Partner Institution: LMU Munich, Research Center for Public Procurement Law and Administrative Cooperations
The System of Local Government in Germany
Christoph Krönke, Ludwig Maximilian University of Munich
In Germany, government at the local level is administered through municipalities (Gemeinden) as well as second-tier local governments such as counties (Kreise). Larger municipalities with more than 100,000 citizens are often assigned the status of independent city or county-free city (kreisfreie Stadt); in addition to their municipality responsibilities, these cities also carry out (second-tier) county responsibilities. In some of the German Länder, there are even third-tier local governments, for example districts (Bezirke) in Bavaria. There are no areas that fall directly under federal or Länder rule, as the system of local government extends to the entire territory of the country. However, as jurisdiction over the organizational powers of local authorities lies with each of the 16 Länder, ‘local government’ may come in different shapes. This is particularly true for its internal organization, but may equally be said of its precise powers and responsibilities. Nevertheless, there are several common features of local government.
The German concept of local self-government, as enshrined in Article 28(2) of the Basic Law, implies that local government entities have a general competence (Allzuständigkeit) to carry out all responsibilities that are relevant to the local community. Since this general competence is comprehensive, there is, as a result, no such thing as single purpose local governments in Germany. This means that local governments in Germany may, for instance, run public libraries, museums, theaters, opera houses or concert halls, that they can provide airport facilities, energy/water supply, waste/sewage disposal, run hospitals, kindergarten facilities or homes for the elderly. Of course, these vast competences do not go unchecked; local authorities may engage in such activities only within their financial capacity and, in all their activities, local authorities have to abide by the laws and limitations of federal and Länder legislation. Nevertheless, contrary to the Anglo-Saxon concept of ‘ultra-vires’, local authorities do not act illegally if they take measures in areas that do not fall within responsibilities explicitly transferred to them by federal or state legislation. In view of their general competence, they just need not to be empowered specifically to take action at the local level.
The right of local governments to self-government (i.e. to carry out all responsibilities falling within their ‘general competence’) is constitutionally enshrined at the federal level in Article 28(2) of the Basic Law (BL). This provision reads as follows: ‘Within the limits prescribed by law, municipalities shall be guaranteed the right to regulate all local affairs in their own responsibility. Within the limits of their responsibilities as defined by law, associations of municipalities shall equally have the right of self-government according to the laws. The guarantee of self-government shall include the basis of financial autonomy; it shall comprise the right of municipalities to a source of tax revenues that corresponds with the economic ability of the tax debtors (e.g. business tax – Gewerbesteuer), and the right to fix the rates at which these sources shall be taxed.’ Provisions similar to Article 28(2) BL are also contained in the constitutions of the 16 Länder which thus reinforce the constitutional recognition of local authorities and their right to self-government. The constitutional recognition of local government is generally the same for all municipalities, regardless of size or socio-economic importance.
In contrast, the constitutional standing of counties and districts is weaker. Compared to the comprehensive self-government of their constituent municipalities, these second- and third-tier local government entities may not carry out all responsibilities of local importance but are granted the right to self-government only ‘within the limits of their responsibilities as defined by law’ (Article 28(2) BL).
It is important to stress that Article 28(2) BL as well as the corresponding constitutional provisions at Länder level do not grant local autonomy as an absolute right. Local autonomy is only guaranteed in principle, while its precise scope is subject to legislation. Thus, it is the law-makers at federal and Länder level that define the precise extent and limitations of local self-government. In practice, the sheer volume of (sometimes very detailed) federal and Länder statutes has considerably limited local autonomy. However, as local autonomy is constitutionally guaranteed in principle, local governments are protected by virtue of Article 28(2) BL against excessive and immoderate restrictions of local autonomy and preserves a ‘core sphere’ (Kernbereich) of responsibilities that must remain with municipalities (i.e. finances, local planning, personnel matters, organizational autonomy and the freedom to engage in joint administration with neighboring communities). In addition to that, Article 28(2) BL protects local authorities, to some extent, against the revocation of responsibilities (Aufgabenentzug) e.g. by reallocating them at a higher (more centralized) administrative level (Hochzonung). As a result, only very substantial gains in cost-efficiency, for instance, may justify that responsibilities are taken away from local governments.
