Local constitutional dispute
The local constitutional dispute proceedings are a dispute between different organs of a uniform legal person under public law about rights and obligations arising from the corporate relationship.
It is a public law dispute of a non-constitutional nature . Accordingly, local constitutional disputes are conducted before the administrative courts . Since the type of procedure contradicts the concept of the administrative court order , it is not regulated there. Bickering parties this "Insichprozesses" are the main applications organs of authorities among themselves. The other cases of application are usually summarized under the terms organ action or disputes under internal organization law .
The local constitutional dispute proceedings can be an interorgan dispute or an intraorgan dispute. Procedure peculiarities and principles of applicability result from the law of the respective federal state , which has the legislative competence for relevant standards of local law .
Constitutional reference
The term municipal constitution dispute has nothing to do with the constitution of the Federal Republic of Germany , the Basic Law (GG), but is derived from the term municipal constitution , which in some federal states describes the law of the municipalities and districts . Therefore, despite the similarity of terms, it is not a dispute of a constitutional nature. The procedure nevertheless has some similarities with the constitutional organ dispute procedure .
Interorgan dispute
The interorgan dispute is the dispute between two communal organs . All organs of a municipality can be parties to the proceedings. The municipal bodies in question are defined in accordance with the municipal regulations in the individual federal states . A majority decision by the body is a prerequisite for bringing an action.
Organ can be mayor here against community representation.
Intra-organ dispute
The intra-organ dispute is the dispute between members of an organ or parts of an organ against the organ.
So community representative A against community representative B.
Eligibility requirements
Kind of action
Since the municipal constitutional dispute procedure is not provided for in the administrative court code, there is also no provision regarding the correct type of action in it. In view of an effective legal protection i. S. d. Art. 19 (4) of the Basic Law, the procedural possibility must basically exist to be able to assert corresponding rights in court. When it comes to the question of the correct type of action, the plaintiff's request must first be taken into account.
However, it can regularly be assumed that an action for rescission and an obligation will not be admissible, since intrapersonal disputes have no external impact.
The following types of action have emerged in case law and legal literature:
- the general performance suit for questions that are aimed at achieving or failing to perform a certain action or measure in the future and
- the declaratory action if an actually closed issue is to be attacked.
The Bavarian Administrative Court has embarked on a special path, however, and the so-called cassatory power suit regarded as held-like form of action. That ruling, however, encountered in the literature on strong rejection, since in this case a mixture of -shaping - and performance complaint was made that even with Art. 19 can be justified, Section 4 of the Constitution..
In special cases, a judicial review complaint may also be permissible, for example if the rights of an organ are to be encroached upon by a statute . For this, however, the possibility of norm control must be opened up in the respective state law, § 47 Paragraph 1 No. 2 VwGO. An action for a continuation of the declaratory judgment is ruled out, " because, according to the prevailing opinion, it can be assumed that bodies of public corporations will behave in accordance with the court decisions "
In addition to these types of action regulated in the Administrative Court Code (VwGO), a sui generis (separate type) lawsuit is also seen as an option.
Legal standing
The right to bring an action arises from Section 42 (2) VwGO (analogous). In addition to the elections carried out by the organ, popular actions are also inadmissible in the local constitutional dispute proceedings. The respective plaintiff must make it clear that his or her own legal rights have been violated. It is therefore necessary to assert a military legal position. It is not incumbent on the members of the body to have the legality of a decision of the body examined in the abstract by the courts. The necessity of being violated in one's own rights applies not only to the individual member, but also to parliamentary groups if they want to carry out a corresponding legal control.
Participation and process capability
The determination of the ability to participate has been developed in practice in the absence of a corresponding regulation in the administrative court code. The way before the administrative court is always open to a municipality body , the chairman of the municipality body, a part of the body or an individual member if his statutory rights as a body or his rights of participation as a body member are impaired. It is partly argued that the ability to participate does not result from § 61 No. 1 VwGO because it is not the natural person who sues for their citizenship, but the office itself. Man only holds this office. Thus, for example, a member of the municipal council who brought a lawsuit would not apply Section 61 No. 1 VwGO. Since the council is not an association i. S. d. § 61 No. 2 VwGO is insofar as there is a lack of voluntariness (one cannot choose the other members of the municipal council), § 61 No. 2 VwGO is applied analogously. Accordingly, representatives of this opinion also apply Section 62 (3) VwGO analogously. The opposite view applies directly to § 61 No. 1 VwGO.
Respondent
In principle, the correct respondent is not the municipality, but the organ / part of the organ against which the asserted claim is supposed to exist or through which the alleged infringement is supposed to have occurred.
Justification
A municipal constitutional dispute is not justified when the unlawfulness of the contested decision is established, but only when it can be proven that the plaintiff's organizational rights were violated by the violation of the law.
costs of the process
The municipality bears the costs of the admissible procedure as part of its duty to provide the organs with the means necessary to exercise their office.
