Organ lending
German public law speaks of an organ lending , especially in administrative law when an organ of a sovereign acts for another sovereign and acts as an external organ of the borrowing sovereign.
Examples
Between states and municipalities
An example in most federal states is the district administrator , who is basically an organ of the district , but is also “loaned” by the state as a general lower state administrative authority .
Between the federal government and the states
The Finance Administration Act (FVG) regulates in Section 5b:
“By means of an administrative agreement with the respective state, the federal government can transfer the management and execution of its construction tasks by way of organ lending to state authorities as well as state companies, special state assets and legal entities under public law directly related to the state. The administrative agreement must stipulate that the state authorities have to follow the orders of the competent federal ministry. "
The federal construction tasks - apart from the construction tasks for constitutional organs of the federal government, the highest federal authorities, construction matters of the federal government in Berlin as well as the building matters of the Federal Republic of Germany abroad - have been transferred to the states through bilateral organ lending agreements on the basis of this authorization. Details are regulated in the guidelines for the implementation of federal construction tasks (RBBau).
Another case of organ lending from state authorities in favor of the federal government is regulated by Section 18a FVG:
"In the period from July 1, 2009 to June 30, 2014, the Federal Ministry of Finance, which is responsible for the administration of the motor vehicle tax, makes use of the state tax authorities, including the licensing authorities, for the administration of motor vehicle tax, insofar as they are in accordance with Section 12 Paragraph 5 Clause 2, Section 13 Paragraph 1a sentence 5 and paragraph 2 sentence 2 of the Motor Vehicle Tax Act act as state financial authorities by way of organ lending. These are deemed to be federal finance authorities insofar as they manage vehicle tax and are subject to the technical supervision of the Federal Ministry of Finance. The highest financial authorities of the federal states have to guarantee the execution of the orders of the Federal Ministry of Finance. "
The reverse case of organ lending by federal authorities in favor of the federal states has been regulated in some federal states for the implementation of the law on the abolition of false subsidization in the housing sector (AFWoG). For example, the state of North Rhine-Westphalia has concluded an administrative agreement with the Federal Railroad Fund on organ lending to process the incorrect booking charge.
In European administrative law
In European administrative law, too, it is discussed whether cooperation by way of organ lending is an option.
consequences
A theoretical advantage lies in the saving of the costs for an own organ. In practice, however, reimbursements are agreed, e.g. B. in § 18a Abs. 2 FVG.
The organ concerned is to be treated legally as a separate organ when working for the borrower. As a result, it is subject to his instructions, his actions are attributable to him and he is therefore also liable .
Organ lending is also relevant for choosing the right counterparty in administrative procedural law : According to the legal entity principle, which is expressed in Section 78 (1) No. 1 VwGO, a lawsuit must be filed against the legal entity of the respective authority. If, in the example above, the district administrator acts as the district authority, then the district must be sued; If, on the other hand, the district administrator acts as a state authority by way of organ lending, then the “state” (i.e. the respective federal state) must be sued.
Demarcation
A differentiation from organ lending is the case that a sovereign merely carries out his duties on behalf of another and uses his own organs for this purpose. This occurs, for example, with the compulsory tasks according to the instructions of the community. Because organ lending is a serious interference with the organizational sovereignty of an administrative body, it requires a legal basis; in case of doubt, mere order management can be assumed.
Individual evidence
- ↑ The Federal Office for Building and Regional Planning (BBR) is responsible for this.
- ^ Administrative agreement . Accessed December 31, 2014.
- ↑ Florian Wettner: The administrative assistance in European administrative law. Mohr, Tübingen 2005, ISBN 978-3-16-148740-8 , p. 152 ff.
