Circulation procedure
From lieu of (or written resolution , written procedure ) is when decisions without meeting a collective body by counter-signature of the members shall be taken by correspondence.
General
This form of voting is particularly useful when there is no need for discussion but a formal resolution is necessary. In this way, urgent matters can be settled without the need for a meeting of the members of a committee as part of a vote. Even with a heavy workload and the need for decisions that cannot be postponed, a circular procedure can be justified. Michael Anderheiden defined the circulation procedure as a procedure "in which a resolution is reached in absentia by circulating a decision-ready application provided that formal conditions are met".
The circulation procedure is provided in various areas of law .
politics
The so-called silence procedure ( French procédure d'approbation tacite , Latin qui tacet consentit ) is a type of formal handling of texts, mostly in international politics . First, a draft of the target document is distributed among the addressees. They then have the opportunity to introduce changes or additions. If this is not the case (no "break of silence") before the respective deadline expires, the text will be treated as if all participants had agreed. Typically, this procedure is used as the final step in the creation. In other words, the essential requirements and ideas have already been discussed. Therefore “breaking the silence” should be seen as an exception rather than a rule.
Constitutional law
For example, the Federal Government's rules of procedure provide :
- If verbal discussion of a matter is not required, the State Secretary of the Federal Chancellery should obtain the consent of the members of the Federal Government in writing (circulating matter). (Section 20 (2) of the Federal Government's Rules of Procedure)
Condominium law
In condominium law , votes are usually made in the condominium assembly. However, a written circulation procedure is also legally possible in accordance with Section 23 (3) WEG , according to which unanimity is always required. The circulation procedure is a special form of universal voices. The requirement that a circular resolution must be unanimous only relates to the form in which this resolution was reached, but not to the matter regulated by it.
restrictions
Often it is provided that a circulating item needs the approval of all members. If a member objects, it will be negotiated orally. In some cases, the circulation procedure is also carried out via e-mail , mailing lists or Internet forums .
It should also be noted that there are some legal restrictions on the admissibility of circular procedures, e.g. B. in labor law for works councils and staff representatives , for example for the staff council in Bavaria limited to "simple matters" and only in the "written circulation procedure" according to Art. 37 para. 3 BayPVG, if no member of the staff council objects to this procedure; Circular procedures by telephone, however, are always inadmissible according to case law. In Rhineland-Palatinate, the “written procedure” is only permitted for level representation of the staff council in matters of co-determination if, in individual cases, more than two thirds of the members agree to a vote in a written procedure in accordance with Section 55 (4) LPersVG RLP. In Saarland, the "written procedure" is only permitted for level representatives of the staff council if no member objects to a vote in a written procedure in accordance with Section 53 (2) SPersVG.
By contrast, resolutions of the works council in circulation procedures are generally inadmissible due to the lack of a legal basis .
Individual evidence
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 473
- ↑ Michael Anderheiden, procedural and attribution problems in circulation procedures , in: VerwArch vol. 97, 2006, p. 165
- ↑ Bernd Lemke, Die Allied Mobile Force 1961 to 2002 , 2015, p. 16 f.
- ↑ Art. 37 para. 3 BayPVG
- ^ LAG Munich, decision of November 14, 2008, Az .: 5 TaBV 36/08
- ↑ Working group of the representatives of the severely disabled of the highest state authorities of the Free State of Bavaria: Cooperation with the employee representatives , section Written circulation procedure in the staff council .
- ↑ § 55 Abs. 4 LPersVG RLP
- ↑ Section 53 (2) SPersVG
- ↑ LAG Cologne, decision of November 25, 1998, 2 TaBV 38/98 ( Memento of February 10, 2013 in the web archive archive.today )
