Saxon municipal code
| Basic data | |
|---|---|
| Title: | Municipal code for the Free State of Saxony |
| Short title: | Saxon municipal code |
| Abbreviation: | SächsGemO |
| Type: | State Law |
| Scope: | Saxony |
| Legal matter: | Administrative law |
| Original version from: | April 21, 1993 (SächsGVBl. Pp. 301, 445) |
| Entry into force on: | May 1, 1993 |
| New announcement from: | March 9, 2018 (SächsGVBl. P. 62) |
| Last change by: | Art. 1 G of December 13, 2017 (SächsGVBl. P. 626) |
| Effective date of the last change: |
1st January 2018 |
| Weblink: | Legal text |
| Please note the note on the applicable legal version. | |
The municipal code for the Free State of Saxony , or Sächsische Gemeindeordnung (SächsGemO) for short, is the essential source of law for the powers, rights and responsibilities of the municipal self-governing bodies in the Free State of Saxony .
Constitutional classification
Municipal bodies according to the Saxon municipal code are cities and municipalities. Article 3 of the Constitution of the Free State of Saxony states that municipalities within the meaning of this law are the cities and municipalities belonging to the district as well as the independent cities . For the districts, which are also municipal corporations, the Saxon District Code (SächsLKrO) is the primary source of law.
The basic legislative power of the German federal states, consequently for local law in their respective territories, is derived from Art. 70 GG . According to Article 28 of the Basic Law, there is an objective area of protection for local self-government. With its constitution, Article 84 of the Free State of Saxony regulates local self-government. From Article 85, Paragraph 1, the municipalities and districts have priority for the fulfillment of municipal tasks. According to Article 87 Paragraphs 2 and 3 of its constitution, the Free State of Saxony grants a general guarantee of financial resources, which justifies the right to participate in the financial equalization scheme. In Article 85, paragraph 2, the principle of connectivity is laid down, according to which, when new tasks are transferred from the state level to the municipalities, in the event of additional burdens arising from this, a mandatory regulation on the cost allocation of the municipalities must be made.
The Saxon municipal code is based on the model of the South German council constitution , after the mayor is elected by the people and heads both the administration and the council.
history
The Saxon State Parliament passed the first version of the Saxon municipal code on March 18, 1993. It was published on April 21, 1993 (SächsGVBl. Pp. 301, 445) and came into force on May 1, 1993. It replaced the communal constitution of the GDR, the law on the self-administration of municipalities and districts in the GDR of May 17, 1990, which had been adopted by the People's Chamber and had been in force until then .
Structure of the Saxon municipal code
General
The Saxon municipal code is divided into six parts, some of which contain several sections.
First part: legal status, tasks and area of the municipalities
First section: legal status and tasks
Section 1 gives a basic description of what a community is according to this law. It is the basis and link of the democratic constitutional state . The fulfillment of their tasks moves within the framework of civic self-government for the common good of all residents, which are supported by the bodies elected by their citizens. Organs are the municipal council and the mayor . Furthermore, their constitutional status is defined as a legally competent regional body under public law .
The tasks of the municipalities are listed in general in § 2 and assigned to the public common good. Appropriate facilities are to be created for the social, cultural, sporting and economic well-being of their residents. In the following, mandatory statutory tasks and instruction tasks defined by law are discussed. An interference in the rights of the municipalities may only take place by law or on the basis of a law.
Section 3, within the meaning of this Act, lists the municipalities and municipalities as well as the municipalities that are not part of the district . Large district towns with a population of 17,500 or more are only granted this status upon application and with proof of a three-year population above this threshold. However, they remain district cities. The paragraph says in paragraph 4 that the district-free cities usually exercise the tasks of the lower administrative authority according to federal or state law stipulations.
The statutes of the municipalities are set out in § 4. The issuing of a main statute is declared a mandatory task.
The municipality name is given according to § 5. The determination, determination and change of the name of the municipality requires the approval of the legal supervisory authority in agreement with the highest legal supervisory authority . A designation “city” as a new award can be given by the Ministry of the Interior upon request, depending on the infrastructure and settlement structure. The naming of the parts of the community as well as the publicly usable streets, paths, squares and bridges within the built-up community area is at the discretion of the community.