As pointed out, the legal status is primarily the same for all municipalities regardless of their size and socio-economic importance, although larger municipalities (and especially independent cities) have, with no doubt, more political bearing. As a general principle, the German system follows a symmetrical approach towards the legal status of local governments. However, this symmetry of responsibilities de jure can be modified in various ways which may result, de facto, in an asymmetrical allocation of responsibilities.
Local authorities may, for example, agree among themselves to join forces and create joint administrative units to carry out specific responsibilities in forms of what is called inter-municipal cooperation (interkommunale Zusammenarbeit). For instance, they may, with regard to capacity and cost-effectiveness, share their resources and establish a joint inter-municipal corporation (Zweckverband) which is assigned to take care of sewage and/or waste disposal. Such cooperation is particularly common between smaller municipalities but are equally practiced within larger conurbations and between counties and independent cities.
Because of their size, independent cities are capable of carrying out both municipal and county responsibilities through their city administration as a single unit. In rural areas, by contrast, county responsibilities are carried out by counties along with their constituent (smaller) municipalities. The precise division of duties between counties and their municipalities is laid down in Länder statutes and may therefore vary. As a general rule, the allocation of responsibilities depends on the capacities of the individual local unit. This means that for reasons of administrative efficiency, counties will regularly assume the execution of duties that cannot be effectively handled by their constituent municipalities. For instance, hospitals will usually be run at county (or even district) level while minor administrative duties such as citizen registration may remain with the constituent municipalities.
Despite the recent turbulences in the course of the financial and migration crises, the political system established under the Basic Law has proven to be relatively stable. In the overall perspective, two parties, the Christian Democrats (CDU/CSU) and the Social Democrats (SPD) still each win between 20 to 40 per cent of total votes while four smaller parties, the Liberal Free Democrats (FDP), the Greens (Bündnis 90/Die Grünen), the Left Party (Die Linke) and the Alternative for Germany (AfD), attract between 5 and 20 per cent of all voters. In the East German ‘new’ Länder, Die Linke and AfD are usually stronger in elections than in West Germany. On the Länder level and on the local level, the landscape of political parties is more diverse. In addition to the aforementioned parties, there are several parties which are particularly active in certain regions and municipalities, taking account of political issues with specific relevance for the respective region or municipality. In Bavaria, for example, the Independent Voters (Freie Wähler) are usually quite strong in the elections – they won 11,6 per cent of the votes during the 2018 elections for the Bavarian Landtag and are hence currently part of the Bavarian government, and they are represented in numerous municipal councils.
The spatial distribution of the population still reflects, to a certain extent, the decentralized structure of the Federal Republic of Germany. 27 per cent of the population (i.e. around 22 million people) live in smaller municipalities with 5,000 – 20,000 inhabitants. Another 27 per cent live in medium sized cities (Mittelstädte) with 20,000 – 100,000 inhabitants. 31 per cent of the German population live in major cities (Großstädte) with more than 100,000 inhabitants. The largest cities with more than 1,000,000 inhabitants each are Berlin (3,700,000), Hamburg (1,890,000), Munich (1,470,000) and Cologne (1,080,000). Of course, many smaller municipalities and medium sized cities are part of a metropolitan area (Ballungsraum). Together with Böblingen (50,000), Waiblingen (55,000), Sindelfingen (64,000), Tübingen (89,000), Ludwigsburg (93,000) and Esslingen (93,000), for instance, Reutlingen (115,000), Heilbronn (123,000) and Stuttgart (634,000) as well as all surrounding municipalities form the Stuttgart metropolitan area (total population: 5,300,000). In this perspective, around 77 per cent of the German population nowadays live in metropolitan regions.
Bogumil J and Holtkamp L (eds), Kommunalpolitik und Kommunalverwaltung, Eine praxisorientierte Einführung (bpb 2013)
Burgi M, ‘Federal Republic of Germany’ in Nico Steytler (ed), Local Government and Metropolitan Regions in Federal Systems (McGill-Queen’s University Press 2009)
— — Kommunalrecht (6th edn, CH Beck 2019)
Gern A and Brüning C, Deutsches Kommunalrecht (4th edn, Nomos 2019)
Kuhlmann S, Heuberger M and Dumas B, Kommunale Handlungsfähigkeit im europäischen Vergleich: Autonomie, Aufgaben und Reformen (Nomos 2021)
Lange K, Kommunalrecht (2nd edn, Mohr Siebeck 2019)
Mann T and Püttner G (eds), Handbuch der kommunalen Wissenschaft und Praxis, Band 1: Grundlagen und Kommunalverfassung (3rd edn, Springer 2007)
 For these and the following considerations see Martin Burgi, ‘Federal Republic of Germany’ in Nico Steytler (ed), Local Government and Metropolitan Regions in Federal Systems (McGill-Queen’s University Press 2009) 140-142.
