Project Report, 2007
A. Attribution of competences to different levels of administrative authority in the sphere of local self-government and order management
1. Public Corporations
2. Communal Tasks
a) Genuine Universal Competence of Local Government Corporations
b) Traditional Catalogue of Communal Tasks
c) Structure of Communal Activities
3. Differentiation of Natural Subjects
c) Foreigners with special Status
4. Communal Organs
a) Communal Organs of the Corporation of Local Administration
aa) Communal Council
b) Organs of other Tiers of Local Administration
5. Communal Committees
6. Advisory Boards and Commissions
7. Communal Parliamentary Coalitions
8. Territorial and Organisational sub-divisions
9. Conflicts between Communal Organs
10. Legislative Sovereignty
11. Communal Budget Administration
a) General Principle
b) Principle of Connection
c) Financing of Communal Corporations
d) Control of Communal Budget Calculation
12. Communal Enterprises and Institutions
13. Control of Communal Activities
II. The Netherlands
1. The Role of the Provinces
2. The Functioning of Municipalities
3. Water Boards
III. United Kingdom
1. General Introduction
a) Parishes and communities
d) Ceremonial functions
aa) England and Wales
bb) Scotland and Northern Ireland
a) Councils and Councillors
c) Functions and Powers
e) Corporation of London
g) Future developments in England
5. Northern Ireland
B. Variants of authority determination in the sphere of financing
I. Main stages
II. Core factors and conclusion
Gern, Deutsches Kommunalrecht (2003) ISBN 3-8329-0127-2
Hofmann/Muth/Theisen, Kommunalrecht in NRW, 12th edition (2004) ISBN 3-933870-47-X
Zahradnik and others, Kommunalverfassungsrecht Hessen (2006) ISBN 3-8293-0222-3
Recommendation of the Committee of Ministers of the Council of Europe to member states on local public services and the rights of their users, Rec. (1997) 7.
Recommendation of the Committee of Ministers of the Council of Europe to member states on local taxation, financial equalisation ad grants to local authorities, Rec. (2000) 14.
Sandfuchs, Allgemeines Niedersächsisches Kommunalrecht, 18th edition (2005) ISBN 3-929882-18-3
Seewald in Steiner and others, Besonderes Verwaltungsrecht, 8th edition (2006) ISBN 3-8114-8038-3
Abbreviations and acronyms:
BGBl. Federal Law Gazette of Germany (B undes g esetz bl att)
GG German Constitution (G rund g esetz)
GO BY Municipal Regulation of the Federal State of Bavaria (” G emeinde o rdnung B a y ern”)
GO Nds Municipal Regulation of the Federal State of Lower Saxony (” G emeinde o rdnung N ie d er s achsen”)
GVBl. Federal State Law and Bye-Law Gazette
(G esetz- und V erordnungs bl att)
VG Administrative Tribunal (” V erwaltungs g ericht”)
The German system of local government is composed of several territorial public corporations. Basis of local government is the right to communal self-government, which is entrenched in the Constitution of the Federation (Bund) in Article 28 (2) 1 GG, as well as in the constitutions of the federal states (Länder), e.g. in Article 11 of the Constitution of Bavaria.
Organisation and structure of the basic level of local government is regulated by the federal states in Municipal Regulations (Gemeindeordnungen) with the exclusion of the three pure city states of Berlin, Hamburg and Bremen.
No single Code of communal law exists in the federal states, but a variety of laws covers the different levels of local government. Besides the already mentioned Municipal Regulations, there are District Regulations (Landkreisordnung), depending on the size of the States also on a higher tier Regional Regulations (Bezirksordnung) ; in addition laws about local elections on the different levels (Kommunalwahlgesetz) and the different forms of inter-corporation co-operation (Gesetz über die kommunale Gemeinschaftsarbeit, Zweckvebandsgesetz, Gemeindekassenverordnung (e.g. in Lower Saxony), Gesetz über die kommunale Zusammenarbeit and Verwaltungsgemeinschaftsordnung, Kommunalabgabengesetz (e.g. in Bavaria).
Communal structures in Germany have the legal form of public territory-based corporation. Their members are all natural and legal persons residing on the respective territory and they derive their status from law.
The territorial corporations are – depending on the State – usually structured as already mentioned above from communities (villages, towns with special status (e.g. Big District Cities (Große Kreisstädte) in Bavaria and District-free Cities (Kreisfreie Städte) on the lowest level; then districts (Landkreise) and only in the larger States Regions (Bezirke). In some States, there a special forms of small communities (e.g. Samtegemeinden in Lower Saxony); Models of co-operation, e.g. Verwaltungsgemeinschaften in Bavaria and Lower Saxony) or regions (e.g. the Region Hanover being the result of the fusion of the District of Hanover with the District-free City of Hanover.
Within the frame of local self-government, the communal corporations have the competence to administer all tasks affording the local community. This presumption of general competence derives from Article 28 (2) of the German Constitution and can be described in greater detail by a traditional catalogue of communal competences. These are the territorial, organisational, personal management, financial, planning and legislative sovereignty for the local tasks of the own area of competence.
Local government corporations are not limited to activities prescribed by law, but have a genuine competence for activities (eigener Wirkungskreis) within their own sphere of competence, provided that they are equipped with sufficient administrative and financial means to fulfil a certain task that has to be limited to their respective territory (e.g. in Bavaria regulated in Articles 7, 57 of the GO BY). Thus a limited right to generate own areas of activity and competence exists, provided that it does not conflict with other law, especially the national and federal division of competences.
A local government corporation is not allowed to interfere with or to act independently in the sphere of national or federal state competences. The fact that a certain task has a direct effect on a certain local body does not suffice to allow communal activity in these fields, e.g. the payment of family support means, the declaration of a Nuclear Weapon Free Zone or the ban of cigarette advertising are not possible.