For the use of coats of arms , flags and official seals , the relevant framework conditions are set out in Section 6. The use of the municipal emblems is subject to approval, which does not affect artistic and scientific purposes.
Second section: territory of the municipality
According to Section 7, the territory of the municipality includes all properties that belong to it according to the relevant legal situation. The change of the municipal area according to § 8 is only possible for the general good and is subject to legal supervisory approval. Such changes include incorporation into another municipality, the merging of municipalities, the reclassification of parts to another municipality, and the outsourcing of parts to a new municipality. Any changes made by law or ordinance require a hearing of the communities concerned. According to § 8a a population consultation is required, which in a previously conducted referendum unnecessary. There is also the option of an agreement between municipalities to change the municipality area, which must be decided by a majority of the municipality council. Section 9 provides for comprehensive procedural regulations for this.
Second part: residents and citizens of the municipality
In the 2nd part of the municipal code, the legal status as well as the rights and obligations of residents and citizens are standardized. Section 10 defines residents of the municipality as anyone who lives in the municipality. This entitles the residents to use public facilities of the municipality and obliges them to bear the related burdens. Landowners and traders residing outside the municipality can exercise limited rights and have to contribute to the municipal charges.
The municipality continuously informs its residents about the generally important matters in their area of responsibility. You should also use electronic forms. This information obligation laid down in § 11 encompasses general concerns as well as planning and projects of the municipality, whereby the social, cultural, ecological or economic interests of its residents are affected. The early and comprehensive manner of the local information is prescribed. Specific forms of this information request can be found in the provisions of the municipal announcement ordinance and must therefore be regulated by an announcement statute.
The right of petition in community matters regulated in § 12 is available to every person or several people together. The petition is legally defined here and includes complaints, requests and suggestions. As a rule, a decision on a petition should be given within six weeks; if the deadline is exceeded, an interim decision must be issued. Petitions can fall within the competence of the municipal council, for this purpose it can form a petitions committee . According to Section 13, the municipalities have the task of assisting the residents in initiating administrative proceedings within the scope of their administrative capacity, even if the matter falls within the responsibility of the district office or the state management . Municipalities should receive applications from residents to the district office and the state administration and forward them immediately .
The compulsory connection for the public technical infrastructure in the public good as well as the compulsory use of funeral facilities as well as waste disposal facilities and slaughterhouses are laid down in § 14. Spatial or legally subjective restrictions on the compulsory connection and use can be determined by statutes.
According to the regulations of § 15, a citizen of the municipality is every German (within the meaning of Art. 116 GG ) and every Union citizen who has reached the age of 18 and has been habitually resident in the municipality for at least 3 months . In case of doubt, the main residence applies . Responsible participation in civic self-government tasks is declared to be the right and duty of all citizens. Special rights of citizens with Sorbian nationality (literal term according to § 15 (4) SächsGemO; in Article 6, SächsVerf. The "Sorbian ethnicity") are to be guaranteed by the municipalities, in particular by means of statutes the promotion of the Sorbian language and culture, which is bilingual naming of public bodies, institutions and the regional transport infrastructure authorized .
Citizens have the right to vote in municipal elections and the right to vote in municipal matters in their municipality. These stipulations can be found in Section 16, which also refers to the right to vote in local elections for Union citizens under Article 40 of the EU Charter of Fundamental Rights .
According to § 17, all citizens of the municipality are obliged to take on and exercise voluntary work for the formation of political will and the fulfillment of tasks. This can be transferred to others with their consent. The authority to appoint such an unpaid public honorary office is basically the responsibility of the municipal council. It can be revoked at any time. A rejection by the citizen can take place according to § 18 with important reasons, such as a persistent illness, the age over 65 years, an existing community honorary position, ongoing family care tasks or the incompatibility with a service position. The municipal council decides on a justified rejection, in the case of honorary mayors the responsible legal supervisory authority . An appointment as a lay judge or the appointment ( district court ) as a supervisor does not count as honorary activity in this context. With the takeover, § 19 results in the unselfish and responsible voluntary work, which includes confidentiality in the case of statutory provisions or customary law . Volunteers must not be in a conflict of interest with their obligations in performing their tasks. According to § 20 , this leads to exclusion due to bias , which in this legal norm u. a. is described in more detail with a list. This list includes family relationships, interests of legal entities under private or public law. The procedure for meetings and decision-making in the municipal council for the legally compliant handling of bias is described in a binding manner. According to § 21, there is a legal right to reimbursement of necessary expenses and loss of earnings for voluntary work. These claims are not transferable.