 See Veith Mehde, ‘Steering, Supporting, Enabling: The Role of Law in Local Government Reforms’ (2006) 28 Law & Policy 164, 165.
 See Burgi, Federal Republic of Germany, above, 143-146.
Local Responsibilities and Public Services in Germany: An Introduction
Christoph Krönke, Ludwig Maximilian University of Munich
Urban local governments and rural local governments (hereinafter: ULGs and RLGs) traditionally have a wide range of responsibilities and, in particular, offer numerous public services. In the face of the growing urban-rural divide, these responsibilities are undergoing profound change. This change is influenced by other factors such as demographic changes and migration movements, and it can affect both the scopes of the responsibilities and the modalities of carrying them out.
While certain material responsibilities might be pushed into the background or released in their entirety (by way of a ‘material privatization’), new challenges can become the focus of local government. At first glance, this applies above all to rural areas, many of which are typically affected by a significant population decline, with all its negative economic and social consequences as well as certain positive impacts, including more favorable housing conditions and a better natural environment. However, it is also the large cities and metropolitan regions that are subject to substantial segregation processes and difficulties, for example, in maintaining an efficient public transportation service, in providing sufficient housing opportunities and in dealing with the tensions following from a growing cultural and ethnic diversity. As a result, the scopes of the responsibilities carried out by ULGs and RLGs are de facto increasingly divergent and differentiated, as opposed to a de jure symmetrical approach towards responsibilities.
As regards the modalities of carrying out the responsibilities and offering the services, the changes mainly (but not exclusively) affect organizational and structural aspects. For reasons of efficiency and effectiveness, rapid changes and specific challenges may, for example, make it necessary to mobilize significant private resources in order to fulfil particularly pressing tasks through the award of public contracts or concessions as well as public private partnership undertakings. Also, local government entities might decide to provide certain public services through commercial (instead of sovereign) activities. In addition to these forms of commercialization, privatization and public private partnership, smaller local governments in particular may be forced to join forces and to cooperate with each other for the purpose of carrying out their respective responsibilities with pooled resources. Similar to their diverging substantial scopes, the different organizations and structures of responsibilities of ULGs and RLGs show more and more asymmetries.
These upheavals of local governance often necessitate policy changes – be it for the financial support of certain types of projects, be it for the (re-)definition of responsibilities, be it be it for the (re-)structuring of local government. Such structural reforms may include the reallocation of responsibilities (e.g. a transfer upon umbrella entities), the creation of new cooperative structures (e.g. inter-municipal corporations) or – as a last resort – amalgamations of smaller local government entities (e.g. by way of a comprehensive territorial reform). In many jurisdictions, these and other policy changes are triggered and coordinated (or blocked and restricted) by powerful single local government entities or local government associations.
Articus S, ‘The Future of the City? – City of the Future! Reflections on the Situation and Future of Municipal Self-Government in Germany’ (2002) German Journal of Urban Studies <https://difu.de/node/6117>
Held FW, ‘The Municipal Economic Law: New Developments’ (2002) German Journal of Urban Studies <https://difu.de/node/6117>
Püttner G, ‘Municipal Tasks, Task Evolution and Principles of Self-Government’ (2002) German Journal of Urban Studies <https://difu.de/node/6121>
Steckert U, ’Liberalization, Competition and Identity Crisis in Municipal Enterprise – 33 Observations and Theories’ (2002) German Journal of Urban Studies <https://difu.de/node/6123>
Wollmann H, ‘Is Germany`s Traditional Type of Local Self-Government Being Phased out?’ (2002) German Journal of Urban Studies <https://difu.de/node/6119>
 See for these different structures of local government Francesco Palermo and Karl Kössler, Comparative Federalism – Constitutional Arrangements and Case Law (Hart Publishing 2019) 305-314.
Local Financial Arrangements in Germany: An Introduction
Nicole Lieb, Ludwig Maximilian University of Munich
The financial situation of local governments is critical in large parts of Germany. The budgets of many local governments are in the red and are leading to an increase in debt, which is why loans (Kassenkredite) are increasingly being used as a financing instrument for current expenditure. The reasons for this are manifold (financial crisis, economic decline, tax reforms, responsibility assignments by the federal and Länder governments, increase in investments in the social sector), but the consequence is clear: This development endangers the autonomous action and creative freedom of local governments.
