set up as permanent committees or, to a limited extent, as temporary committees.

The composition of committees is based on the principle of mirror image. According to this, the majority ratios in the committee must correspond to the strength of the parliamentary groups in the municipal council. However, people who do not belong to the municipal council may also be appointed as committee members. These committee members are known as Knowledgeable Residents or Knowledgeable Citizens . In most cases, municipal constitutional law stipulates that more than half of the committee members must be members of the municipal council.

The youth welfare committee has a special position among the committees . Its composition is initially not based on state law, but according to Section 71 (1) SGB ​​VIII , which regulates child and youth welfare. Within the limits drawn by Section 71, Paragraph 1 of Book VIII of the Social Code, state law may determine the details in accordance with Section 71, Paragraph 5 of Book VIII of the Social Code.

In principle, the committees have no right of self-discussion. Accordingly, they do not determine the main points of their meetings themselves, but rather advise on the points that are referred to them by the main committee or the local council for prior consideration. The youth welfare committee is an exception here as well: According to Section 71, Paragraph 2 of Book VIII of the Social Code, it deals with all matters relating to youth welfare. According to Section 71, Paragraph 3 of Book VIII of the Social Code, the youth welfare committee has its own right of decision in matters of youth welfare within the framework of the funds provided by the representative body, the statutes issued by it and the resolutions it has passed. This also includes their own right of application to the municipal council, which the other committees do not have at their disposal due to the lack of a right of self-involvement.

Advisory boards and commissions

In all federal states, commissions and advisory boards can mostly be set up voluntarily to deal with certain issues . Most of them only have the right to be heard and can develop recommendations for the municipal council. In some cases, advisory boards and commissions are expressly provided for in the municipal ordinances. In almost all federal states, the formation of a foreigners advisory board is mandatory.

mayor

The second central municipal body is the mayor. He is referred to as Lord Mayor in independent cities , large district towns and large independent cities , medium- sized towns and many large district cities .

In most countries, the mayor heads the municipal administration. Within the municipal council, he usually chairs, chairs its meetings and implements its resolutions. Furthermore, the mayor represents the community externally. For this purpose, he may express himself in an official capacity on matters of the local community in a factual manner. If the mayor acts externally without a resolution of the municipal council being based, this is basically effective according to the prevailing view in jurisprudence. After all, the mayor conducts day-to-day administration. These include matters that have to be dealt with on a regular basis and are of minor economic importance.

The details of the mayor's office differ considerably in the federal states. In all countries except Hesse , the administrative management is structured monocratically , so the respective office holder acts alone. In Hesse, this task is incumbent on the collegial community board and in the cities the magistrate as the administrative body. However, decisions are also made there according to the majority principle ( collegial principle ).

Organs of other municipal associations

Corresponding to the municipalities, the districts , higher municipal associations , the special-purpose associations , the administrative communities and city-surrounding associations have a central municipal representation and a monocratic or collegial administrative management. In addition, other organs can appear, which are mostly formed from the respective municipal council:

District constitution and local constitution

All municipal regulations provide for a voluntary or mandatory division of the urban area into districts or localities with respective district representatives in order to enable more citizens to participate in local politics through a stronger internal structure. In the context of the local reorganization, community representatives have also ceased to exist, so that the district representatives should ensure that the interests of the former communities are represented. These representations have their own decision-making and hearing rights, but must be based on the general guidelines of the municipal council.

Local constitutional dispute

The term "municipal constitutional dispute" describes disputes that are waged within the municipal organs about organizational rights. If members of an organ argue among themselves, for example several council members, jurisprudence describes this as an intra-organ dispute. If various community organs are arguing, for example a council member with the mayor, she speaks of an inter-organ dispute.

The municipal constitutional dispute is a public-law dispute of a non-constitutional nature, which is why it is brought before the administrative judiciary in accordance with Section 40 (1) sentence 1 VwGO. Since measures within community organs typically do not have any external impact, they do not constitute administrative acts. In such cases, legal actions are therefore general performance actions and declaratory actions ( Section 43 (1) VwGO). The former is aimed at taking or failing to take a certain action, such as the mayor's intervention against disrupting a meeting. For other requests, such as checking the legality of a situation in the past, an action for declaratory judgment is permissible.