The residents should be informed and advised on generally important matters in the community. To this end, the municipal council should hold a residents' meeting once a year in all or in districts. The management is incumbent on the mayor , who announces it with the local announcement at least one week before the date with the place, time and agenda. Citizens can also submit an application to convene a residents' meeting if they can provide the supporting signature of at least 10 percent of all residents who have reached the age of one. The main statute can reduce the quorum to 5 percent.
Variants and procedures of direct democracy at the municipal level can be found in Sections 23 to 25. According to this, it is possible to initiate a resident application, a referendum or a referendum. The referendum is equivalent to the decision in the municipal council.
The honorary citizenship can be granted by the municipal council to persons who have made a special contribution to the development of the municipality or the well-being of its citizens. The regulations for this can be found in Section 26. Withdrawal for important reasons is possible.
Third part: constitution and administration of the community
First section: municipal council
According to § 27, the municipal council is the citizen's representative and the main body of the municipality. In cities it is called city council. The members are called local councils and city councils. Until 1994 the organ was called the City Council. The tasks of the municipal council consist in establishing principles for the municipal administration and it decides on all matters which are not in the area of responsibility of the mayor. The non-transferable tasks are listed in Section 28, including resolutions on statutes, zoning plans , changes to the municipal area, resolutions on the budget structure concept, annual financial statements of the municipality as well as economic plans and annual financial statements from economic activities, general determination of municipal taxes and the establishment, takeover, change, sale or dissolution by companies, public institutions or holdings in such. Joining or leaving special-purpose associations is also the decision-making authority of the municipal council. Furthermore, the authority to control the administration, in particular to implement its resolutions, is exercised by the municipal council. Although the mayor has the organizational sovereignty of the administration, the municipal council is involved in the decisions on the appointment, hiring, upgrading and dismissal of employees.
The municipal council consists of the municipal councils and the mayor. The numerical composition of the municipal council / city council is staggered according to § 29 according to the number of inhabitants, for example up to 500 inhabitants there are 8 municipal councils and with more than 400,000 inhabitants there are 60 city councils. The main statute can allow deviations from this and allow an increase of up to 10 mandates. In accordance with the electoral principles , the members of the municipal council are elected by the citizens in general, direct, free, equal and secret elections according to the principles of proportional representation. According to Section 31, citizens of the municipality as well as Union citizens resident here according to Art. 20 , Para. 2, Item b of the TFEU can be elected with the same rights. Section 32 names obstacles to eligibility for election to the municipal council, which are mainly defined by structural conflicts of interest. The municipal council establishes the fact of an obstacle, which in the relevant case leads to an administrative act . According to Section 33, the electoral period is five years. Section 34 contains regulations for cases of resignation, replacement or supplementary elections.
According to Section 35, the municipal councils fulfill their mandate on a voluntary basis. In the first meeting, the mayor publicly obliges them to conscientiously exercise their mandate. The candidacy and the exercise of a mandate are protected; notice of termination or dismissal as well as a transfer or other professional disadvantages due to this honorary position are prohibited. Community councils work for the community according to the law and free conviction oriented towards the common good. Your participation in the municipal council meetings is mandatory. According to Section 35a, there is the right to form parliamentary groups that are part of the municipal council and are allowed to present their views publicly. The parliamentary group status is regulated in rules of procedure. Political groups participate in the decision-making process of the municipal council. In communities with more than 30,000 inhabitants, they are entitled to financial resources from the community budget to organize their work.