The financial sovereignty is part of the guarantee of the right to local self-government under Article 28(2) of the Basic Law (BL). It guarantees the municipalities an independent income and expenditure management within the framework of an orderly budgetary system. At the core of this sovereignty are the principles of financial self-responsibility, which is made clear by sentence 3 of Article 28(2) BL: ‘The guarantee of self-government shall include the basis of financial autonomy; it shall comprise the right of municipalities to a source of tax revenues that corresponds with the economic ability of the tax debtors [e.g. business tax – Gewerbesteuer], and the right to fix the rates at which these sources shall be taxed.’ A central problem of the financial plight of the municipalities is the not cost-covering congestion of ever costlier tasks (Aufgabenüberbürdung) through the federal government. This is the opposite of the revocation of responsibilities (Aufgabenentzug). Within the framework of the Federalism Reform I, this problem could be stopped or mitigated by the prohibition on the assignment of responsibilities (Aufgabenübertragungsverbot) in Article 84(1)(7) BL.
Municipalities earn their revenue mainly through two main instruments: Levies and financial allocations. Levies can be taxes (Steuern), contributions (Beiträge) or fees (Gebühren) which are based on the Local Tax Law (Kommunalabgabengesetz) of the respective Land. Financial allocations are based on the Financial Equalization Act of the respective Land and the financial constitutional provisions of the respective Land constitution. Taxes account for the largest share of revenue (40 per cent), followed by allocations (20 per cent) and fees/contributions (10 per cent).
Tax revenue can be generated by local authorities in the form of local excise and expenditure taxes. In this respect, the Local Tax Laws grant them the right to find taxes, provided that these taxes are not ‘similar to taxes regulated by federal law’. Important examples of this type of tax are the amusement tax, the dog tax, the overnight stay tax and the tax on second homes. Concerning a second group of taxes, only the revenue sovereignty and not also the tax finding right lies with the municipalities. However, they have the possibility to determine the tax burden of their inhabitants in relation to their financial needs by setting so-called assessment rates to a limited extent. This applies to real taxes (land tax and business tax). Article 106 (7)(1) BL obliges the Länder to pass on a certain share of their total share of the so-called community taxes (income tax, corporation tax and turnover tax) to the municipalities (municipal financial equalization).
There are also short-term financing instruments such as loans, donations or sponsoring. In addition, municipalities generate income from economic activity, including interest from leases, rentals, capital investments and the concession fee for the provision of public roads for the laying of supply lines. The participation of municipalities in general legal transactions, in particular the acquisition and sale of assets, is subject to various conditions regulated in the respective Municipal Code (Gemeindeordnung). The initiation of insolvency proceedings against the assets of a municipality is excluded by law.
The legal framework within which the municipalities exercise their revenue and expenditure sovereignty is formed by Budget System (Haushaltswesen). The legal basis for this can be found in the respective Municipal Code while the legal basis of the budget economy in the respective municipality is the budget by-law (Haushaltssatzung) which has to be adopted for each calendar year in the framework of the budget plan (Haushaltsplan). At the end of each year financial accounting (Rechnungslegung) has to be made, which is then subject to a so-called audit (Rechnungsprüfung).
The structure of the county finances follows the structure described for the municipalities in many areas, and there is also a precarious financial situation at this level. A county specific financing instrument of great economic and political importance is the county levy (Kreisumlage). It is levied by the counties on the municipalities belonging to the county which constitutes a fundamental, but constitutionally justified encroachment on the municipalities’ guarantee of local self-government under Article 28(2) BL. There is often a dispute between the municipalities and counties about the legitimate amount of the county levy.
It is not possible to make a clear distinction between rural local governments (RLGs) and urban local governments (ULGs). ULGs usually have the advantage that they can cover a considerable portion of their financial needs with income from business tax because many companies settle in conurbations. Nevertheless, no general statement can be made about this as there are also ULGs with precarious financial situations. Dealing with financial issues is therefore an issue for both RLG and ULG.
Schwarting G, Der Kommunale Haushalt (5th edn, Erich Schmidt Verlag 2019)
Oebbecke J, ‘Rechtliche Vorgaben für den Haushaltsausgleich und ihre Durchsetzung’ (2009) 25 Gemeindehaushalt 241
 Compare for example Art 77 Bavarian Municipal Code.
