Nicole Lieb, Ludwig Maximilian University of Munich
Relevance of the Practice
The crown of plebiscitary possibilities at the local level is the citizens’ petition. Citizens’ petitions and referendums have been used in spectacular cases that have caused a sensation nationwide. This applies, for example, to the referendum in Dresden on the construction of the Waldschlösschenbrücke.[1] On the other hand, citizens’ petitions to withdraw from the ‘Stuttgart 21’ project have remained unsuccessful.[2] Stuttgart 21 (Baden-Wuerttemberg) is a traffic and urban development project for the reorganization of the railway junction Stuttgart. The core of the project is the conversion of Stuttgart’s main railway station into an underground through-station. As it is more common regarding large-scale infrastructure projects and those happen to occur in urban areas, rural local governments don’t see themselves confronted with citizens’ petitions for referendum that often (or at all). Only the residents of the respective local government may participate in such a local decision, regardless of whether the project has effects beyond the territorial boundaries – which is often the case with large-scale infrastructure projects. Even though German administrative law has so far not offered too great a lack of opportunities for public participation in infrastructure projects, there is discussion about further strengthening public participation in large-scale projects. In principle, public participation is required by law at all levels of planning (demand planning, regional planning procedures, planning approval procedures) of an infrastructure project. Nevertheless, in the past, many citizens have felt that they were not sufficiently and, above all, not involved early enough in the expansion of transport routes. In practice, the people were often not reached, so that new forms of citizen participation were required to accompany the planning process. For this reason, the Federal Ministry of Transport and Digital Infrastructure published the ‘Handbook for good citizen participation in the planning of major projects in the transport sector’[3] in November 2012 with suggestions for improving citizen participation under administrative law. In addition to that or maybe because the participation under administrative law isn’t sufficient, it was recently proposed to develop a ‘right of participation’ as an independent legal category. In a certain contrast to the public participation in large-scale projects, citizens’ petitions and referendums are governed by local law. The regulations standardized in the Local Codes grant citizens ‘real’ rights of initiative and decision-making at the local level.[4]
Description of the Practice
Only an admissible citizens’ petition can be successful, which is why the prerequisites for this shall be examined in more detail here. The various Local Codes impose structurally different but largely comparable requirements on matters that are eligible for a citizens’ petition. In most cases there are negative catalogues with matters that cannot be the subject of a citizens’ petition. In any case, the local government must have the respective decision-making authority – the decision has to be a local responsibility – and the local council must be responsible in accordance with the local government’s internal rules of competence. It is also indispensable that the petition follows a legitimate goal. Often excluded are matters with financial implications (or the budget statutes or the levying of levies), complex planning decisions and planning approval decisions. Such decisions can simply not be made by a simple yes or no question (as is the case with the subsequent referendum). As a second condition, the citizen’s petition must be signed by a certain number of citizens (quorum), while the quorums are usually graded according to the size of the local government. There are great differences in the individual Länder.[5] The petition must be submitted in writing and the question to be decided, which must be answered with yes / no (ambiguous question leads to inadmissibility) together with a justification. It is also necessary to designate some persons (usually three) who are entitled to represent the undersigned. The first period requirement is that only those matters are eligible for a citizens’ petition that have not recently been the subject of a petition or referendum within a certain period of time (1 to 3 years). Incidentally, a differentiation based on its effect must be made: Cashing citizens’ petitions (kassierende Bürgerbegehren) which are directed against a local council decision are only admissible within a certain period of time from the challenged local council decision. Initiating citizens’ petitions (initiierende Bürgerbegehren) that do not turn against a specific local council decision but raise an object themselves are not time-limited.
If a citizens’ petition has been submitted, the further procedure depends on the decision of the local council. If the council declares the petition admissible, it must deal with the content of the formulated question. In a local council meeting, it must be decided whether the content of the petition should be complied with. If the local council makes this decision, then there will be no referendum. If the local council does not comply with the permissible petition, a referendum is to be held within a certain period of time. The question put to the citizens by this is decided in the sense in which it was answered by the majority of the valid votes. This majority must again correspond to a certain proportion of citizens. If the local council decides that the petition is inadmissible, no referendum can be held. In this case, the representatives of the petition can seek legal protection. This is done by filing an action at the Administrative Court, which is directed against the local council’s finding that the petition is inadmissible. After filing an admissible action, the Administrative Court will decide whether the petition submitted was admissible.