The following tasks are traditionally fulfilled by communal corporations:
- General Administration (staff and financial management)
- Maintenance of public order, Fire protection
- Schools, Education, Cultural institutions
- Leisure time activities, Sports
- Social, Family and Youth Services
- Health, especially hospitals and old people’s homes
- Planning, Construction and Residential Services
- Local Economy, Communal Enterprises, Local Savings Bank
Main task of the local administration is the provision of institutions of basic care, e.g. schools, cultural institutions, local public transport, sports activities, the supply with water, electricity and oil and refuse collection. When entering into an activity, local corporations always have to take into account their limits of efficiency.
Tasks exceeding these limits are to be fulfilled by he next higher tier of local administration, e.g. the district or (if existing) region, purpose co-operation union or other body of communal co-operation as mentioned above.
A variety of administrative tasks are imposed on local administrations by the national legislator and/or the federal states. They thus do not need to create a separate administration. In consequence, communal tasks have to be differentiated as to whether they are belonging into the sphere of own genuine and thus voluntary or obligatory competence mentioned first or the area of derived, obligatory tasks (übertragener Wirkungskreis, in Bavaria Articles 8, 58 of the Municipal Regulations).
Here, depending on the Municipal Regulations in the federal state, the corporations of local administration are fully controlled by the state administration (Fachaufsicht, in Bavaria Article 113 of the GO BY). Contrary, in the area of own genuine competence, be it obligatory or voluntary, only the legality of communal actions can be controlled by the state administration, not the practicability or political opportunity (Rechtsaufsicht, in Bavaria Article 110 GO BY).
(1) Voluntary genuine competences: Culture, Sports
(2) Obligatory genuine competences: School planning, waste-water management, construction planning
(3) Derived competences: Law and Order Maintenance, Construction control, Registration authority
The natural subjects administered by a community can be differentiated into inhabitants, citizens and Foreigners with special status (so-called Forensen).
Inhabitants are all residents of a community, e.g. children, people with second or holiday homes, asylum seekers or imprisoned people. They are obliged to use and allow the connection with local public institutions, e.g. roads, water and electricity networks. In consequence they are entitled to use these facilities. They have to fund the community and pay local taxes. Their participation rights are however limited, with slightly different regulations in the Municipal Regulations.
Only citizens have the right to take actively part in local elections. This right is given to all local residents of German citizenship (Article 116 (1) GG) and all local residents having the citizenship of an EU member state. A minimum permanent resident time of 3 months is required. The age limit varies depending on the Federal Sate from 18 (Bavaria) to 16 (Lower Saxony).
In addition, citizens can start and participate in citizen’s action groups; they are obliged to accept honorary positions in their community.
The so called Forensen are natural persons residing outside the communal territory, however e.g. owning business companies in the community and thus granted certain rights to use communal institutions.
As a corporation, the local administration can only act through its organs. In the Municipal Regulations, a dual system of two central organs can be found. The communal council (Gemeinderat) and the mayor (Bürgermeister or Magistrat).
 It dates from 23rd May 1949 (BGBl. I p. 1), last altered by the act from 26th July 2002 (BGBl. I p. 2862/2863).
 It dates from 2nd May 1946 and entered into force 8th May 1946. Its actual version dates from 15th December 1998 (GVBl. 1998, 991), last altered 10th November 2003 (GVBl. 2003 p. 817).
 The actual version of the GO BY dates from 28th August 1998 (GVBl. 1998 p. 797) and was altered by the act from 10th April 2007 (GVBl. 2007 p. 271).
 The actual version of the District Regulations of Bavaria dates from 22nd August 1998 (GVBl. 1998, p. 826) and was altered by the act from 8th December 2006 (GVBl. 2006, p. 975).
 The actual version dates from 22nd August 1998 (GVBl. 1998 p. 850), last altered 8th December 2006 (GVBl. 2006 p. 975).
 The actual version of the Law in the State of Hessen dates from April 1st 2005 (GVBl. 2005 p. 197).
 The Law in the State of Saarland dates from 26th February 1975 (Amtsblatt 75 p. 490), the actual version dates from 27th June 1997 (Amtsblatt 1997 p. 723), last altered by the act from 12th July 2006 (Amtsblatt 2006 p. 1614).
 The Law in the State of Rhineland-Palatinate dates from 22nd December 1982 (GVBl. 1982 p. 476), last altered by the act from 2nd March 2006 (GVBl. 2006 p. 57).
 The Law in the State of Hessen dates from 8th March 1977 (GVBl. 1977 I p. 125).
 The Law in the State of Bavaria dates from 20th June 1994 (GVBl. 1994 p. 555), last altered 10th April 2007 (GVBl. 2007 p. 271).
 The Law in the State of Bavaria dates from 26th October 1982 (BayRS 2020-2-1-I), last altered 10th June 1994 (GVBl. 1994 p. 426).
 The Law in the State of Rhineland-Palatinate dates from 20th June 1995 (GVBl. 1995 p. 175), last altered 12th December 2006 (GVBl. 2006 p. 401).
 The Bye-Law on Big District Cities in Bavaria (Verordnung über Große Kreisstädte, GrKrV) dates from 15th December 1971.
 Established by Law dating 5th June 2001 (GVBl. 2001 p. 348), last altered by act dating 21st March 2002 (GVBl. 2002 p. 112).
 See Decision of the Federal Administrative Court (Bundesverwaltungsgericht) BVerwGE 87, 228 and Decisions of the Federal Constitutional Court (Bundesverfassungsgericht) BVerfGE tome 50 p. 195 and tome 52 p. 95.
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