The Structure of Local Government in Germany: An Introduction
Nicole Lieb, Ludwig Maximilian University of Munich
Local governments in Germany are territorial entities and their existence is therefore based on the territory allocated to them. Territorial reforms like amalgamations are therefore an encroachment on their territorial sovereignty and therefore need to be justified under the right to local self-government (Article 28(2) of the Basic Law [BL]). Detailed regulations on the admissibility of territorial changes can be found in the Local Codes. A distinction must be made between voluntary territorial changes, which can be brought about by public law contracts, and compulsory territorial changes, which require a law. The intensity of the intervention also varies depending on whether it involves the dissolution of local governments (Auflösung), the merger of two (or more) local governments into a new local government (Verschmelzung), the incorporation of one local government into the territory of the other local government (Eingemeindung) or the separation of individual parts of a local government (Ausgliederung). Counties are associations of municipalities (Gemeindeverbände) in the constitutional sense which is why they also have the right of self-government according to Article 28 (2)(2) BL and changes of territory must be justified beforehand. Territorial reforms at the municipal level take place periodically (in the old Länder last until the mid-1970s) or due to historical upheavals (as in the new Länder). The political objectives are to improve performance in the interests of the inhabitants and the tasks to be performed. At present, in several Länder (Brandenburg, Lower Saxony, Thuringia) the county level in particular is covered by territorial reforms, although some reforms have recently been announced at the municipal level (Mecklenburg-Western Pomerania, Rhineland-Palatinate). Rural local governments (RLGs) rather face mergers or even dissolutions (very rare) while urban local governments’ (ULGs’) territory can either be expanded through incorporations or on the contrary get separated because the territory (and responsibilities) gets too unmanageable.
Inter-municipal cooperation refers to the coordinated execution of individual administrative responsibilities by the participating local bodies. Cooperation may take the form of setting up another institution (e.g. Zweckverband) or it may be carried out by one local government taking over the tasks for one or more other local governments. This is of course more likely to happen between RLGs, while ULGs join (not always balanced) forces with nearby RLGs to improve the urban-rural linkage. The basis for this is the respective Länder law. These offer various types of cooperation under public law, regulate the circle of responsibilities that are generally related to cooperation and finally lay down the basic principles of the organization. The right of each local government to cooperate with other local bodies is part of the right to self-government guaranteed by Article 28(2) BL in the form of the sovereignty to cooperate. In view of the demographic development and the growing budget problems, voluntary and compulsory inter-municipal cooperation is likely to increase in the coming years, particularly in rural areas. Even though inter-municipal cooperation represents a shift in responsibility for the performance of responsibilities, German public procurement law has provided an exception for it since 2016 (paragraph 108(6) GWB) that was already confirmed by the European Court of Justice (ECJ) earlier. In the field of public-law forms of inter-municipal cooperation a distinction must be made between the joint inter-municipal corporation (Zweckverband) and the public-law agreement (öffentlich-rechtliche Vereinbarung). The joint inter-municipal corporation is created by a public law contract between municipalities and/or counties, is institutionalized and thus itself a public territorial entity. This means that it can carry out externally effective actions in place of the otherwise competent member local governments; but it is not included in the warranty area of Article 28(2) BL. On the contrary, a public-law agreement is also concluded through a public-law contract but it arises no new institution. It has the content that one of the participants only assumes individual tasks of the other participants (delegating agreement) or undertakes to perform such tasks for the other participants (mandating agreement).
In particular, to deal especially with urban-rural problems or in conurbations, institutionalized administrative units like Verband Region Stuttgart and Regionalverband Frankfurt/RheinMain are being set up, but they may also lack the constitutional quality of Article 28(2) BL. They are typically responsible for tasks relating to transport and spatial planning, economic development and landscape design.
Pielow JC, Groneberg ST, ’Die deutschen Landkreise’ (2014) 9 Juristische Schulung 794
Röhl HC, ‘Veränderungen kommunaler Selbstverwaltung durch interkommunale Zusammenarbeit’ in Hans-Günter Henneke (ed), Kommunale Selbstverwaltung in der Bewährung (Boorberg 2013)
 This is an intervention in the guarantee to local self-government that needs to be justified.
