Administrative skills

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The term administrative competence (also administrative competence ) describes in German public law the competence of the executive to execute laws . Laws are implemented by applying them to individual cases. This is the responsibility of both the federal government and the federal states . Which authorities are responsible for the enforcement of laws is regulated by the Basic Law in Art. 30 and Art. 83 - Art. 91 GG.

Legal studies refer to the enforcement of laws as administrative ancillary to the law. A distinction must be made between the law-free administration, in which the administration acts with its own scope for design. Such is the case with local self-government .

The legislative competence of the legislature must be distinguished from the administrative competence .

Competencies in the enforcement of state and federal laws

Due to the division of Germany into federal states, both the federal government and the states can enact laws that are enforced by the administration. As is the case with legislative competences, administrative competencies are also divided between the federal and state governments.

Enforcement of state laws

According to Art. 30 GG, the enforcement of state laws falls within the jurisdiction of the states that exercise their law in their own matter. This is why they decide how to exercise their rights, and in particular determine the administrative procedure . The Länder have organizational sovereignty in this area, by virtue of which they decide which authorities to set up and which tasks to assign to them. In principle, the federal government is not involved in the enforcement of state laws.

Enforcement of federal laws

When executing federal laws, a distinction must be made between state administration, federal contract administration and federal administration. The principle of the execution of federal laws is set out in Article 83 of the Basic Law. According to this, federal laws are enforced by the states. This is the legal and practical rule.

State administration, Art. 84 GG

If the states enforce federal laws on their own responsibility, it is a matter of state administration. In the case of the state's own administration, the states determine the administrative procedure in accordance with Article 84, Paragraph 1, Sentence 1 of the Basic Law. Here, too, the states have organizational sovereignty. According to Article 84, Paragraph 3, Clause 1 of the Basic Law, however, the federal government is responsible for the legal supervision of the administrative activities of the states. As part of this, he checks whether the states are lawfully implementing the federal laws.

Implementation requirements

In the law to be enforced, the federal government may set requirements for law enforcement. However, according to Article 84, Paragraph 1, Sentence 2 of the Basic Law, the Länder may in principle deviate from these by law. According to Art. 84, Paragraph 1, Clause 5 of the Basic Law, the Confederation may only exclude the possibility of derogation if there is a special need for uniform national regulation. This applies, for example, if the purpose of the law cannot be achieved without uniform nationwide application. Article 84, paragraph 1, sentence 6 of the Basic Law provides that a law that excludes the states' right to deviate requires the consent of the Bundesrat . It is controversial in jurisprudence whether this requirement of consent is limited to exclusion or whether it covers the entire law in which the exclusion is contained. The Federal Constitutional Court affirmed this for the predecessor regulation of Article 84 paragraph 1 sentence 6 of the Basic Law.

Access to the municipal level

Pursuant to Article 84, Paragraph 1, Clause 7 of the Basic Law, direct intervention by the Federation on the municipalities and the municipal associations is excluded . This is to protect these bodies from being overloaded with task assignment. By delegating administrative tasks to the municipal administrators, the federal government aimed to have them bear the administrative costs. The federalism reform of 2006 eliminated this possibility by introducing Art. 84, Paragraph 1, Clause 7 of the Basic Law. According to this, the transfer of new tasks or the expansion of tasks that have already been assigned is not permitted.

Administrative regulations and individual instructions

Art. 84, Paragraph 2, Basic Law grants the Federal Government the possibility of controlling the administrative procedure in the Länder by issuing general administrative regulations . These are internal authority requirements that are intended to ensure uniform administrative practice. Administrative regulations can only be issued by the federal government as a college, and therefore not by a single member of the government. It requires the approval of the Federal Council. If a Land deviates from a federal law in accordance with Article 72, Paragraph 3 of the Basic Law, the Federation loses the possibility of enacting state action in relation to the federal law through administrative regulations.

According to Art. 84, Paragraph 5, Clause 1 of the Basic Law, the Federal Government can order by law that it may issue instructions to the Länder in individual cases with regard to law enforcement. In jurisprudence, this is referred to as federal law of limitation. This enables him to oblige the state government to behave in a certain way. The possibility of issuing instructions is provided, for example, in Section 74 (2) of the Residence Act and Section 28 (3) of the Land Procurement Act . In order to be able to make effective use of the right to issue instructions, the federal government has a claim against the states for comprehensive information on the subject area concerned. For example, the federal government may request statements from the states. A right to issue instructions only comes into question in cases that deviate significantly from the typical law enforcement. The addressee of the instructions is in principle the highest state authority responsible for the department concerned. The instruction can come from the federal government or an individual minister.

costs

According to Art. 104a Paragraph 1 of the Basic Law, the states generally bear the costs of the state's own administration.

Federal contract administration, Art. 85 GG

For matters expressly named in the Basic Law, the states implement federal laws on behalf of the federal government. In jurisprudence, this is referred to as federal contract administration. The federal contract administration is mandatory for some areas. This applies, for example, to the administration of federal highways in accordance with Art. 90 Paragraph 3 GG . In other areas, the federal government has the option of ordering federal contract administration. In accordance with Art. 87c of the Basic Law in conjunction with Section 24 of the Atomic Energy Act, he has made use of this for the administration of nuclear law matters .