The chairmanship of the municipal council is exercised by the mayor according to § 36. Convening a meeting in writing or electronically is one of its obligations. The time, place and agenda of the public meetings are to be announced in good time as is customary for the location. This does not apply to the convening of the municipal council in urgent cases. The municipal council decides to fix the place and time of its regular meetings. According to Section 37, municipal council meetings are generally public. There is a duty of confidentiality for matters in closed meetings until the municipal council, in agreement with the mayor, cancels them.
Municipal council meetings are chaired by the mayor in accordance with Section 38; he can hand them over to a local council. The mayor is responsible for the authority and the house rules . Regulations on the course of business are laid down in rules of procedure in compliance with statutory provisions. According to § 39, the quorum is given if it has been properly convened and the committee is represented by at least half of all voting members. The paragraph provides for procedural steps if there is no quorum for various reasons. The resolutions of the municipal council are made through votes and elections , to which the mayor is equally entitled. As a rule, an open vote is common, on request or for important reasons, votes should be held in secret. In principle, elections are conducted secretly and using ballot papers . A resolution is passed if it came about by a simple majority of the valid votes. A tie means rejection. About the substance of the meetings is in accordance with § 40 a transcript to customize. The electronic form is excluded. The signing is carried out by the chairman of the municipality council, two other members and the secretary.
Sections 41 and 42 deal with decision-making committees, their responsibilities and composition. The municipality council can set decision-making committees in the main statute of the municipality and assign tasks to them. The decision-making committees are to be newly formed after each municipal council election. Their composition should correspond to the distribution of mandates in the municipal council. The members sent by political groups can also be recalled by her. The mayor is to be informed of this in writing. In addition, there are advisory committees according to the provisions of the main statutes, which are described in Section 43. Their meetings are not open to the public.
In the course of business of the municipal council including its committees, according to Section 44, residents and experts have different opportunities to participate. Knowledgeable residents and experts can be called in to the meetings for individual matters. There is even the possibility of appointing such persons to advisory committee members in an honorary capacity until further notice. Residents and representatives of citizens' initiatives can be given the right to speak and ask questions in the public session or they can be questioned in a hearing. The Assistant Secretary shall attend council meetings and their business circle assigned committee meetings in an advisory capacity.
According to § 45 the formation of a council of elders is possible, which advises the mayor on the organization of the agenda and the course of business. Details are regulated in the rules of procedure.
For matters that are to be kept secret, according to Section 46, there is the possibility of forming an advisory council made up of five municipal councils to advise the mayor. Only members of the municipal council who are obliged to comply with the secrecy regulations applicable to the authorities of the Free State of Saxony can belong to this advisory board. The mayor is the chairman and the meetings are not open to the public.
The formation of other advisory boards is possible according to § 47, to which community council members and knowledgeable residents belong. According to their purpose, they can be committees for, for example, senior citizens or nature conservation issues.
For the participation of children and young people, the municipality should take into account the interests of this age-specific group of residents in planning and projects. According to § 47a, it is left to the municipalities to find and implement suitable participation procedures.
Second section: mayor
Sections 48 and 49 describe the electoral principles and the requirements for the eligibility of persons for the mayor function. The mayor is elected by the citizens in a general, direct, free, equal and secret ballot. The principles of majority voting and the provisions of the Local Election Act (KomWG) apply.
Germans within the meaning of Art. 116 GG as well as Union citizens who have reached the age of 18 and who meet the general personal requirements for an appointment as a civil servant can become mayor . Only those who have not yet reached the age of 65 can be elected to the office of full-time mayor.
According to Section 51, the mayor is also head of administration and chairman of the municipal council. His regular term of office is 7 years. He represents the community externally. With a population of 5,000 or more, there is a mayor as a full-time civil servant. In certain cases, the mayor's full-time position can be determined by the main statute for more than 2,000 inhabitants. The official title of Lord Mayor is only available in major district towns and towns. Upon assuming office, the mayor is sworn in and committed by a member of the municipal council . A deselection is possible only by the citizens with a majority of at least 50 percent of the valid votes. The voting procedure is equivalent to a referendum. The voting process can also be initiated from within the community council with a three-quarters majority of all members.