Intergovernmental Relations of Local Governments in Germany: An Introduction
Nicole Lieb, Ludwig Maximilian University of Munich
System of Local Tasks and State Supervision
The structural distinction between the two poles of self-government tasks (tasks of a local government’s own sphere of influence; Selbstverwaltungsaufgaben) and state tasks (tasks in the assigned sphere of influence or external tasks; staatliche Auftragsangelegenheiten) is elementary for the understanding of intergovernmental relations of local government in Germany. Due to the existence of different task categories in horizontal and vertical respects, voluntary or compulsory, but also thematically and structurally, as well as the fragmentation of Länder law, it is not easy to filter out a general system of intergovernmental relations. In the course of development, a distinction has been made in Germany between Länder with a dualistic task model (e.g. Bavaria) and Länder with a monastic (uniform) task model (e.g. Brandenburg). In the relationship between the county and the respective Land, the tasks are carried out in the same structures as in the relationship between the municipality and the Land, i.e. separately depending on whether the dualistic or the monistic system is the basis. As a result, the same types of tasks are to be distinguished at the county level as at the municipal level. The debate on the various task categories and the resulting legal consequences must take place according to the affiliation to one of the two models. In Ländern with the dualistic system, local governments can be assigned state tasks as external tasks, which are generally outside the scope of Article 28(2) of the Basic Law (BL). Their imposition is an intervention that needs to be justified and often leads to intergovernmental disputes, particularly because of the financial implications of resolving them. That is why local governments are increasingly defending themselves against the excessive burden of tasks (Aufgabenüberbürdung). This applies mostly to RLGs which are already struggling with their financial capacity and don’t get enough support from the higher local levels.
Intergovernmental relations are also relevant when a municipality wants to defend itself against a measure of state supervision. In the event of a dispute, it is usually a question of the competence of the state authority and the scope of its supervisory powers. The result depends – as already mentioned above – on whether the municipality is involved in the execution of a self-government task or a state task. State supervision can be divided into two dimensions: on the one hand, it serves the municipalities as a defensive right, while at the same time it can also be used as a controlling tool. It is governed by the Länder constitutions and, depending on its scope, is intended to ensure legality (legal supervision; Rechtsaufsicht) or coordination within the state as a whole (subject-specific supervision; Fachaufsicht). Legal supervision aims to ensure compliance with formal and substantive European law, federal and Länder law. It is open to the execution of voluntary and compulsory tasks without instructions. In the case of state tasks or compulsory tasks in accordance with instructions, the standard of expediency is added to the standard of legality. In principle, authority to issue directives (Weisungsbefugnisse) only exists for the last-mentioned tasks. The instruments are to be differentiated according to preventive or repressive supervision. The following supervisory instruments are provided for in all Länder: right to information (Informationsrecht), right of objection or cancellation (Beanstandungs- bzw. Aufhebungsrecht), right to order or instruction (Anordnungs- bzw. Anweisungsrecht) and substitute performance (Ersatzvornahme). The selection within the supervisory instruments should be based on the prohibition of excessive use, i.e. graduated according to the intensity of the intervention. State supervision gains the greatest relevance in the course of monitoring the budgetary system of the municipalities. The respective Municipal Code contains the principle of balanced budgets. If this rule is violated by the municipality, the state supervisory authority is obliged to ensure that the municipality restores the budget balance. In the relationship between the county and the respective Land, the tasks are carried out in the same structures as in the relationship between the municipality and the Land, i.e. separately according to whether the dualistic or monastic system is the basis. As with the municipalities, but to a much greater extent, there is also an interlocking with the administrative organization of the Land at the lower level. The scope of tasks of the counties is, of course, to be delimited not only with respect to the Land but also with respect to the municipalities belonging to the county. There are no significant differences between urban and rural areas with regard to intergovernmental relations, only with regard to which authority is specifically responsible for supervision.
The legal protection against a supervisory action is available to a local government and takes place before the Administrative Court (Verwaltungsgericht). Its decision depends on whether it is involved in the handling of a self-government task or a state task. In most cases, it is a question of the delimitation of the competence of a state authority and the scope of its supervisory powers. As mentioned earlier, the right of local self-government in Article 28(2) BL gives local governments a strong position to defend themselves.