Municipal companies

The municipality is allowed to operate companies to fulfill its tasks. These are, for example, municipal and municipal works . Some voices in jurisprudence assume that this right follows directly from the municipal guarantee of self-government. The definition of municipal entrepreneurship varies across countries. Section 107 (1) sentence 3 GO NRW defines it, for example, as the operation of a company that is active on the market in a way that a private individual could do with the intention of making a profit

The municipality should only be active to a limited extent, so that neither private sector competition is displaced nor the development of trade is hindered. Therefore, the admissibility of taking up a municipal economic activity is subject to legal obligations that are standardized in the municipal regulations. In contrast, the way in which a municipal utility company may participate in the market is largely regulated by competition law.

Requirements for municipal economic activity

Most municipal codes allow municipal economic activity under three conditions. These are based on the German municipal code of 1935.

First of all, a public purpose must require the economic activity of the municipality. As such, every purpose comes into question, the promotion of which is the responsibility of the municipality. In principle, however, the will to generate profits is not sufficient. Otherwise the criterion of the public purpose would not have a restrictive function. However, making a profit is sufficient as a motive insofar as it relates to a subordinate element of a company and is small in scope. This is the case, for example, when a municipality wants to take advantage of the unused capacities of a public company. It is controversial in jurisprudence whether the protection of jobs is a suitable public purpose.

Furthermore, the type and scope of the activity must be in reasonable proportion to the performance of the municipality. This criterion is fulfilled if the activity does not involve the risk that the municipality is economically overwhelmed.

After all, municipal economic activity is subsidiary to private economic activity. The requirements for subsidiarity vary among the federal states: In some, the public purpose may not be better and more economically fulfilled by other companies. In others, it stands in the way of municipal economic activity if a private individual could serve the purpose as well as the municipality.

In principle, the economic activity of a municipality is limited to its municipality. However, some municipal ordinances also allow the municipality to set up companies outside of its territory. This is regularly linked to additional requirements. According to § 107 Abs. 3 GO NRW, the municipality must ensure, for example, that the interests of the municipality in whose territory the company is to be established are not impaired.

It is controversial in jurisprudence whether private individuals can take legal action against the operation of a municipal company. Since German administrative law is based on the principle of the injured party, private individuals must assert that they have been violated in their own right in accordance with Section 42 (2) VwGO . The jurisprudence assumed in some decisions that the admissibility requirements alone protect the municipality from excessive economic demands, which is why private violations of these cannot be reprimanded. An appeal to the freedom of occupation is only possible in cases in which the local economic activity leads to predatory competition. In the meantime, however, case law recognizes that at least the requirement of a public purpose and the subsidiarity of local economic activity also develop protection in favor of private individuals.

Forms of economic activity

For economic activity, the municipality has various legal forms that belong to public law or private law.

The municipalities can choose from the governmental operation , the own operation and the institution under public law as public-law organizational forms . A government enterprise is a company that is a direct part of the public municipal administration. It has no legal personality of its own and is economically closely tied to the municipality. On the other hand, the company is characterized by the fact that it is economically independent from the municipality. If a company is run as an institution under public law, it also appears legally independent.

In addition, the municipality can access legal forms of private law. This has the advantage that their legal framework is usually more flexible. In addition, the municipality can sell shares in a company under private law to third parties. In order to protect the community from excessive financial demands, the community ordinances only allow activity in the form of a society that allows the community to limit its liability. This particularly applies to the GmbH. Even by operating a stock corporation (AG), the municipality escapes unlimited liability, although some municipal ordinances provide that an AG should only be operated if another form of organization is unsuitable. Cooperation across communal boundaries is also possible, as is the participation of natural or legal persons under private law through a public-private partnership (PPP). In an association governed by private law, the municipality exercises its influence by sending representatives to the respective supervisory bodies. However, company law restricts the municipality's ability to issue instructions to its representatives. If the company is controlled by the municipality or another sovereign, it is fully bound by basic rights in accordance with Article 1, Paragraph 3 of the Basic Law, provided that it acts for public purposes.

Non-economic activity

Some municipal ordinances differentiate between economic and non-economic municipal activities. The latter typically include companies that serve the general interest or that the community must operate by law. The municipal ordinances often refer to these as institutions. The operation of a facility is not tied to the admissibility requirements that apply to economic activity.

Municipal supervision

The municipal supervisory authority oversees the actions of the municipality and intervenes as a higher authority if necessary. This essentially pursues two purposes: On the one hand, the supervision of the community ensures that the community complies with its commitment to law and statute according to Article 20 (3) of the Basic Law. On the other hand, the municipal supervision ensures that the actions of the municipality have sufficient democratic legitimacy ( Article 20, Paragraph 2, Sentence 1 of the Basic Law).