Perceptual competence of the countries

According to Art. 85, Paragraph 1, Sentence 1 of the Basic Law, the federal states generally determine the administrative procedure for federal contract administration, since contract administration is a special form of state administration. The enforcement of federal law against third parties is also carried out exclusively by the states. So they have the perceptual competence. The federal government is therefore prohibited from acting in a legally relevant manner vis-à-vis third parties with regard to the law to be enforced. The federal government may, however, make provisions regarding the administrative procedure in the law to be implemented, from which the states, unlike in the case of state self-administration, may not deviate.

Even within the framework of federal contract administration, the federal government is prohibited from direct access to municipalities and associations of municipalities in accordance with Article 85 (1) sentence 2 of the Basic Law.

Federal expertise

In addition to legal supervision, the federal government carries out technical supervision in accordance with Article 85, Paragraph 4, Clause 1 of the Basic Law . Therefore, its control is not limited to the legality of the country's action, but also extends to its expediency. The federal government therefore has the competence, i.e. the right, to decide on the matter.

According to Article 85, Paragraph 2, Sentence 1 of the Basic Law, the Federal Government can issue administrative regulations. In addition, it can draw up regulations for the training of civil servants and employees. The heads of the intermediate authorities , which are state officials, are also filled with their consent.

Furthermore, according to Art. 85, Paragraph 3, Clause 1 of the Basic Law, the highest federal authorities may issue instructions to the state authorities regarding the implementation of federal law. In contrast to the state's own administration, there is no need for a legal basis. The right to issue instructions is also not limited to individual cases. The addressee of the instructions is, in principle, the relevant supreme state authority. However, if this is necessary, the federal government may also instruct subordinate state authorities in accordance with Article 85, Paragraph 3, Sentence 2 of the Basic Law. The assigned authority is obliged to follow an instruction insofar as it is constitutional. The constitutionality of an instruction presupposes that it is responsible for the subject area concerned. Furthermore, the federal government must respect the unwritten principle of federal-friendly behavior. This is done by hearing the authority to be instructed beforehand, formulating his instructions sufficiently clearly and presenting them as the ultima ratio. The content of the instructions must also not constitute an obvious violation of the constitution. Ultimately, the instruction must lie within the area of ​​responsibility of the federal government. The constitutionality of an instruction can be checked by the Federal Constitutional Court in the context of a federal-state dispute .

costs

According to Art. 104a Paragraph 2 of the Basic Law, the federal government bears the costs that arise from commissioning the federal states with implementation. This only means the expenses that arise directly from the purpose of the law. In jurisprudence, these are therefore referred to as special expenditure. In contrast, the costs incurred through the operation of administrative units are borne by the states in accordance with Article 104a, Paragraph 5, Sentence 1 of the Basic Law.

Federal administration, Art. 86-90 GG

After all, the federal government can implement its own laws. This is known as federal administration or federal administration. This, too, is only possible in matters that the Basic Law expressly states. A federal administration is required, for example in accordance with Art. 87 Paragraph 1 GG in the area of ​​the external service and the federal finance administration . The Federal Armed Forces Administration ( Art. 87b, Paragraph 1, Sentence 1, Basic Law), the Federal Railway Administration ( Art. 87e, Paragraph 1, Clause 1, Basic Law), and the Deutsche Bundesbank ( Art. 88, Basic Law) , for example, continue to be administered by the federal government . In addition, pursuant to Article 87 (3) sentence 1 of the Basic Law, the Federation may establish independent higher federal authorities as well as corporations and institutions under public law for matters for which it is entitled to legislation . The Federal Motor Transport Authority and the Federal Cartel Office , for example, were established on this legal basis . Unwritten competences of the federal government, as they are recognized in the field of legislation, are generally considered in jurisprudence in the field of administration as well. However, they are only permitted in exceptional cases in order to avoid a contradiction to Art. 83 GG.

According to Art. 86 sentence 1 GG , the federal government can conduct federal self-administration in two ways: through direct and indirect federal administration. Direct federal administration occurs when the federal government has its laws implemented by federal authorities with or without their own administrative framework. Indirect federal administration exists if the law enforcement is carried out by legally independent legal entities under public law who are established by the federal government and are subject to its instructions. Corporations , institutions and foundations under public law come into question as legal entities under public law .

The establishment of federal administrative units is the responsibility of the federal government in accordance with Art. 86 sentence 2 GG. According to Art. 86 sentence 1 GG, it may also issue general administrative regulations. Whether the individual minister may also issue administrative regulations is a matter of dispute in jurisprudence.

Mixed management

Since the Basic Law assigns administrative competences to either the Federation or the Land, a mixed administration of the Federation and the Länder is, according to the prevailing view in jurisprudence, inadmissible, unless provided for in the Basic Law. This ban is intended to ensure that individual tasks are clearly assigned to an administrator.

