Concept and Fundamentals of Administrative Competence
In German law, administrative competence refers to the legally established authority of a specific territorial corporation or authority to perform administrative law tasks. It is part of the division of powers within the federal system and concerns the question of which state body is authorized to prepare, decide on, and implement administrative matters. Administrative competence differs from legislative and judicial competence, as it pertains to the executive branch.
Constitutional Foundations of Administrative Competence
Administrative Competence in the Basic Law
In the Basic Law for the Federal Republic of Germany (GG), particularly Articles 83 et seq. GG govern state administration and determine the allocation of administrative competence between the Federation, the Länder (states), and the municipalities. As a rule, the Länder administer federal laws as their own matters except where the Basic Law provides otherwise (Art. 83 GG).
Administration by the Federation
In certain cases, the Federation itself exercises administrative competence, for example through federal administrative authorities (Art. 86 GG) or in areas of direct federal administration (e.g., Federal Police, federal agencies).
Administration by the Länder on behalf of the Federation
The Basic Law provides for the possibility that the Länder execute federal laws as matters commissioned by the Federation (Art. 85 GG). In this case, the administrative competence effectively remains with the Länder, but they act within the organizational and legal framework of the Federation.
Municipal Administrative Competence
The municipalities have the right to self-government according to Art. 28 GG and thus hold independent administrative competence, especially in areas of public services and local self-administration.
Separation and Unified Administration
In Germany, administrative competence is structured by the principle of separation administration (Federation and Länder have their own authorities) and unified administration (Länder also act for the Federation). The respective forms are constitutionally anchored.
Types and Forms of Administrative Competence
Subject-matter, Territorial, and Instanced Administrative Competence
- Subject-matter Administrative Competence defines which authority is responsible for certain tasks (e.g., environmental administration, building supervision).
- Territorial Administrative Competence regulates the local jurisdiction area (e.g., at municipal, district, state, or federal level).
- Instanced Administrative Competence concerns the structure of the administrative organization (e.g., lower, upper, supreme administrative authorities).
Administrative Competence under Union Law
In addition to national regulations, Union law, especially the case law of the European Court of Justice and the provisions of the European Union, may assign tasks to Member States for national implementation (“implementation administration”). As a rule, the practical execution (implementation of EU law) remains with the respective nation states.
Statutory Provisions on Administrative Competence
Administrative Competence in the Federal State
Legislative vs. Administrative Competence
The competence for administration must be strictly distinguished from the competence for legislation. While legislative competence determines which legislator may enact laws, administrative competence defines which authority or Länder enforce legislative requirements.
Federal Execution
Pursuant to Articles 84 et seq. GG, various forms of administration exist:
- Execution by the Länder as their own matters (as a rule),
- Federal administration on commission,
- Federal administration by federal authorities.
Administrative Competence in State Administration
Within the state administration, the division of competence is governed by the respective state constitutions and implementing laws, with coordination by our federal laws to be ensured.
Administrative Competence at the Municipal Level
Municipal administrative competences include:
- Mandatory tasks: legally prescribed tasks that must be fulfilled.
- Voluntary tasks: tasks that are at the discretion of the municipalities.
Advisory, supervisory, and exercising administrative competences are anchored at the municipal level and are structured by specialized statutes and state laws.
Administrative Competence outside the Federal State
Administrative competence may also be transferred to international organizations, public law corporations, or institutions, provided this is permitted by national law.
Distinctions and Special Forms
Distinction from Other Competences
Administrative competence must be clearly distinguished from:
- Legislative competences (legislature)
- Judicial competence (judicature)
- Organizational competence (right to create and structure authorities)
Delegation and Transfer of Administrative Competence
Under certain conditions, administrative competences can be delegated by law or ordinance, or transferred to other authorities. In this context, the requirements of the constitution and the principles of state organizational law must be particularly observed.
Participation and Right to Issue Instructions
When exercising administrative competence, rights to issue instructions (professional supervision, supervisory authority) are relevant, as they permit the management and oversight of the execution and performance of administrative matters.
Significance and Practical Relevance of Administrative Competence
Legal Protection in Cases of Competence Conflicts
In cases of exceeding competence or unclear jurisdiction, those affected may seek legal recourse. Frequently, competence disputes or constitutional disputes before the Federal Constitutional Court serve to clarify the scope of administrative competency.
Significance for Administration
Precisely determining administrative competence is fundamental for the lawfulness of administrative actions. Actions taken beyond the established competence are generally void and can be challenged by legal remedies.