Local Authority Associations
Not municipalities, but representatives of municipal interests organized under private law are the Local Authority Associations (Kommunale Spitzenverbände), which are very powerful in political life: The German Association of Cities and Municipalities (Deutscher Städte- und Gemeindebund), in which mainly small and medium-sized municipalities and cities (approx. 13,000) are grouped together, the German Association of Cities (Deutscher Städtetag), an association of larger towns and cities (approx. 3,600), and the German Association of Counties (Deutscher Landkreistag; approx. 295), each with state associations. They are voluntary associations on a private law basis so they don’t underlie state supervision. These umbrella organizations represent the interests of the counties, cities and municipalities vis-à-vis other political actors and exert a decisive influence on the Länder and federal governments. An indication of the increased importance of European law in this area as well is the existence of the so-called European Office of German Local Self-Government in Brussels.
The coordination of their work lies within the Federal Association of Local Authority Associations (founded on 19 May 1953). The Local Authority Associations are organized at both federal and state level while they are financed primarily by membership fees or by levies and are thus independent and autonomous in relation to state directives. This enables them to represent the interests of their members decisively. Despite numerous advances, the Local Authority Associations have so far not succeeded in establishing a qualified right to be heard or even a right of legislative co-determination by supplementing Article 28 of the Basic Law. However, individual Länder (such as Bavaria, Baden-Württemberg, Hesse, Saxony, Thuringia and Brandenburg) guarantee constitutionally that they can participate in legislative procedures. Other external functions include an advisory and consultation function for planning projects and decisions of the federal government and the Länder relevant to local authorities, and the representation of the interests of the members of the associations vis-à-vis the federal government and the Länder. Another major field of activity of the Local Authority Associations is their internal functions, e.g. the organization of the exchange of experience and opinion-forming process between the members, as well as their technical and legal advice.
Kirchhof F, ‘100 Jahre DLT’ (2016) 131 DVBl 1553
Mann T and Püttner G (eds), Handbuch der kommunalen Wissenschaft und Praxis, Band 1: Grundlagen und Kommunalverfassung (3rd edn, Springer 2007)
Schoch F, ‘Die staatliche Rechtsaufsicht über Kommunen‘ (2006) Juristische Ausbildung 188
Vietmeier H, ‘Die Rechtsstellung der Kommunen im übertragenen Wirkungskreis‘ (1993) Deutsches Verwaltungsblatt 190
Website of the German Association of Cities and Municipalities, <www.dstgb.de>
Website of the German Association of Cities, <www.staedtetag.de>
Website of the German Association of Counties, <www.landkreistag.de>
 Around the two poles there are further categories such as ‘compulsory task according to instructions’ (Pflichtaufgabe nach Weisung), ‘compulsory task without instructions’ (Pflichtaufgabe ohne Weisung), ‘lending of organs’ (Organleihe), ‘actions being taken as lower state administrative authorities’ (Tätigwerden als untere staatliche Verwaltungsbehörde), etc. In all cases there is an interlocking with the state administrative organization through the so-called state supervision of the local governments.
 A further detailed explanation of the two systems can be found at Martin Burgi, Kommunalrecht (6th edn, CH Beck 2019) para 8.
 For legal protection in the relationship between the state and the municipality, see Burgi, Kommunalrecht, above, para 9.
People’s Participation in Local Decision-Making in Germany: An Introduction
Nicole Lieb, Ludwig Maximilian University of Munich
The most important form of participation in political decision-making at local level is the active and passive voting right, especially the election of the local council (municipal or county council) or the election of the mayor or county administrator. While individuals naturally run for office in mayoral/county administrator elections, lists of the local divisions of the political parties active nationwide dominate in local council elections. Elections at the local level are regulated in the respective Local Code (Municipal or County Code) and in the respective Local Election Law (Kommunalwahlgesetz). The constitutional basis therefore is Article 28(1)(2) of the Basic Law (BL), according to which ‘the people’ are also to be found in the ‘counties and municipalities (…) must have a representation which has resulted from general, direct, free, equal and secret elections’ (electoral principles). There are great differences in the individual countries in the definition and design of the respective electoral system. Complicated mixing systems have arisen here within the scope defined by Article 28(1)(2) BL. The principle of the proportional representation system, in which the seats are distributed in proportion to the votes cast for the nominations, is consistently practiced. In numerous Länder, however, this has been supplemented by personnel elements (e.g. Baden-Württemberg with a so-called ‘favorites list’ / ‘diversion’). The system of majority voting, in which applicants run directly against each other and the one with the highest number of votes wins the seat, is only envisaged under strict conditions, especially if one or no list has been submitted. In the various countries, either the d’Hondtsche method or the Hare / Niemeyer method or the ‘divisor method with standard rounding’ according to Sainte-Laguë / Schepers are used in the calculation. In various Länder, attempts have been made to introduce a blocking clause in order to avoid splitting the municipal councils into many small groups and to ensure their functionality. However, under the current framework conditions, the Federal Constitutional Court considered this (especially the 5 per cent clause) to be a violation of the principle of equal election.