Depending on the area of ​​activity of the municipality, the scope of duties of municipal supervision is limited to general legal supervision or also includes specialist supervision.

Jurisdiction

The general municipal supervision is kreisangehorige communities of the counties , through county-level cities by the respective national central authority district government or regional council perceived. The technical supervision is regularly carried out by the authority responsible for the respective specialist area and superordinate to the municipality.

Scope of control

The scope of control of the municipal supervision depends on whether the municipality is active in its own or in the assigned sphere of activity.

In the area of ​​self-government tasks, the municipal supervision only carries out legal supervision . In other words, it checks the legality of the community's actions, not their expediency. As part of its self-administration tasks, the municipality faces the state as an independent legal entity. Therefore a measure of the municipal supervision has an external effect on the municipality. If the other requirements of Section 35 sentence 1 VwVfG are met, it is therefore an administrative act . Therefore, the municipality can take legal action against such a measure with the aid of an action for annulment ( § 42 Paragraph 1 Alt. 1 VwGO).

As part of the assigned tasks, the municipal supervisory authority also carries out specialist supervision. In addition to the legality, it also checks the expediency of community action. If the supervisory authority issues a technical instruction to the municipality, this is usually not an administrative act due to the lack of external impact. In principle, the municipality is not affected by such an instruction in its own law, which is why it cannot take legal action against this. This is only possible if a technical instruction interferes with the municipality's right to self-administration. This applies, for example, when the municipality is told by what means or with what staff to comply with the instructions.

Control instruments

The municipal supervisory authority has preventive and repressive instruments at its disposal to carry out its task.

Preventive control instruments represent serious interventions in the self-government guarantee. Therefore, the law limits this to a few cases. The preventive instruments include reporting obligations, such as those provided for in Section 115 of the NRW GO for some significant acts of the municipality. Approval reservations also have a preventive effect. Section 10 (2) of the BauGB provides for such a plan for the preparation of development plans that are not based on a land use plan.

The repressive instruments include the right to object and to revoke a resolution of the municipal council or a measure by the mayor. If the municipality fails to act in breach of duty, the municipal supervisory authority can instruct the municipality to take the action. If this is unsuccessful, the municipality can take the action instead of the municipality at their expense. In special cases the municipal council can be dissolved.

literature

Cross-country

Country-specific

  • Gerhard Bennemann, Uwe Daneke, Ernst Meiß, Alexander Steiß, Sven Teschke, Walter Unger, Stefan Zahradnik, Jan Hilligardt, Tim Ruder, Wolfgang Schön, Helmut Schmidt (eds.): Municipal constitutional law Hessen . 50th edition. Kommunal- und Schul-Verlag, Wiesbaden 2017, ISBN 978-3-8293-0222-7 .
  • Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: constitutional law, municipal law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 .
  • Wolfgang Hoffmann-Riem, Hans-Joachim Koch (Ed.): Hamburg State and Administrative Law . 3. Edition. Nomos, Baden-Baden 2006, ISBN 3-8329-1006-9 .
  • Harald Hofmann, Rolf-Dieter Theisen, Frank Bätge: Local law in North Rhine-Westphalia. 17th edition, 2017, ISBN 978-3-946736-24-0
  • Jörn Ipsen: Lower Saxony municipal law: textbook . 4th edition. Boorberg, Stuttgart 2011, ISBN 978-3-415-05020-4 .
  • Bernd Kregel: Local law Saxony-Anhalt. Pocket book for political practice. 3rd, revised and expanded edition. BWV - Berliner Wissenschafts-Verlag, Berlin 2005, ISBN 3-8305-0867-0 .
  • Andreas Musil, Sören Kirchner: The law of the Berlin administration: taking into account local authority issues . 4th edition. Springer, Berlin 2017, ISBN 978-3-662-54200-2 .

