Statute (public law)
As a public-law statute is called in Germany legal norms that of one with statutes of autonomy appointed legal entity under public law shall be adopted for their area.
Public law statutes are based on public law statutes autonomy, while private autonomous statutes are based on private autonomy. The right of self-administration of legal persons under public law is also called autonomy , which is why one speaks conventionally in public law of autonomous statutes - even if in a broader sense the private statutes are also "autonomous statutes".
General
The conventional (public law) term of the statutes is referred to by the Federal Constitutional Court as follows:
“A statute is generally understood to mean legal provisions that are enacted by a legal person under public law assigned to the state within the framework of the autonomy conferred by law with effect for the persons belonging to and subject to it.
Statutes are objective law. What they have in common with statutory ordinances is that they do not come about in the process prescribed by the constitution for legislation, but they differ from statutory ordinances in that they are issued by a non-governmental body. "
The Federal Constitutional Court describes the function of self-government autonomy as follows:
“Granting constitutional autonomy makes sense in activating social forces, leaving the relevant social groups responsible for regulating matters that affect them themselves and which they can judge most knowledgeably in manageable areas, and thus the distance between normative and To reduce norm addressee. At the same time, the legislature is relieved of having to take into account factual and local differences, which are often difficult to identify for them and to which changes they cannot react quickly enough. The Federal Constitutional Court has never doubted that the idea of autonomy fits into the system of the constitutional order. "
Statutory authority
Self-governing bodies can set objective law for their area of responsibility through statutes . This right of self-government follows for the municipalities from Article 28, Paragraph 2 of the Basic Law, which stipulates that the municipalities must be guaranteed the right to regulate all matters of the local community on their own responsibility within the framework of the law.
According to the German municipal ordinances, the municipalities can regulate their own affairs through statutes ( statute power ; e.g. Section 10 (1) Lower Saxony Municipal Constitutional Law (NKomVG)). The municipal council issues, changes or repeals statutes (Section 58 (1) No. 5 NKomVG). For the municipality, essential questions are to be regulated in a main statute (Section 12 (1) NKomVG). In it are u. a. also to make regulations on how the promulgation of legal provisions is carried out (§ 11 Paragraph 1, Sentence 2 NKomVG). The statutes are then to be signed by the mayor and made public (Section 11, Paragraph 1, Sentence 1 of the NKomVG). After the announcement, the articles of association and their annexes must be accessible to everyone (Section 10 (4) NKomVG).
The issuing of statutes by organs of a self-governing body is an essential feature of autonomous law-making. This right of self-government follows for the municipalities from Article 28, Paragraph 2 of the Basic Law, which stipulates that the municipalities must be guaranteed the right to regulate all matters of the local community on their own responsibility within the framework of the law. "The term 'regulate' does not only guarantee the issuing of administrative acts, but a general arrangement through the articles of association."
content
Statutes, like other legal norms (such as laws ), must be adequately defined in terms of content ( Art. 20 (3) GG). According to this, the content and scope of a statute must be largely subsumable for the legal layperson . Finally, a statute must be proportionate, which can be achieved through specific exemption regulations. Then statutes are materially lawful. Statutes can constitute the constitution of the respective corporation and also contain detailed regulations for their specific area of responsibility. The essentials, however, are to be regulated by parliamentary law. Constitutional law includes in particular the establishment of the organs of a corporation, the description of the area of responsibility and the determination of its financial sovereignty. The organs have a representative, controlling or voting function. The area of responsibility assigned to the corporation by law is specified and implemented in the statutes. In particular, it regulates which tasks are available for which group of people and whether and to what extent fees or contributions in a certain amount are to be paid. In the financial regulation , the lineup is a budget controlled. The budget charter is also subject to the statutory regulations.
Institutions have no (compulsory) members and must therefore order a connection and use compulsory for the assigned group of tasks by statute under the requirements of § 13 NKomVG . The authorization to issue municipal statutes must clearly indicate which subject the statutes may affect. Compulsory connection or use may only be imposed by statutes. The municipalities may introduce this compulsory connection or use of facilities that serve public health (in particular street cleaning , garbage disposal , water supply , sewage disposal, energy supply ). While the compulsory connection is property-related and only obligates property owners and leaseholders, the compulsory use is personal and prohibits the use of similar facilities.