Concerning Stuttgart 21, the project opponents collected signatures for a citizens’ petition concerning the exit of the City of Stuttgart by not signing any further contracts and by concluding a termination agreement with the project partners. On 14 November 2007, 67,000 signatures against the project were handed over in the town hall. 61,193 proved to be valid; 20,000 were necessary. On 20 December 2007, the Stuttgart local council rejected the application for approval of a referendum on the ‘withdrawal of the state capital from the Stuttgart 21 project’ by 45 to 15 votes, on the grounds that it was legally inadmissible. The referendum was directed against fundamental decisions of the local council from 1995 (framework agreement) and 2001 (supplementary agreement) and was limited in time in accordance with the Local Code for Baden-Wuerttemberg, which provides for an application period of six weeks after publication of the local council decisions. In addition, the aim of the annulment was inadmissible because it concerned a financial principle decision reserved to the local council. This decision has been confirmed by the court. The three other citizens’ petitions against the large-scale infrastructure project Stuttgart 21 also failed (for similar reasons).
Assessment of the Practice
At local level, there are instruments such as citizens’ petitions and referendums that serve the direct democracy. However, their practical benefits are often hampered by restrictive state legislation – e.g. a comprehensive negative catalogue, strict conditions of legality – and sometimes less citizen-friendly case law. But it can recently be seen that by and large the scope of citizens’ petitions is extended and the hurdles for their implementation are lowered. In some Länder (e.g. Hesse, Lower Saxony, Rhineland-Palatinate), the hurdles have recently been reduced by changing fixed quora in terms of the number of supporters’ signatures to staggered (and thus more flexible) quorums. In Lower Saxony there is a peculiarity that the citizens’ petition has a blocking effect until the time of the referendum, so that no conflicting decision in this regard may be made until then.[6] Forms of direct democracy seem to be in high demand. It can be observed that citizens’ petitions are often used against large-scale infrastructure projects and thus more in urban regions, but with moderate success. It is still a great tool of people’s participation in local decision-making and should be further developed in a citizen-friendly way. However, it is problematic that these instruments for participation do not contribute to an interplay between urban and rural. A local decision is only brought about by residents of the affected community, although the project can also have an impact on the surrounding rural area and vice versa. A good example of this is the long-standing discussion about the 3rd runway at Munich Airport. Munich Airport is not located in the territory of Munich City (ULG), but on the territory of a surrounding (much smaller) RLG. For this reason, only these (numerically ‘few’) rural residents decide on a citizens’ petition for the 3rd runway, while the approximately 1.5 million inhabitants of the City of Munich who would mainly benefit from it (also in respect of the major economy located in the city) have no right to participate. Because of the regional (and not only municipal) relevance of large infrastructure projects there is a need for more flexible perimeters and methodologies for participation. One idea for a region like Munich is to create a further third-tier administrative unit, that means Munich as an independent district,[7] in order to unite rural and urban interests on one level and to balance unilateral burdens as best as possible.
References to Scientific and Non-Scientific Publications
Schmidt C, ‘Die Entwicklung von Bürgerbegehren und Bürgerentscheid seit 2016’ (2018) KommJur 165
Schoch F, ‘Rechtsprechungsentwicklung – Bürgerbegehren und Bürgerentscheid im Spiegel der Rechtsprechung‘ (2014) NVwZ 1473
Thum C, ‘20 Jahre Bürgerbegehren und Bürgerentscheid in Bayern’ (2015) 146 BayVBl. 653
—— Bürgerbegehren und Bürgerentscheid in Bayern (70th edn, Carl Link 2019).
[1] BVerfG, decision of 29.05.2007 – 2 BvR 695/07.
[2] VG Stuttgart (Administrative Court), judgement of 17.07.2009 – 7 K 3229/08.
[3] An English version can be downloaded here: <https://www.bmvi.de/SharedDocs/EN/publications/manual-for-good-public-participation.html>.
[4] See for an overview Friedrich Schoch, ‘Rechtsprechungsentwicklung – Bürgerbegehren und Bürgerentscheid im Spiegel der Rechtsprechung‘ (2014) NVwZ 1473, 1473ff.
[5] While in North Rhine-Westphalia, depending on the size of the local government, a quorum of 3 – 10% of the population suffices, in Saxony a quorum of 10% of the citizens is required.
[6] See, for further details, Christopher Schmidt, ‘Die Entwicklung von Bürgerbegehren und Bürgerentscheid seit 2016‘ (2018) KommJur 165.
[7] See, therefore, report section 5.3. on the Creation of a Further Third-Tier Administrative Unit.