Individual evidence

  1. ↑ a b c Andreas Voßkuhle , Ann-Kathrin Kaufhold : Basic knowledge - public law: The constitutional guarantee of local self-government . In: Legal Training 2017, p. 728.
  2. ↑ Christoph Gröpl: Art. 28 , Rn. 22. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  3. ↑ Johannes Hellermann: § 2, Rn. 43-44. In: Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: constitutional law, local law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 .
  4. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 6, Rn. 4-8.
  5. ↑ BVerwG, judgment of May 27, 2009, Az. 8 C 10.08, full text = NVwZ 2009, p. 1305.
  6. ↑ Christian Waldhoff: BVerwG, judgment of May 27, 2009 - 8 C 10/08 . In: Legal Training 2010, p. 375.
  7. ↑ Andreas Voßkuhle, Ann-Kathrin Kaufhold: Basic knowledge - public law: The constitutional guarantee of local self-government . In: Juristische Schulung 2017, p. 728 (728–729).
  8. ↑ a b c d Andreas Voßkuhle, Ann-Kathrin Kaufhold: Basic knowledge - public law: The constitutional guarantee of local self-government . In: Juristische Schulung 2017, p. 728 (729).
  9. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 6, Rn. 24.
  10. ↑ BVerfG, decision of November 19, 2002, Az. 2 BvR 329/97, BVerfGE 107, 1 = NVwZ 2003, p. 850 (854).
  11. ↑ BVerfG, judgment of December 20, 2007, Az. 2 BvR 2433/04, 2 BvR 2434/04, BVerfGE 119, 331 .
  12. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 6, Rn. 27.
  13. ↑ a b BVerfG, decision of November 23, 1988, Az. 2 BvR 1619/83, 2 BvR 1628/83, BVerfGE 79, 127 - Rastede.
  14. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 6, Rn. 19th
  15. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 6, Rn. 33.
  16. ^ Andreas Engels: The constitutional guarantee of local self-administration - a dogmatic reconstruction . Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153355-6 , p. 390 .
  17. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 1, marginal no. 13-15.
  18. ^ Andreas Engels: The constitutional guarantee of local self-administration - a dogmatic reconstruction . Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153355-6 , p. 391 .
  19. ↑ BVerfG, judgment of November 27, 1986, Az. 2 BvR 1241/82, Leitsatz = NVwZ 1987, p. 123.
  20. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 11, marginal no. 10.
  21. ↑ OVGE 54, 255 .
  22. ↑ Johannes Hellermann: § 2, Rn. 51. In: Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: constitutional law, local law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 .
  23. ^ Andreas Engels: The constitutional guarantee of local self-administration - a dogmatic reconstruction . Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153355-6 , p. 393 .
  24. ^ Andreas Engels: The constitutional guarantee of local self-administration - a dogmatic reconstruction . Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153355-6 , p. 394 .
  25. ↑ BVerwGE 10, 20 (49-50).
  26. ↑ BVerwGE 33, 125 (156).
  27. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 3, marginal no. 4th
  28. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 3, marginal no. 9.
  29. ↑ BVerwGE 148, 133 .
  30. ↑ Christian Waldhoff: Comment on BVerwG, judgment of October 16, 2013, 8 CN 1/12. In: Legal Training 2014, p. 958.
  31. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 79-80.
  32. ↑ Christian Waldhoff: Comment on BVerfG, decision of November 19, 2014, 2 BvL 2/13 . In: Legal Training 2015, p. 190.
  33. ↑ a b Andreas Vosskuhle, Ann-Kathrin Kaufhold: Basic knowledge - public law: The constitutional guarantee of local self-government . In: Juristische Schulung 2017, p. 728 (730).
  34. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 83.
  35. ↑ Christoph Gröpl: Art. 28 , Rn. 41. In: Christoph Gröpl, Kay Windthorst, Christian von Coelln (eds.): Basic Law: Study Commentary . 3. Edition. CH Beck, Munich 2017, ISBN 978-3-406-64230-2 .
  36. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 84.
  37. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 8, Rn. 1-2.
  38. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 234.
  39. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 8, Rn. 4th
  40. ↑ a b Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 2, marginal no. 2.
  41. ↑ a b Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 2, marginal no. 7-9.
  42. ↑ Hans-Günter Henneke: Art. 84 , Rn. 36-54. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  43. ^ Andreas Vosskuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The execution of federal laws - administrative skills . In: Legal training 2017, p. 316 (318).
  44. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 8, Rn. 16.
