3.4 Local Self-Government

At the local government level, a distinction is to be drawn between territorial authorities (Gebietskörperschaften) and other local bodies. Territorial authorities are bodies governed by public law with jurisdiction over their territory. Territorial authorities include municipalities forming part of a county (kreisangehörige Gemeinden) and county-free cities (kreisfreie Städte). In contrast, counties, districts, and other local authorities discharge functions assigned to them either by statute or bye-law.
Municipalities (Kommunen), as corporate local self-governing bodies, have the right to manage all the affairs of the local community on their own responsibility within the limits set by law (self-government tasks). In this respect they are exempt from direction and subject only to supervision limited to the question of the legality of administrative activities.100 Over and beyond this, they are required to perform certain functions on behalf of the federal and state governments (delegated functions).

Municipalities/Local Authorities
Number and Structure of Local Authorities in Germany
Germany contains over 13,000 local authorities. In the 117 county-free cities in Germany, the municipality and county coincide. Around one third of Germany's population live in such independent cities. The size of local authorities varies considerably, depending on differences in settlement structure and in state policy on merging communities (local authority territorial reorganization). Thus, North Rhine-Westphalia, with a population of 18 million, has just under 400 local authorities, whereas Rhineland-Palatinate, with 4 million inhabitants, has over 2,300.101

Local Authority Functions
From a legal point of view, a distinction can be made in terms of the degree of responsibility and autonomy that local authorities enjoy in assuming and discharging functions:102

  • In the first place, they are concerned with the affairs of the local community, with respect to which the local authority acts within its own remit (self-government tasks). So-called "self-government tasks" can be matters that a local authority is under obligation to handle (mandatory functions) - like urban land-use planning - or non-mandatory functions with regard to which the local authority decides itself whether or not to take action - like culture or sport. To ensure the effective performance of their autonomous functions, municipalities have the right to adopt bye-laws as generally binding legislation for managing the affairs of the community.103
  • In second place, there are delegated functions, i.e., federal or state government functions that the local authority discharges on behalf of these higher levels of government. Such tasks are delegated functions or mandatory functions to be performed as directed.

In performing self-government tasks, local authorities are subject only to supervision of the legality of these administrative activities, while delegated functions and mandatory functions to be performed as directed are also subject to functional or special supervision.104

Local Government Finance
Local government revenue comes primarily from taxes, charges, and contributions, and from federal and state government allocations. The importance of the various sources of income differs in West and East Germany. Whereas the most important source of revenue for West German local authorities in 2005 was taxes, which provided 40% of income, the most important source of revenue in East Germany was federal and state government allocations, which made up no less than 60% of local authorities' revenues.105 The most important source of income for local authorities is trade tax (Gewerbesteuer), which is levied on the earnings of businesses in the community, and the local authority share in income tax levied by the Federal Government, which is distributed in terms of the taxpayer residence. With respect to both trade tax and real property tax, local authorities have the right to set their own assessment rates. In view of the two most important sources of tax revenue, local authorities can benefit both from flourishing businesses (trade tax) and affluent residents (local authority share of income tax). A system of local financial equalisation between the local authorities of a state (horizontal financial equalisation) and between local authorities and the state (vertical financial equalisation) ensures a certain harmonisation of local financial strength.
Administrative costs (personnel and material) were the biggest item of expenditure (some 50%) in 2005 in both West and East Germany. The second biggest expenditure item (25%) was social security. Spending on fixed assets currently accounts for 12% of expenditure by local authorities in West Germany and 16% in East Germany.106

Local Government Constitutions
The institutions of local authorities and their powers are determined by local government constitutions or local government acts. For historical reasons, they differ considerably from state to state. In the 1990s, however, major moves towards harmonisation were undertaken. Common to all states is the basic structure of local government with a local representative assembly (local council) elected by residents (Gemeinderat/Stadtrat), which is the political decision-making body, together with a local administration (Kommunalverwaltung) headed by a mayor (Bürgermeister, and in large cities Oberbürgermeister).
The figure gives a schematic outline of the local government constitution in Baden-Württemberg and Bavaria (South German council constitution)

Figure: South German Council Constitution: Informationen zur politischen Bildung 242, 19, top)

In the majority of states, the mayor is both chairman of the local council and chief executive of the administration. A few states restrict the functions of the mayor to heading the administration, providing for separate leadership of the council (e.g., Brandenburg, Mecklenburg-West Pomerania, Lower Saxony).