Section 52 describes the position of the mayor in the municipal council. He is responsible for the preparation of all meetings in the municipal council and the committees as well as for their implementation in the course of business of the administration. He must contradict resolutions of the municipal council if they are unlawful in his opinion . In this case, a meeting is to be convened, stating the reasons for the objection, to deal with the matter again. If no agreement is reached, the mayor must object again and immediately obtain a decision from the legal supervisory authority.
The mayor has to inform the municipal council about all matters of importance for the municipality and administration. In the case of significant plans and projects, the municipal council must be informed as early as possible about the intentions and views of the municipal administration as well as continuously about the status and content of the planning work.
According to Section 53, the mayor is responsible for the proper handling of administrative activities. He is responsible and responsible for the internal organization of the municipal administration (organizational sovereignty). Instructional tasks are carried out by him in his own responsibility. The mayor is the superior , superior and the highest service authority for the employees of the municipal administration.
According to Section 54, in municipalities with less than 10,000 inhabitants, only members of the municipal council are eligible as deputies of the mayor. Your representation is limited to the incapacity of the office holder. In municipalities over 10,000 inhabitants to § 55 full-time councilor of the mayor be appointed as deputy. This is mandatory in urban districts. The municipal code specifies a maximum number of full-time councilors, which is graduated depending on the number of inhabitants. The councilors are subject to the mayor's authority. The councilors work as full-time civil servants with a term of office of 7 years. According to Section 56, they must meet the professional requirements required for the office. They take office through an election in the municipal council. It is possible to vote out before the end of their term of office. According to § 57, the obstacles to their official activity are the same as in the case of the mayor (§ 49). Aldermen may not have a bias relationship with one another or with the mayor .
Third section: employees and agents of the municipality
According to Section 61, the employees of the municipality must contribute to the proper fulfillment of their tasks through their professional qualifications. In the employment relationship there must be at least one employee qualified for career group 2 in the field of general administration , unless the mayor himself fulfills this condition.
The community promotes training and further education for its employees.
According to Section 62, the specialist in finance must have relevant training and qualifications in career group 2 in the area of general administration. The mayor is not allowed to exercise this area of responsibility himself.
For the employment structure of the municipality, a position plan must be drawn up according to Section 63 . Separate position plans are to be kept available for the employees in the areas of the special fund .
According to § 64, representatives of the municipality fulfill special cross-sectional functions, for example the equal opportunities officer or the integration officer . Commissioners can take part in meetings of the municipal council and within their area of responsibility they have an advisory voice in committee meetings.
Fourth section: local authority
According to the Saxon municipal code, it is possible for individual localities to be formed in municipalities, for example by combining neighboring districts. This may consequently main statute municipality obtained on the basis of a settlement Constitution local councils with an elected mayor are formed as honorary rank on time. For this purpose it is possible to set up individual administrative offices in the localities. The numerical composition of the local council is to be regulated in the main statute. The mayor has an unlimited right to speak at its meetings . Sections 65 to 69a regulate the working methods and responsibilities of the local councils. Appropriate funds can be allocated for the fulfillment of tasks by the municipal council.
Section five: borough constitution
In the district-free cities, on the basis of their main statutes, it is possible to set up city districts with city district councils and their own constitutions in their territory. In this territorial division, the settlement structure, demographic conditions and urban development goals should be taken into account. Financial resources have been made available to the city district advisory board to carry out its tasks. Sections 70 to 71a provide the framework for this municipal administrative level. The city district councils have the right to make proposals within the scope of their territorial competence. Its members are determined by the municipal council.
Fourth part: community economy
First section: budgetary management
Section 72 sets out the general budgetary principles according to which the communal budget is to be planned and carried out. Basically, the requirements of the macroeconomic balance must be taken into account. The principle of thrift and economy applies. Financial speculation is prohibited. The financial management of the municipalities with a double entry bookkeeping ( double entry ) ensure. This must show the assets, earnings and financial position separately according to the principles of proper accounting . The budget for results must be balanced in each financial year . A deficit caused by deficit positions in the capital position of the municipality is to be avoided. If such a situation becomes apparent or if over-indebtedness has already occurred, there is an obligation to draw up a budget structure concept.
According to Section 73, the principles of revenue generation apply to the financing of the municipalities. The following principles are decisive:
- Collection of duties according to legal regulations,
- the services resulting from the fulfillment of tasks are to the extent justifiable and necessary, to be financed from remuneration ,
- the remaining income is to be obtained from tax revenue, local taxes and allocation allocations.