Mixed administration is permitted in certain areas of responsibility. According to Art. 91b, Paragraph 1, Clause 1 of the Basic Law, the Federation and the Länder may, for example, cooperate in promoting science, research and teaching in cases of supra-regional importance.

illustration

  • Execution of state laws: basically a matter for the states ( Art. 30 GG)
  • Execution of federal laws:
    • grds. by states as their own matter ( Art. 83 , Art. 84 GG)
    • by states on behalf of the federal government (federal contract administration) ( Art. 85 GG)
    • by the federal government (federal administration) ( Art. 86 , Art. 87 GG)
      • by federal agencies
        • with its own administrative structure (e.g. Art. 87 Para. 1 GG (mandatory), Art. 87 Para. 3 S. GG (optional, for new tasks and urgent needs))
        • without its own administrative framework ( Art. 87 (3), sentence 1 GG (optional, task must be centrally perceptible without an administrative framework))
      • by federal corporations and institutions under public law ( Art. 87 (2) and (3), sentence 1 of the Basic Law)
    • Joint or mixed administration of federal and state governments ("third level")

literature

  • Hebeler: The Execution of Federal Laws. JURA 2002, p. 164 ff.
  • Alexander Petschulat: The regulatory competencies of the states for spatial planning after the federalism reform - problems of deviating legislation. Lexxion, Berlin 2014, ISBN 978-3-86965-268-9 .

Web links

Individual evidence

  1. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1347.
  2. ^ Andreas Vosskuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The execution of federal laws - administrative skills. In: Legal Training. 2017, p. 316.
  3. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1350.
  4. ↑ Hans-Günter Henneke: Art. 84. Rn. 68. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  5. ↑ Hans-Günter Henneke: Art. 84. Rn. 11. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  6. ↑ a b c Andreas Vosskuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The execution of federal laws - administrative skills. In: Legal Training. 2017, p. 316 (317).
  7. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1354.
  8. ↑ Hans-Günter Henneke: Art. 84. Rn. 36-54. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  9. ↑ Armin Dittmann: Art. 84. Rn. 29. In: Michael Sachs: Constitutional Law II - Fundamental Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 .
  10. ↑ a b c BVerfGE 104, 249 : Biblis A.
  11. ↑ Hans-Günter Henneke: Art. 84. Rn. 58. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  12. ↑ Hans-Günter Henneke: Art. 84. Rn. 61. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  13. ↑ Bodo Pieroth: Art. 84. Rn. 16. In: Hans Jarass, Bodo Pieroth: Basic Law for the Federal Republic of Germany: Commentary . 28th edition. CH Beck, Munich 2014, ISBN 978-3-406-66119-8 .
  14. ↑ Armin Dittmann: Art. 84. Rn. 33. In: Michael Sachs: Constitutional Law II - Fundamental Rights . 3. Edition. Springer, Berlin 2017, ISBN 978-3-662-50363-8 .
  15. ↑ Eike Frenzel: Basic cases to Art. 83 ff. GG. In: Legal Training. 2012, p. 1082 (1084).
  16. ↑ Hans-Günter Henneke: Art. 84. Rn. 63. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  17. ↑ Hans-Günter Henneke: Art. 84. Rn. 64. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  18. ↑ Hans-Günter Henneke: Art. 84. Rn. 67. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  19. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1360.
  20. ↑ Hans-Günter Henneke: Art. 85, Rn. 3. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  21. ↑ BVerfGE 81, 310 (331) : Kalkar II.
  22. ↑ BVerfGE 100, 249 : General administrative regulations.
  23. ↑ Hans-Günter Henneke: Art. 85, Rn. 10. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  24. ↑ Hans-Günter Henneke: Art. 85, Rn. 13. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  25. ↑ BVerfGE 81, 310 (336) : Kalkar II.
  26. ↑ Eike Frenzel: Basic cases to Art. 83 ff. GG. In: Legal Training. 2012, p. 1082 (1085).
  27. ↑ BVerfGE 81, 310 : Kalkar II.
  28. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 741-742.
  29. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1379.
  30. ^ Andreas Vosskuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The execution of federal laws - administrative skills. In: Legal Training. 2017, p. 316 (318).
  31. ↑ BVerfGE 22, 180 (198) : Youth Welfare.
  32. ↑ Dirk Ehlers: Unwritten skills. In: Jura 2000, p. 323.
  33. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1380.
  34. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1374-1375.
  35. ↑ Hans-Günter Henneke: Art. 86, Rn. 11. In: Bruno Schmidt-Bleibtreu, Hans Hofmann, Hans-Günter Henneke (eds.): Commentary on the Basic Law: GG . 13th edition. Carl Heymanns, Cologne 2014, ISBN 978-3-452-28045-9 .
  36. ↑ BVerfGE 63, 1 (37) : Chimney sweep.
  37. ↑ BVerfGE 1119, 331 (365) : ARGE.
  38. ^ Christoph Gröpl: Staatsrecht I: State foundations, state organization, constitutional process . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71257-9 , Rn. 1345.