Local Administrative Organisation
The following figure provides an overview of the individual areas of responsibility in German local public administration. The division of the administrative apparatus into separate departments, sections, and offices depends on the size of the community in question.

Figure: Organisation of Local Public Administration, e.g., Figure: Informationen zur politischen Bildung 242, p. 18)

Generally speaking, the local council and local administration are the institutions which provide the citizenry with solutions for the problems directly affecting them and which deliver the most necessary services. It is becoming more and more apparent that the growing need for regional coordination in spatially relevant planning and activities is tending to shift major decision-making from the local level to the regional, state, or even national level. Local authorities therefore find themselves increasingly caught between local government autonomy and the necessity to comply with or take account of supra-local planning projects.

Groupings of Local Authorities
In some states, a number of local authorities can collaborate in a joint organisation to perform administrative functions. These associations of local authorities differ in name from state to state: Verwaltungsgemeinschaft, Samtgemeinde, Verbandsgemeinde, or Amt. The so-called Amtsgemeinde model found favour particularly in the new states of East Germany with their very small-scale local authority structures (e.g., Brandenburg). It offers a fitting combination of community democratic structures (small municipalities with their own local council) and adequate administrative resources (an administrative authority serving several associated municipalities). The competencies of municipalities can be transferred voluntarily (Section 203 (1) of the Building Code) or by force of law (Section 203 (2)) to another territorial authority or association, or to united municipalities, associations of administrations or other comparable statutory groupings of local authorities charged under state law with the discharge of autonomous local government functions. Section 204 of the Building Code provides for joint preparatory land-use plans and urban land-use planning in the context of planning associations and in the event of local government reorganisation. Section 205 of the Building Code provides for the creation of planning associations. Section 9 (6) of the Federal Spatial Planning Act provides for joint preparatory land-use plans.

Counties
The 323 counties in Germany are territorial authorities with the right of self-government provided that their autonomous functions have been transferred to them by law or bye-law. The territory of a county encompasses a number of municipalities (kreisangehörige Gemeinden). The county performs functions beyond the administrative and financial capacity of smaller municipalities (e.g., hospitals, vocational training schools, special schools), or where supra-local arrangements are in the nature of the task, as in the construction of county roads or for public transport. On the other hand, counties, being lower administrative authorities, are also charged with government tasks assigned to them by law. The administrative institutions of a county are the county council (Kreistag), the popularly elected political decision-making body, and the chief executive or county administrator, the Landrat. The Landrat is both chairman of the county council and head of the county administration. County constitutions can differ considerably from state to state. For instance, in some states the Landrat is directly elected by the people and in others he or she is chosen by the county council. The names of bodies also differ.


  


100 Cf. Badura, Staatsrecht, D Rn. 92, 356 f.
101 Cf. Wehling/Kost, Kommunalpolitik in der Bundesrepublik Deutschland – eine Einführung, in idem. (eds.), Kommunalpolitik in den deutschen Ländern, 14 f.
102 Cf. Schmidt-Eichstaedt, Städtebaurecht, 42.
103 Cf. Badura, Staatsrecht, D Rn. 93, 360 f.
104 Cf. Schmidt-Eichstaedt, Städtebaurecht, 42 f.
105 Own calculations on the basis of Karrenberg/Münstermann, Gemeindefinanzbericht 2005, in: Der Städtetag, Heft 5, 2005, 13 ff.
106 Cf. Karrenberg/Münstermann, Gemeindefinanzbericht 2005, in: Der Städtetag, Heft 5, 2005, 13 ff.