When collecting income, the economic strength of the taxpayer must be taken into account.
Municipalities may only take out loans if other forms of financing are excluded or inexpedient. The acceptance of donations, gifts and other allowances is permitted.
According to Section 74, the municipal council must adopt a budget charter for proper budget financing and implementation . It is one of the three mandatory statutes. Section 75 deals with the budget and its structural structure, including the establishment plan . Its content binds the administration in the execution of the budget management oriented towards it. About the steps necessary to issue the budget statute until it becomes legally effective for the municipality. Some parts of it require approval from the legal supervisory authority, which is why the public announcement can only be made afterwards. If there is a significant imbalance during the budget execution, for example deficits in the budget , unforeseeable expenses or changes in the establishment plan, a supplementary statute must be passed by the municipal council in accordance with Section 77 . If there are delays in drawing up the budget or if the budget charter was not yet legally effective at the beginning of the year, provisional budgetary management with restricted administrative action occurs in accordance with Section 78 . In the course of the financial year there may be over-budget and unscheduled expenditure or income from time to time. If the volume is substantial, these must be approved by the municipal council in accordance with Section 79.
The municipality is obliged to operate a five-year financial plan and to align its budget management accordingly. According to Section 80, the first plan year is the current budget year. The most important component is a community investment program. The financial planning ensures an orderly budget development and enables a borrowing plan confirmed in the municipal council according to the expected efficiency.
Commitment authorizations facilitate the financial security of multi-year investment measures. They are a special form of budget execution on the basis of internal financial planning. If borrowing is connected with the commitment authorizations, Section 81 prescribes an obligation to obtain approval from the legal supervisory authority according to Section 119. Borrowing for municipalities is possible according to § 82. They are used to implement municipal investment projects, investment support measures and debt rescheduling. The legal regulator must approve the entire loan volume. To ensure that cash funds are paid out to beneficiaries in good time, the municipality can take out cash loans up to a maximum amount specified in the budget charter. Above a certain amount, this borrowing is also subject to approval by the legal supervisory authority according to Section 84.
Section 86 sets the general framework for the area of responsibility of the municipal treasury. A special law determines the details. Areas of the special fund have special funds that are supposed to be connected to the municipal fund . According to Section 87, there is the possibility of having the cash transactions carried out by a body outside the municipal administration. Only programs that are approved by the Saxon Institute for Communal Data Processing may be used for the technical handling of the communal budget management on an external basis .
Sections 88, 88a and 88b describe the structure and structure of the municipal annual financial statements. In § 88, Paragraph 2, the three-component accounting (new municipal budget and accounting) is stipulated binding. According to § 88c, the municipality is obliged to draw up the annual accounts and the overall accounts within 6 months of the end of the financial year and to sign them by the mayor. The public announcement of this report is to be announced in the local form .
Second section: property of the community
The property of the community serves the common good and should be preserved according to § 89. The acquisition of assets by the municipality must be geared towards the fact that they are necessary for the fulfillment of tasks. Section 90 contains the regulations for the sale of municipal property. As a rule, assets may only be sold at their full value; Exceptions require a special public interest. Some of the listed cases of asset sales require legal supervisory approval. For the trust assets to be administered according to § 92 , special budget plans are to be drawn up and special accounts introduced.
In accordance with Section 91, the assets of organizational units in which special accounts or legally dependent regional foundations are managed in accordance with statutory provisions are referred to as special assets of the municipality . Section 93 enables trust assets to be exempted from the obligation to undertake financial planning by ordinance of the Ministry of the Interior. The local foundations are named in Section 94 and administered by the municipality, unless a statutory provision makes other provisions.
Third section: companies and participations of the municipality
In order to fulfill its tasks, the municipality may found, operate or participate in companies if this is justified by a public purpose. This fundamental statement in Section 94a opens the section of the municipal code that deals with companies and company holdings. The performance of the municipality determines the appropriate relationship to the type and size of the company. The economic activity is also subject to the condition that the purpose is not or cannot be fulfilled better and more economically by another legal entity.