  45. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 2, marginal no. 24-25.
  46. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 239-241.
  47. ↑ Johannes Hellermann: § 2, Rn. 66. In: Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: Constitutional law, local law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 .
  48. ↑ Johannes Hellermann: § 2, Rn. 57. In: Johannes Dietlein, Johannes Hellermann: Public law in North Rhine-Westphalia: constitutional law, municipal law, police and regulatory law, public building law . 6th edition. CH Beck, Munich 2016, ISBN 978-3-406-69562-9 .
  49. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 11, Rn. 3-7.
  50. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 11, Rn. 8-13.
  51. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , Rn. 617.
  52. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 10, Rn. 1.
  53. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 3-4.
  54. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 10, Rn. 4-5.
  55. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 21-24.
  56. ^ Martin Burgi: Municipal law . 5th edition. CH Beck, Munich 2015, ISBN 978-3-406-67566-9 , § 11, Rn. 26th
  57. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 11.
  58. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 26-27.
  59. ^ OVG North Rhine-Westphalia, judgment of September 12, 2008, 15 A 2129/08, full text = The Public Administration 2009, p. 40.
  60. ↑ BVerwG, judgment of June 12, 1989, Az. 7 B 123.88, full text = NVwZ 1989, p. 975.
  61. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 37-38.
  62. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 53.
  63. ↑ VGH Hessen, judgment of January 5, 1998, Az. 8 TG 3361/97, full text = NVwZ 1999, p. 1369 (1370).
  64. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 41.
  65. ↑ BVerwGE 119, 305 (307).
  66. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 4, marginal no. 46.
  67. ↑ OVG NRW, judgment of November 4, 2016, Az. 15 A 2293/15, full text = NVwZ 2017, p. 1316.
  68. ↑ Timo Hebeler: Comment on OVG NRW, judgment of November 4, 2016, 15 A 2293/15 . In: Legal worksheets 2017, p. 558.
  69. ↑ BGHZ, 92, 164 (169).
  70. ↑ BGHZ 92, 164 (173).
  71. ↑ BGHZ 97, 224 (226).
  72. ^ Markus Ogorek: The municipal constitutional dispute in the administrative process . In: Legal Training 2009, p. 511.
  73. ^ Markus Ogorek: The municipal constitutional dispute in the administrative process . In: Juristische Schulung 2009, p. 511 (512–513).
  74. ↑ Johannes Hellermann: Local public services and communal self-administration . Mohr Siebeck, Tübingen 2000, ISBN 3-16-147220-9 , p. 145 .
  75. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 8, marginal no. 9.
  76. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 8, marginal no. 11.
  77. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 8, marginal no. 16.
  78. ↑ OVG NRW, judgment of August 13, 2003, Az. 15 B 1137/03, full text = NVwZ 2003, p. 1520.
  79. ↑ OLG Düsseldorf, judgment of May 29, 2001, Az. 20 U 152/00, full text = NVwZ 2002, p. 248 (250).
  80. ↑ Klaus Lange: Public purpose, public interest and services of general interest as key terms in municipal commercial law . In: NVwZ 2014, p. 616 (617).
  81. ^ Klaus Lange: Local law . Mohr Siebeck, Tübingen 2013, ISBN 978-3-16-152753-1 , Chapter 14, Rn. 105.
  82. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 8, marginal no. 21st
  83. ↑ BVerwGE 39, 329 (336).
  84. ↑ BVerwGE 71, 183 (193).
  85. ^ OVG Nordrhein-Westfalen, judgment of August 13, 2003, Az. 15 B 1137/03, full text = NVwZ 2003, p. 1520.
  86. ^ VGH Baden-Württemberg, judgment of March 6, 2006, Az. 1 S 2490/05, full text = The Public Administration 2006, p. 831 (832).
  87. ↑ Max Emanuel Geis, Sebastian Madeja: Municipal Economic and Financial Law - Part I . In: Juristische Arbeitsblätter 2013, p. 248 (251–252).
  88. ↑ Max Emanuel Geis, Sebastian Madeja: Municipal Economic and Financial Law - Part I . In: Juristische Arbeitsblätter 2013, p. 248 (252–254).
  89. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 8, marginal no. 5-6.
  90. ↑ Max-Emanuel Geis: Municipal law: a study book . 4th edition. CH Beck, Munich 2016, ISBN 978-3-406-70256-3 , § 24, Rn. 1.
  91. ↑ Thorsten Schmidt: Municipal law . 2nd Edition. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153358-7 , § 20, Rn. 676-678.
  92. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 10, marginal no. 37.
  93. ^ Andreas Engels, Daniel Krausnick: Municipal law . 1st edition. Nomos, Baden-Baden 2015, ISBN 978-3-8329-6387-3 , part 2, § 10, marginal no. 46.