The citizens of the respective local government are entitled to vote and are therefore holders of an active right to vote. Citizens are all residents of a local government who are entitled to vote in local elections in accordance with the provisions of the respective Local Election Law. Accordingly, citizens are all Germans (Article 116 BL) or EU foreigners, provided that they are residents (main residence) in the local government (municipality/county) concerned for between 16 days and six months (depending on Länder law) and have reached the age of 16 or 18 (also depending on Länder law). The provisions on the right to stand as a candidate (eligibility for election, also passive right to vote) are linked to this, but in some cases provide for a longer period of residence in the local government’s territory and/or a higher age. After the conclusion of the Maastricht Treaty in 1992 and the introduction of citizenship of the Union, the constitution was supplemented by Article 28(1)(3) BL. It states that ‘persons who are nationals of a Member State of the European Community’ are ‘entitled to vote and to be elected in elections in counties and municipalities’ in accordance with the law of that state.
But it is becoming increasingly difficult for parties to recruit committed political personnel for local political mandates and offices. Particularly in rural small local governments, where local politics is based purely on volunteer work (with at least an expense allowance), the parties often fail to fill the election lists with suitable candidates. The reasons for this are the burden of bureaucracy and the very high expenditure of time involved. At the same time, local politicians see themselves exposed to incitement and hostility in the increasingly coarse interactions in the society which can have both psychological and physical effects. Especially the honorary mayor’s office represents a great challenge with regard to the compatibility of work and family.
While no plebiscitary elements are provided for in the Basic Law at the level of federal policy, they play a major role at the local level. Extensive regulations have been created in the local regulations of all Länder, some of them only in the recent past. Both the names and the requirements vary depending on the Land, but are comparable across the board. In addition to the voting right(s), the citizens of a local government are entitled to plebiscitary possibilities such as the citizens’ proposal (Bürgerantrag), the citizens’ assembly (Bürgerversammlung) and the citizens’ petition (Bürgerbegehren) aimed at the implementation of a referendum (Bürgerentscheid). With the citizens’ proposal, citizens can request that the local council deals with a specific matter while leaving its decision-making powers untouched. The citizens’ assembly cannot make a decision, it can only make proposals and give suggestions. Through the citizens’ petition, the citizens of a local government can request that they decide on a matter of the local community themselves instead of the local council. This gives them additional room for participation in terms of political organization. Nevertheless, the local council remains the guiding body of the representative democracy at the local level, which is why various requirements are placed on the admissibility of a citizens’ petition and large areas of local policy are excluded from the citizens’ petition (or referendum). If the local council declares the citizens’ petition admissible, the content of the question must be engaged with. In a local council meeting it is therefore necessary to decide whether the content of the citizens’ petition should be complied with. If the local council makes this decision, a referendum will not take place and the further legal situation results from the relevant local council decision. If the council does not comply with the admissible citizens’ petition, a referendum must be made within a certain period.
Burgi M and Wolff D, ´Repräsentative und plebiszitäre Demokratie auf Kommunalebene: Ordnungsbedarf im Konkurrenzverhältnis´ (2021) NdsVBl 65
Meyer H, ‘Kommunalwahlrecht’ in Thomas Mann and Günter Püttner (eds), Handbuch der kommunalen Wissenschaft und Praxis, Band 1: Grundlagen und Kommunalverfassung (3rd edn, Springer 2007)
Thum C, ‘20 Jahre Bürgerbegehren und Bürgerentscheid in Bayern’ (2015) 146 Bayerische Verwaltungsblätter 653
 Comparative Bernd Grzeszick and Jochen Rauber, ‘Reformoptionen für die Sitzzuteilung in kommunalen Vertretungskörperschaften’ (2018) 149 BayVBl 577.
 Three out of four mayors in cities and towns with a size of 2,000 or more exercise their office full-time. 25% are honorary mayors. However, due to the widely differing regulations and exceptions to differentiate between full-time and – if at all provided – voluntary work in the individual Länder, in-depth analyzes are not possible and that’s why there are no reliable numbers existing.