The municipality has to run its commercial enterprises in such a way that their public purpose is fulfilled. The fulfillment of the public purpose must not be impaired by the fact that the companies generate income for the municipality's budget. Entrepreneurial activities of municipalities in the areas of electricity, gas and heat supply may also be carried out outside their area, as they serve a public purpose. The efficiency of the community is an important criterion for the responsible delimitation of the type and scope of such activities.
Section 95 lists the possible types of company. After that, three forms are possible:
- 1. The management of structural units in accordance with the budgetary provisions of the municipal code (for example government operations ),
- 2. The management of the fund in municipal enterprises ,
- 3. The management as legal persons under private law .
Own businesses, as described in Section 95a as special assets, work as municipal companies without legal personality , provided that the nature and scope of their activity justify self-administered business management. These work on the basis of their own statutes and are managed by a management team. The municipal council is controlled by a works committee. As part of the company's own operational purpose, the management represents the community externally.
Furthermore, according to Section 96, municipalities are able to operate their own companies under private law or to participate in such in order to fulfill their tasks. According to the municipal code, the influence of the municipality required for these purposes must be ensured when drafting the partnership agreement or a related statute . A municipality may only become active with a stock corporation (own company or participation) if the public purpose pursued with it cannot just as well be realized in another legal form. The provisions of Section 96a result in mandatory points for the drafting of the articles of association. An important point here is the limitation of the municipality's liability, which must be based on its efficiency. The control processes required to secure the municipality's influence are carried out by the mayor and other persons confirmed by the municipal council, subject to revocation. These can be administrative employees, external experts, municipal council members whose task is to be performed on the basis of municipal council resolutions or instructions. The persons concerned are requested or even obliged to take part in further training. As part of the investment management stipulated in Section 99, the municipal council must be presented with the key economic indicators in the report on proprietary operations and companies under private law as well as relevant special-purpose associations . The results summarized in the participation report are to be submitted to the legal supervisory authority; essential parts of them must be available for inspection. This possibility is subject to the duty of the customary announcement. For the approval of concession contracts , the regulations according to § 101 apply, according to which the fulfillment of municipal tasks must be ensured. The legal transactions according to Section 96, Paragraph 1 and the relevant municipal council resolutions are subject to approval in accordance with Section 102 in a legal supervisory procedure. In some other cases, only evidence of compliance with legal requirements is required or there is only an obligation to notify the legal supervisory authority.
Fourth section: examination system
Sections 103 to 106 deal with the tasks of the auditing office (RPA) in the municipality. If the population is below 20,000, a suitable employee can be appointed for this task. The area of responsibility for auditing is directly subordinate to the mayor and works independently and free of instructions. The primary task is to review the municipality's annual accounts and other related documents within three months and before they are determined by the municipality council. As a result, the RPA submits a test report to the mayor, who is obliged to clarify the issues complained of. Then a summarizing final report of the RPA is to be sent to the municipal council.
According to § 108, the responsibility of the supra-local auditing authority lies with the Saxon Court of Audit . Section 109 lists its tasks in relation to municipal budget management. The audit responsibility can also extend to the organization and economic efficiency of the administration and the companies of the municipality (§ 95) as well as to corporations. The supra-local audit should be carried out within 5 years after the end of the respective budget year, taking into account all complete annual financial statements and reports. In addition to the administration, the structural units of the special fund, the business units administered in trust, the companies in the municipality and their holdings must be taken into account.
The test report is sent to the municipality, which must respond to the supra-local auditing authority and the legal supervisory authority on significant complaints. The test report must be submitted to the municipal council after 6 months.
Part five: supervision
According to Section 111, the essential content of the supervisory tasks of the municipal self-government bodies is divided into two areas of activity, legal supervision and technical supervision . The legal supervisory powers are directed to the lawful conduct of the administration. The technical supervisory powers, on the other hand, serve to check whether the instructions in the municipalities have been fulfilled legally and appropriately. Control activities in this regard must be carried out in such a way that the rights of the municipalities remain unaffected and the fulfillment of their duties is ensured. Furthermore, their determination and willingness to take responsibility must be encouraged.
