Self-management

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Chain of legitimation of the direct and indirect state administration as well as self-administration at federal, state and local level

In state organization law, self-administration refers to an authority that is not bound by instructions and is only subject to legal supervision , but not to any specialist or service supervision . Authorities with self-administration are legally independent legal persons under public law and belong to the indirect state administration . Conversely, not every legally independent authority or authority of indirect state administration is endowed with the right to self-administration. There is no self-government in the immediate state administration.

The self-governing authorities can be divided into four groups:

  1. social self-administration ( social insurance agency )
  2. Regional authorities (e.g. municipalities , (rural) districts ),
  3. professional and civil self-government ( professional bodies or chambers, hunting associations, fire brigade associations, etc.)
  4. cultural self-government ( universities , public broadcasters )

Self-government in state building

Through self-government, the citizens are directly involved in the fulfillment of state tasks. Self-administration is therefore a fundamentally important component of a living democracy and enables those affected to participate in shaping it on their own responsibility ( principle of subsidiarity ). A typical organizational form of self-administration is the corporation under public law ; the norms it sets are usually issued as autonomous statutes . It can usually collect contributions from its members .

The self-governing bodies are not private associations, but part of the federal or state administration . They are part of the public authority within the meaning of Article 1, Paragraph 3 and Article 20, Paragraph 3 of the Basic Law , even if they are separated from their hierarchical administrative structure, and are not entitled to fundamental rights , but are bound by fundamental rights.

In the context of organ lending , self- government authorities can also be subject to specialist supervision .

Occasionally, according to the Anglo-Saxon model, it is argued that if their jurisdiction is exceeded, the self-administration authorities already lack legal capacity because this is limited to the fulfillment of the specific task ( ultra vires ). In contrast, a comprehensive legal capacity is predominantly assumed; such measures are therefore possible, but unlawful.

As part of public authority, the self-governing bodies must also be democratically legitimized. This constitutional requirement, for example, can conflict with employee participation . The Federal Constitutional Court decided that the democratic requirement of Article 20, Paragraph 2 of the Basic Law is open to forms of organization and exercise of state power that deviate from the requirement of complete personal democratic legitimation of all decision-makers. Self-government promotes democracy in particular by enabling those affected to participate. From a constitutional point of view, however, binding action with the character of a decision is only permitted to the organs of those responsible for functional self-administration, because and to the extent that the people also uphold their right to self-determination in this respect.

Protective functions

Protection of self-government

The fact that the bearers of self-government as part of public authority are fundamentally not bearers of fundamental rights does not mean that their position vis-à-vis the federal and state governments must be unprotected. The legal system can give them a defensive right against encroachments into their own administrative affairs grant (see. Self-government guarantee in accordance with Art. 28 GG). To protect their self-government can colleges and organized under public law broadcasters , although actually part of exception of the state administration on the fundamental right of academic freedom and the freedom of broadcasting appointed. But that does not make them fully entitled to fundamental rights, so they are only bearers of these special, but not of the other fundamental rights.

Protection of members

Self-governing bodies are not based on the autonomous association of their members, but are established by law. There is therefore a compulsory membership ( Chamber of Industry and Commerce , constituted student body ). According to the prevailing opinion, this does not violate the constitutionally protected negative freedom of association , which is only intended to protect the withdrawal from associations organized under private law. The compulsory membership interferes with the general freedom of action of Art. 2 Abs. 1 GG.

This interference is usually proportionate and therefore permissible. It enables administrative tasks that arise anyway to be co-determined by those who are directly affected. The interference can become disproportionate and therefore unconstitutional if the corporation acts unlawfully outside of its jurisdiction. In this case, an injunction can be requested in court; If necessary, a constitutional complaint is open to the Federal Constitutional Court .

These cases were discussed in particular in connection with demands for a general political mandate for self-governing bodies. For example, local councils proclaimed their area to be a “nuclear-weapon-free zone” or committees made up of student bodies dealt with questions of foreign and defense policy. However, a comprehensive general political mandate is incompatible with the idea of self- administration of one's own affairs, and such activities violate the fundamental rights of the members.

Self-government

social insurance

Around 90% of German citizens benefit from social insurance in the form of health, long-term care, pension or accident insurance. Here, too, there is self-administration as a democratic element. It creates a balance between purely political interests and the interests of the insured and, as a rule, the employers, who are represented by the self-administration. The self-governing bodies in the German social insurance are determined in social elections . According to the law, there are two variants here: an election with and one without voting, the so-called peace election . Most social security agencies hold peace elections. In doing so, no more candidates are placed on the proposal lists than members are to be elected. Electoral elections, so-called primary elections , are held at the German Pension Insurance Association, various company health insurance funds and most replacement funds . These social elections take place every 6 years. The last social security elections were in 2017, the next will take place in 2023.

