State supervision

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In Germany, state supervision is understood to mean the competence and authority of state bodies (supervisory authority, supervisory subjects) to observe and influence other non-direct state bodies (supervised, supervisory objects). Supervisory law is the power of supervisors to carry out supervisory acts through regulations of a general nature (e.g. administrative regulations ) and individual measures (e.g. administrative acts, instructions and other direct actions). Legal persons under public law and legal and natural persons under private law who perform public administrative tasks ( indirect state administration ) are under state supervision .

There can be no state supervision of the organs of direct state administration, because the supervisory and authorizing authority of the respective superior authority to the subordinate authority is sufficient for this. There is no state oversight of the surveillance administration , e.g. B. the observation of civilians by the police or legally authorized secret services (formerly: subject supervision, police surveillance) or organizations (e.g. economic supervision), as long as the police and secret services are authorities in the direct state administrative hierarchy .

All administrative bodies (whether legal entities organized under public law or organized under private law ) are under state supervision, provided they perform public tasks ( indirect state administration ) and are not independent due to special legal provisions (e.g. for certain examinations). Supervision can consist of legal supervision (e.g. legality of administration) or also technical supervision (so-called technical supervision ); that depends on the respective legal provision. The view is often taken that supervision should be cautious (no more than necessary), but also emphatic (if necessary means of coercion ) (sensitive e.g. if large parts of the public need special protection - nuclear supervision ). Often, however, these rules are only based on general supervisory law if there are no specific regulations.

Objects and subjects under supervision

1. The supervision of certain state bodies (supervisory authorities) over other authorities. Often, not quite appropriately, called service supervision (hence the service supervision complaint : an appeal to the supervisory authority to influence the authority it supervises).

a. A particularly popular oversight is that of indirect state administration, in particular of self-governing bodies, e.g. B. the municipal supervision , whose responsibilities, powers and rights are mostly regulated in the municipal constitutional regulations ( municipal ordinances ). The supervision of state organs (e.g. district councils , regional councils , interior ministers) over municipalities , cities, districts and higher municipal associations (e.g. landscape associations , state welfare association , etc.) is a state supervision .
b. In addition, the self-governing bodies professional bodies associations (eg. Chambers ): (for professions Apothekerkammern , architects chambers , medical associations , Federal pilot chamber , Bundesnotarkammer , Bundesrechtsanwaltskammer , engineering chambers (for consulting engineers), notary chambers , Patent Attorneys , care chambers , psychotherapist chambers , chambers of lawyers , tax advisors chambers , veterinarians chambers , auditors chambers , dental associations ), commercial ( chambers of trade , chambers of Commerce ), agriculture ( agricultural chambers ), workers ( employees Bremen chamber , chamber of Saarland ), etc. and the social insurance: pension, health insurance, accident insurance.

2. The supervision of private, where responsibilities and state powers conferred were ( Entrusted , formerly: beliehene entrepreneurs): chimney sweep , collecting societies (eg. Word VG , VG Bild-Kunst ).

Supervisory means

The means of supervision are generally to inform oneself, to check and inspect one another on site and to request reports. A further differentiation is made in detail:

1. Non-intrusive means

a. observation through information from public sources (press) and the population ( complaints and petitions ),
b. the information by requesting reports (information obligation on the supervisory objects)
c. the investigation by inspection of files (visitation right and, if necessary, duty) or inspection and questioning of the official on the spot.

2. Regulatory supervisory means

the enactment of abstract-general (possibly statutory ordinances ) or concrete-individual administrative regulations ( instructions , possibly administrative acts ).

3. Intervening supervisory means

a. the objection to legally incorrect decisions, usually by means of a formal order (objection order),
b. the repeal of the measure by means of a revocation order (e.g. Section 138 HGO ),
c. in the case of collegial bodies, the dissolution decree , e.g. B. in the event of a permanent lack of a quorum or the arrangement of a new election.

4. Performing supervisory means

a. the substitute performance by a third party at the expense of the supervised institution,
b. the provisional administration of organs by a state commissioner (state commissioner).

Legal protection

Legal protection against supervisory means varies according to the type and scope of supervision. Within the state authorities (administrative hierarchy) there is almost no legal protection, as the supervised authority does not have its own legal interests (the authority regularly has no rights of its own). Legal protection through ( contestation ) is in principle possible against supervisory means that are directed against authorities whose administrators have their own legal personality (e.g. institutions, corporations or foundations under public law) and which impair their rights .

literature

Wolfgang Kahl: The state supervision: emergence, change and redefinition with special consideration of the supervision of the communities , Jus Publicum; 59 (Mohr Siebeck), Tübingen 2000, ISBN 3-16-147463-5

Web links

Individual evidence

  1. ↑ Section 2, Paragraph 3, No. 2 of the Administrative Procedure Act (of the federal government) and most of the administrative procedure laws of the federal states
  2. ↑ Formulated particularly clearly in Article 18, Paragraph 1 of the Austrian Federal Constitution 1920: The entire state administration may only be exercised on the basis of the law.
  3. ↑ Section 1 (4) of the Administrative Procedure Acts : ... any body that performs public administration tasks.