Finally, a distinction can be made between statutes with an external and a mere internal effect . While statutes with external effect are also binding for third parties (e.g. citizens), statutes with internal effect apply exclusively to the respective corporation, the organs and their administration. The latter group includes, for example, the main statute and the budget statute.
Legal effects
The content of the statutes acts like a legal norm for the citizens concerned. The parties concerned are entitled and obliged by the content. The intentional or negligent violation of a requirement or prohibition of a statute can constitute an administrative offense. Whether and when this is the case is determined by the municipal regulations of the respective country. In no case, however, does every violation automatically constitute an administrative offense. In the state of Hesse, the legislative municipality is responsible for declaring a corresponding culpable violation by referring to it in the statutes as an administrative offense (Section 5 (2) sentence 2 HGO). In contrast to this, in the state of Lower Saxony, for example, a culpable violation of a requirement or prohibition of the municipal statutes automatically constitutes an administrative offense without the need for a separate provision, provided that the statute only refers to the offense of fines (Section 10 (5) NKomVG ). It is a so-called blanket offense . The administrative authority punishing the regulatory offense within the meaning of Section 36 (1) No. 1 OWiG is the municipality. By levying fees and charges, statutes have a significant financial impact on the citizens burdened by this and must therefore comply with the principle of fair taxation. A statutory fee setting is objectionable if this exceeds the applicable (national) legal upper limits (prohibitions on cost coverage and inadequate profit making). Provided that the state constitutions provide, statutes can be checked by a norm review suit according to § 47 Abs. 1 Nr. 2 VwGO. A statute that violates higher-ranking law is null and void , so it does not have any legal effects from the start ( ex tunc ).
Public law legal persons with statutory autonomy
- The legal entities under public law that are endowed with statutory autonomy include
Statutory broadcasters and the Deutsche Bundesbank also have statutory autonomy .
See also
literature
- Fritz Ossenbühl: Articles of Association. In: Josef Isensee, Paul Kirchhof (ed.): Handbook of the constitutional law of the Federal Republic of Germany. III, 2005, ISBN 3-8114-3302-4 , § 66.
Web links
Individual evidence
- ^ Carl Creifelds (founder): Legal dictionary 22nd edition. Beck, Munich 2016, ISBN 978-3-406-69046-4 : Articles of Association
- ↑ Carmen Winkler: Statute (municipal law). In: Horst Tilich, Frank Arnold (Hrsg.): Deutsches Rechts-Lexikon. 3. Edition. Volume 3, 2001, p. 3676.
- ↑ BVerfGE 33, 125, 157; Materiality theory
- ↑ Model statutes for institutions under public law in NRW (PDF file; 74 kB)
- ↑ BVerwG, judgment of March 9, 1990, Az .: 8 C 20.88
- ↑ Friedrich-Ebert-Stiftung, Kommunalakademie, connection or compulsory use, July 2004, p. 1. (PDF file; 254 kB)
- ↑ Carmen Winkler: Statute (municipal law). In: Horst Tilich, Frank Arnold (Hrsg.): Deutsches Rechts-Lexikon. 3. Edition. Volume 3, 2001, p. 3676.
- ↑ Gerhard Bennemann / Uwe Daneke / Helmut Schmidt: PDK Hesse Hessian Gemeindeordnung (HGO) . 14th edition. Verlag CH Beck OHG, Munich 2017, § 5 Rn. 40 .
- ^ Bahr: BeckOK municipal law Lower Saxony . Ed .: Dietlein / Mehde. Verlag CHBECK, Munich 2019, § 10 Rn. 37 .
- ↑ BVerwG, judgment of April 17, 2002, BVerwGE 116, 188
- ↑ BVerwG, judgment of September 29, 2004, Az .: 10 C 3.04, p. 9.
- ↑ The statutes of institutions under public law are often called institution regulations
- ^ Gerhard Robbers: Statutes. In: Görres-Gesellschaft (Ed.): Staatslexikon. Law, economy, society. 7., completely reworked. Edition. Volume 4, 1988, Col. 1001-1002 [1001]. In the case of the Bundesbank, however, Section 7 (1), sentence 2 of the Bundesbank Act speaks of the “organizational statute”. In § 2 sentence 1 of the Bundesbank Act it is determined that it is a "federal legal entity under public law".