In many local governments, employers are also represented equally. The elected self-administrators make important financial, personnel, organizational and strategic decisions. They represent the interests of the contributors, patients, those in need of care and pensioners and exert political influence on the further development of social security systems. They also do this on a voluntary basis.

Municipalities

A particularly important guarantee of self-government concerns local self-government . It is given federal constitutional status in Article 28, Paragraph 2 of the Basic Law and is additionally supported in the state constitutions . According to this, municipalities and municipal associations are not only institutionally guaranteed (legal subject guarantee: there must be municipalities at all), but they also receive a right of defense that protects them from encroachments by other public authorities in their self-administration matters (subjective legal status guarantee).

Violations of this right can be brought before the respective courts. In addition, legal recourse to the Federal Constitutional Court is open. A special procedure based on the constitutional complaint , the municipal constitutional complaint ( Art. 93 (1) No. 4b of the Basic Law), serves for this purpose . The local constitutional complaint is necessary because the local self-government guarantee is not a fundamental right. Basic rights are namely rights of the citizen to defend himself against the state ( Article 1, Paragraph 3 of the Basic Law). Despite their legal independence from the hierarchical (“state”) authorities, the municipalities are part of the public authority, that is to say of the state in the broadest sense. Therefore, they are not entitled to fundamental rights, but are obliged to do so.

The self-administration guarantee includes in particular financial and local tax sovereignty , personnel sovereignty , organizational sovereignty , planning sovereignty and statutory sovereignty . The self-government guarantee can be restricted and structured by formal (parliamentary) law , which has happened, for example, through the municipal regulations of the federal states.

Colleges

Individual tasks are assigned to different bodies . Each status group (e.g. professors, research assistants, other employees, students) determines electoral representatives for the respective committees. As a rule, the professors have the majority, but there are also models with so-called quarter parity , in which each group sends fractions of the same size .

The committees issue statutes that determine the rules of their working methods. Commissions and working groups are also set up to address specific issues. Resolutions are passed and an elected member is commissioned to implement them.

University bodies

University commissions

The tasks are distributed differently depending on the university and federal state .

Demarcation

The right of religious communities to regulate their own affairs without state interference is referred to in Germany as self-determination , since even religious communities organized under public law are not part of the state and therefore not “administration” because of the separation of state and church .

The fundamental right of freedom of association has a similar consequence for citizens and associations and societies founded by them as the guarantee of self-government for institutions of state self-government. Unlike these, however, they are not part of the state, but part of society and are therefore not limited to this right, but are comprehensively entitled to fundamental rights . In particular, they are also protected by Art. 14 GG ( property ) and Art. 12 GG ( freedom of occupation ).

In the alternative movement of the 1980s, numerous small businesses in self-administration emerged in West Germany and West Berlin . The Berlin company Oktoberdruck has been organized in this way to this day .

Historical forms

literature

  • Werner Thieme : Introduction to Administration. Cologne, Berlin, Bonn, Munich 1995, § 10.
  • Werner Thieme: Administrative apprenticeship. 3. Edition. Cologne, Berlin, Bonn, Munich 1977, Chapter 14.
  • Volker Mayer, Local Self-Government in the East German States , Diss., Univ. Bayreuth 2001, ISBN 3-931319-87-3 .
  • Austrian Administrative Society: Self-administration in Austria, basics - problems - future perspectives. Autumn event of the Austrian Society for Administrative Sciences September 18-19, 2008, Linz 2009.
  • Hermann Hill: Rethinking self-administration (PDF; 188 kB), in: Journal for Public Law in Northern Germany (NordÖR) 2011, 469.
  • Peter Unruh: Religious Constitutional Law . 2nd Edition. Nomos, Baden-Baden 2012, ISBN 978-3-8329-7349-0 , § 6 The right of self-determination of religious communities.

Web links

Individual evidence

  1. ↑ BVerfGE 107, 59
  2. ↑ Cf. Wolfgang Ayaß : Hundred Years and Even More ... On the History of Social Elections , in: Social Security 62 (2013), pp. 422–426.
  3. ^ Peter Unruh: Religious Constitutional Law . 2nd Edition. Nomos, Baden-Baden 2012, ISBN 978-3-8329-7349-0 , p. 99 ff .