Summary
Administrative competence is a central element of organizational administrative law and German federalism. It determines which authority at which level is authorized and obligated to fulfill public tasks. The precise assignment of administrative competence is made according to constitutional and statutory provisions and is essential for orderly and effective public administration. Disputes over administrative competence are resolved by specialized courts.
Literature and Further Sources
- Basic Law for the Federal Republic of Germany, especially Articles 83 et seq.
- BVerfGE – Decisions of the Federal Constitutional Court (various rulings on competence distribution)
- Sachs, Basic Law, Commentary
- Kopp/Ramsauer, Commentary on the Administrative Procedure Act
- Maurer/Waldhoff, General Administrative Law
Frequently Asked Questions
What legal foundations govern administrative competence in Germany?
Administrative competence is primarily regulated in German law by the Basic Law (in particular, Articles 83 to 91 GG). It distinguishes between federal and state administration and their respective competences. For specific matters such as federal taxes or defense, the Basic Law provides for special provisions specifying which bodies hold administrative competence. Further detailed rules can be found in the respective specialized statutes (e.g., Building Code, Federal Immission Control Act). The allocation of competences is guided by the principle of federalism and subsidiary jurisdiction, with determinations in cases of doubt being made by interpreting the law and, where necessary, by court decisions (especially those of the Federal Constitutional Court) to define which administrative level is responsible.
How is the division of administrative competence between the Federation and the Länder determined?
The division of administrative competence between the Federation and the Länder is primarily determined by the competence order set out in the Basic Law. As a general rule, the Länder are responsible for the execution of laws (Art. 83 GG), unless the Basic Law expressly assigns competence to the Federation or federal administration. Central to this is the distinction between federal, state, and joint tasks (Art. 91a GG). Special rules, for example regarding federal administration by commission (Art. 85 GG) or federal administration by federal authorities (Art. 86 GG), provide concrete arrangements regarding jurisdiction. If uncertainty arises over administrative competence, the relevant constitutional provisions must be interpreted in light of their purpose and intention.
What are the legal consequences of an unlawful assumption of administrative competence?
If an administrative competence is exercised by an authority not legally authorized for this purpose, it generally acts ultra vires (i.e., outside its jurisdiction). This results in the administrative acts or measures it issues being fundamentally unlawful and subject to challenge. Those affected can challenge such acts, for example by lodging an objection or filing a lawsuit with the administrative court. Continued overstepping may result in a competence challenge and a determination of unconstitutionality. Strict adherence to administrative competence is essential for the rule of law and the democratic legitimacy of state action.
What role do administrative competences play in the federal system?
In the federal system, the clear assignment of administrative competences is a central instrument of control and oversight. It serves to delineate responsibilities between the Federation, the Länder, and the municipalities and to ensure efficient and legally secure execution of the law. Through administrative competences, potential for conflict is reduced by clearly distributing tasks and precisely regulating responsibilities. The respective levels can thus autonomously issue administrative acts within the scope of their competence. In the event of overlaps or competence disputes, these are generally resolved before the Federal Constitutional Court.
How are administrative competences determined in cross-border administrative matters?
In cross-border administrative matters, such as within the European Union, administrative competences are determined by a combination of Union law and national constitutional law. The implementation of EU directives is generally carried out by the Member States within the scope of their administrative responsibility. The German Basic Law provides that the Länder are responsible unless otherwise specified. In individual cases, the Federation may, by law or regulation, take over administrative competence, for example to ensure uniform application of the law throughout the federal territory (Art. 84(1) GG). Issues of administrative assistance and mutual administrative access can be problematic and are regulated by special legal acts or agreements.
Under what conditions is delegation of administrative competence permissible?
Delegation of administrative competence is generally only possible if there is an explicit legal basis for it. The principle of delegation states that competences may only be transferred if the respective law expressly provides for it (e.g., by empowerment under § 1(1) VwVfG or delegation by statutory regulation). If such statutory authority is lacking, delegation is impermissible and administrative action is unlawful. In delegating, the principles of legality of administration and the reservation of the law must be observed. The delegated body typically assumes legal responsibility within the delegated scope of competence.
How is defective administrative competence asserted in administrative proceedings?
In administrative proceedings, defective administrative competence can be asserted through objections and legal remedies such as an objection or legal action. The decisive factor is whether the competent authority conducted the procedure. If this defect is objected to in a timely manner during administrative proceedings, the authority is obliged to review the question of competence and, if necessary, refer the matter to the correct authority (§ 3a VwVfG). In legal proceedings, the administrative court examines the issue of administrative competence ex officio. If the court determines a lack of competence, it may annul the contested administrative acts and refer the matter to the competent authority. Compliance with administrative competence is therefore both a procedural and substantive requirement for any administrative action.