The respective district office is the legal supervisory authority for municipalities belonging to the district . For the district-free cities, this function is carried out by the State Office of Saxony, the latter also being the upper legal supervisory authority for all municipalities in the Free State of Saxony. The State Ministry of the Interior is the supreme legal supervisory authority. The legal supervisory functions in the district offices are carried out as instructions. The right to issue instructions lies with the upper and the highest legal supervisory authorities and is not restricted. The upper and the highest authorities can initiate their own necessary measures in the event of non-compliance with an issued instruction. In the event of a conflict of interest of the district office in the course of legal supervisory proceedings, the higher legal supervisory authority decides. According to § 113, the legal supervisory authorities can obtain information on individual matters of the municipalities in their own way of performing their tasks. According to Section 115, there is a right to issue orders to a municipality that does not fulfill its obligations. According to Section 116, it can also be enforced by means of substitute performance .
In cases where the municipality's practice deviates significantly from the legal requirements and the powers of the legal supervisory authority have proven to be inadequate, it can appoint a representative under Section 117 who will restore the law at the expense of the municipality. The mayor's term of office may also end prematurely (Section 118) if the mayor does not meet the requirements and the continuation of his office is not in the public interest.
All resolutions of the municipality that are required to be submitted in accordance with statutory provisions must be confirmed by the legal supervisory authority and may only be implemented afterwards. A fictitious approval of one month applies here . If, however, resolutions require approval, approval must be awaited before implementation. These principles laid down in Section 119 are of fundamental importance for the budget cycle and the associated municipal practice.
If the municipality has reason to raise claims against municipal councilors or the mayor, these will be prosecuted by the legal supervisory authority in accordance with Section 121 at the expense of the municipal budget.
The technical supervision, their specific responsibility and the associated exercise are usually based on special legal provisions. If such regulations do not exist, Section 123 states that the technical supervision lies with the competent legal supervisory authorities. In this case, the highest technical supervisory authority is the relevant relevant ministry. The highest technical supervisory authorities can create and apply standardized procedures for electronic document and data exchange between the authorities to a limited extent and in accordance with federal and European regulations.
Sixth part: other regulations
Under the other provisions, in Section 124 there are regulations for the treatment of administrative offenses that may occur in connection with the provisions of the Saxon municipal code. This includes violations of municipal statutes . Furthermore, § 125 stipulates with regard to the number of inhabitants of a municipality that it acquires legal significance, the information provided by the State Statistical Office as of June 30 of the previous year based on the most recent census is decisive. Section 127 lists the cases in which the Saxon State Ministry of the Interior may issue appropriate ordinances on municipal issues. The powers of this ministry to issue templates for municipal budget management are listed in Section 128 with essential examples. The following paragraphs deal with other special administrative regulations and with transitional provisions. The applicable Saxon municipal code ends with Section 130b.
Supplementary legal provisions within the municipal law of the Free State of Saxony
In addition to the Saxon municipal code and the corresponding Saxon district code, there are numerous other legal bases for municipal practice in the Free State of Saxony, which make further central statements about municipal structures, organs, offices, tasks and responsibilities. These include in particular the Local Election Act (KomWG), the Local Election Ordinance (KomWO), the Communal Announcement Ordinance (KomBekVO), the Saxon Law on Communal Cooperation (SächsKomZG), the Saxon District Reorganization Act (SächsKrGebNG) and, for the public budget, the SächsKaxonG Saxon municipal budget regulation (SächsKomHVO) and the Saxon municipal cash and accounting regulation (SächsKomKBVO). This list is not complete, as there are further ordinances and implementing laws relating to federal regulations.
Web links
- Free State of Saxony: Saxon municipal code . online on REVOSax
Individual evidence
- ↑ Wolf-Uwe Sponer, Ralf Tostmann: Municipal law . Kommunal- und Schul-Verlag, Wiesbaden 2016, pp. 16-17, ISBN 978-3-8293-1194-6
- ↑ Wolf-Uwe Sponer, Ralf Tostmann: Municipal law . Kommunal- und Schul-Verlag, Wiesbaden 2016, pp. 43, 51, ISBN 978-3-8293-1194-6
