Local Government in Germany

Author:Angel-Manuel Moreno
Pages:233-256
 
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1. Brief historical evolution

Local self-government is an old tradition in Germany, but after the period of absolutism, its importance again increased in the reforms influenced by France during the Napoleonic period in western Germany after 1801 and in the Prussian reforms of the same period, with the milestone of the Prussian Städteordnung (code of towns) of 19 November 1808 drafted by the Freiherr vom Stein. This introduced widespread legislation, which continued throughout Germany during the 19th century. Regulation of local self-government had always been a competence of the several States (later called Länder), rather than of the central State (Reich, empire or federation), with the City-States enjoying a special status as members of the central State (as of 1815, Hamburg, Bremen, Lübeck and Frankfurt; since 1945, Berlin, Hamburg and Bremen). For that reason, a different treatment of towns and other local communities was normal. In Prussia, for example, the rural communities were regulated by law only in 1891.

In terms of the central State (Bund) a first guarantee of local self-government, binding for the Länder, was given only by the Weimar Constitution of 1919 (Arts. 17.2 and 127). But in 1935, the Nazi government tried to impose a uniform Deutsche Gemeindeordnung for all the local authorities in Germany, abolishing democratic organisation and in this way unifying the tendencies of legislation.

After 1945, every Land established its own code of local authorities. The German Federal Constitution or «Basic Law» of the Federal Republic of Germany (the Grundgesetz of 1949, originally thought to be provisional) guaranteed local self-government (Art. 28), leaving, however, the legislative power on the subject (the constitutions and laws) to the Länder. After the German reunification in 1990, the new East German Länder established their own legal codes for local authorities. Therefore, to study local self-government in Germany, one has to take into account the regulation of each one of the 16 Länder, in addition

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to the federal constitutional guarantee. However, there have been similar tendencies of development in the several Länder: for example, in the 1970’s there was a drastic reduction of the number of local governments in West Germany, with the corresponding (and ongoing) development in East Germany after 1990; and the 1990’s saw the general introduction of the direct popular election of mayors and of the referendum and popular initiative at the local level, with a tendency towards the privatisation of many local services.

2. Basic facts and figures

At present, the 16 Länder of the Federal Republic of Germany contain 12,629 local communities, among them three City-States. In some Länder, in addition to the local communities, a second tier of self-government exists in the form of the Kreise or [c2f][c44][c51][c47][c4e][c55][c48][c4c][c56][c48][c03](comparable to counties). Although the larger towns do not normally belong to a Kreis, they accomplish the combined functions of the first and second tiers of local self-government. There are 116 of such [c4e][c55][c48][c4c][c56][c49][c55][c48][c4c][c48][c03][c36][c57][c6c][c47][c57][c48], along with 323 Kreise, so that the second tier consists of 439 units.

Furthermore, the larger towns are often subdivided into city districts with more or less their own powers; similar phenomena may be found in merged municipalities, where the old communities sometimes maintain some powers. On the other hand, smaller communities often have joint administrations, as is the case with 77% of the local communities. That can happen based on State (Land) laws, in the old and still-used (although constitutionally problematic) form of an Amt (common office), or a Gemeindeverwaltungsverband or Verwaltungsgemeinschaft. While these solutions do not suppose the consent of the respective communities, the latter may collaborate as well through voluntary intercommunal cooperation ([c3d][c5a][c48][c46][c4e][c59][c48][c55][c45][c44][c51][c47]). Nevertheless, all these solutions obviously reduce the importance of the governing bodies of the individual communities. Therefore there is, in two Länder, the alternative of constructing local communities on two levels: to join several local communities (Ortsgemeinden) into a second-tier community with its own council and administration (the Samtgemeinde in Lower Saxony or the Verbandsgemeinde in Rhenania-Palatinate).

Finally in some Länder, and for certain purposes, there are unions or associations of local communities, forming a sort of third tier of local government ([c2f][c44][c51][c47][c56][c46][c4b][c44][c49][c57][c56][c59][c48][c55][c45][c6c][c51][c47][c48][c0f][c03] [c25][c48][c5d][c4c][c55][c4e][c56][c59][c48][c55][c45][c6c][c51][c47][c48][c0c], in addition to the de-concentrated forms of State administration. For the representation of their interests, local communities are associated in unions on the levels of the Land and of the central State, while separate organisations are formed for the larger towns (Deutscher Städtetag), for the other local communities (Deutscher Städtebund and Gemeindebund) and for the [c2f][c44][c51][c47][c4e][c55][c48][c4c][c56][c48][c03] [c0b][c27][c48][c58][c57][c56][c46][c4b][c48][c55][c03] [c2f][c44][c51][c47][c4e][c55][c48][c4c][c56][c57][c44][c4a][c0c]. These organisations have the specific role of participating in State decisions and at the European level (on the Committee of Regions).

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3. Legal framework of local self-government
3.1. The European Charter of Local Self-Government

Given the historical tradition of local self-government in Germany and Germany’s cooperation at the level of the Council of Europe, this country’s participation in the preparation and enactment of the European Charter of Local Self-Government (ECLSG) was unquestionable. As a matter of fact, Germany was among the first signatory States of the Charter, which was approved by a federal law of 22 January 1987 (BGBl. II, p. 65) and ratified without reservations (although a declaration regarding Berlin has been overruled since the German reunification). Therefore, the ECLSG is, in principle, applicable in Germany. The problem exists, however, that the Charter is based on a federal law while, as emphasised above, legislation regarding local authorities is a power corresponding to the Länder. Thus, there are doubts as to the constitutionality of the law ratifying the Charter. According to practice (Lindau-Agreement of 1957), international treaties affecting the powers of the Länder are accepted, if the Länder have agreed to them beforehand, as in the case of the Charter. But there is no Constitutional Court decision confirming that opinion. Therefore, many German experts argue that Art. 28 of the Basic Law1contains all the guarantees of the ECLSG and apply this article, perhaps using the Charter as an interpretative instrument.

3.2. Federal constitutional guarantee of local self-government (kommunale Selbstverwaltung)

Article 28 of the German Federal Constitution states2the following:

Land constitutions – Autonomy of municipalities:

(1) The constitutional order in the Länder must conform to the principles of a republican, democratic and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. In county and municipal elections, persons who possess citizenship in any member state of the European Community are also eligible to vote and to be elected in accord with European Community law. In municipalities a local assembly may take the place of an elected body.

(2) Municipalities must be guaranteed the right to regulate all their local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by a law, associa-

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tions of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based upon economic ability and the right to establish the rates at which these sources shall be taxed.
(3) The Federation shall guarantee that the...

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