Concept and Legal Classification of the City Council
Die City Council is a central body of municipal self-government in many German federal states and, in its function, corresponds to the municipal council or city council. It is the democratically legitimized representation of the residents of a city and, together with the chief administrative officer, often the mayor or lord mayor, exercises management and supervisory functions at the municipal level. Its exact structure, powers, and designation vary among the federal states within the framework of municipal self-government, the foundations of which are regulated in the German Basic Law (Art. 28 (2) GG) and the respective municipal constitutions.
Historical Development
The institution of the City Council developed out of the historical city communities of the Middle Ages, where initially councils, elders, or citizenries assumed self-government. With the enactment of modern municipal codes in the German states in the 19th century, the elected council became established as a permanent body. The municipal constitutions of the federal states after 1945 redefined this body and, in some cases, differentiated in terms such as Magistrat, city council, municipal council, or specifically city council.
Legal Framework of the City Council
Legal Basis
The legal foundations of the city council essentially arise from:
- Basic Law (Art. 28 (2) GG: Guarantee of municipal self-government)
- Municipal constitutions of the individual federal states, including:
– Municipal Code (GemO)
– Municipal Constitution Acts (KVG)
– Municipal Election Acts (KWG)
- Main statutes of the respective city
In the respective municipal constitutions, the city council is designated as the supreme decision-making body, and its composition, function, and election procedures are regulated.
Composition and Election
The city council consists of representatives who are elected by the citizens of the city by general, equal, direct, secret, and free elections for a specified legislative period. The number of members depends on the number of inhabitants and is determined in the respective state legislation. Seats are allocated according to the principles of proportional representation or majority voting. The city council constitutes itself in a public session immediately after the electoral period.
Duties and Responsibilities
The city council is the main organ of municipal decision-making and is responsible for all matters of the city, insofar as these are not by law or main statute assigned to other bodies, particularly the mayor.
Key duties include among others:
- Enactment and amendment of the main statute as well as other municipal statutes and ordinances
- Decision-making on the city’s budget plan, statute, and city fees
- Oversight of the administration through enquiries, reporting, and file inspection
- Decisions on essential matters such as land-use planning, zoning plans, investment decisions, founding and participating in municipal enterprises
- Appointment, election, and removal of the mayor (depending on municipal constitution)
- Examination and acceptance of annual financial statements as well as discharge of the administration
The responsibilities of the city council are based on the so-called general competence principle, meaning it can generally decide on all matters of the city, unless specific organs or the administration are legally designated as competent.
Working Methods and Organization
Rules of Procedure and Committees
The city council adopts rules of procedure, in which the procedure for deliberation and resolution, the rights and duties of members, the organization of meetings, and the establishment of committees are regulated. Committees (e.g., for finance, urban development, education, environment) prepare decisions for the city council or are authorized to make final decisions in certain matters.
Decision-Making and Publicity
Resolutions are passed by majority vote. The meetings of the city council are usually public in accordance with the principles of the municipal constitution, in order to ensure transparency and democratic oversight. Exceptions to the public nature of meetings are only permitted if, for example, personal rights or legitimate interests of third parties are affected.
Rights and Duties of Members
Members of the city council are not bound by instructions and are only obligated to their conscience (principle of the free mandate). However, they are subject to the statutory provisions of municipal or city law, especially regarding compliance, conflicts of interest, and confidentiality obligations.
Relationship to Other Municipal Bodies
Mayor or Lord Mayor
Depending on the municipal code, either a so-called mayor model exists (the mayor chairs the city council) or a magistrate model (separate departments for administration and representation). The city council elects the mayor according to state law, or the mayor is elected directly by the residents. Cooperation is characterized by a system of separation of powers and mutual oversight.
Administration
The city council is authorized to issue instructions to the administration and supervises its activities. However, ongoing business is the responsibility of the mayor or the administration. The administration implements the resolutions of the city council in a legally binding manner.
Legal Protection and Oversight
Municipal Supervision
Decisions of the city council are subject to legal supervision by the competent municipal supervisory authority. Measures and resolutions that violate applicable law may be repealed or objected to.
Legal Remedies
Resolutions of the city council may be reviewed by residents and those affected via administrative court proceedings—particularly through constitutional municipal complaints or by means of petitions and referendums. Members of the city council may challenge resolutions with unlawful content by means of an objection procedure.
Particularities in the Federal States
The term “city council” is used in particular in the municipal constitutions of some northern German federal states (e.g., Mecklenburg-Western Pomerania, Schleswig-Holstein). While in other states terms such as “Stadtrat” (Bavaria, Saxony) or “Gemeindevertretung” (Hesse) are common, the function remains comparable.
Literature and Further Legal Sources
- Basic Law for the Federal Republic of Germany
- Municipal Codes and Constitutions of the Federal States
- Case Law on Municipal Law (particularly decisions of the administrative courts)
- Commentaries and textbooks on municipal law
Note: The city council provides the democratic foundation for municipal self-government, ensuring participatory decision-making and supervision of administrative action at the municipal level. Its legal structure follows the principles of the Basic Law and the respective state legislation.
Frequently Asked Questions
Who is entitled to participate in city council meetings?
In principle, all elected members of the city council are allowed to attend city council meetings; this concerns the female and male members of the city council in accordance with the respective municipal legal provisions, such as the municipal constitution of the relevant federal state. In individual cases, the mayor may also attend, unless he or she is not a member of the city council, but holds a right of participation ex officio. The meetings are usually public, which means that citizens and other interested parties can attend as listeners, unless it concerns a non-public (confidential) agenda item. In such cases, the city council usually resolves to exclude the public, for example in matters of data protection, tax confidentiality, or personnel issues. These provisions arise directly from the relevant municipal code or municipal constitution, which precisely regulate the rights and obligations related to participation. Additionally, experts, representatives of the administration, or invited guests may participate on invitation, if the subject matter requires it. Their presence is specified in the rules of procedure of the city council and may require a resolution to approve.
How is the quorum of the city council legally regulated?
The quorum of the city council is a key element to ensure that decisions are made on an adequate and legitimate basis. According to the provisions of the relevant municipal constitution or municipal code, a city council has a quorum if more than half of the statutory number of members are present, unless the main statute of the municipality stipulates otherwise. The determination of the quorum takes place at the beginning of the meeting and, upon request, also during the meeting. The chairperson determines attendance based on a roll call and announces the result. If, during a meeting, the quorum is lost—for example, due to members leaving—deliberations and resolutions must be suspended. Normally, the rules of procedure of the city council specify how to proceed, e.g., by re-checking after a short recess. Decisions made without a quorum are void; this can be determined subsequently as well, which can have significant legal consequences for measures taken.
Under what circumstances can a member of the city council be excluded from deliberation and voting?
The exclusion of a member of the city council from deliberation and voting, also known as a duty of recusal, is regulated in municipal law, particularly in the relevant municipal code. A member may not participate in deliberation and resolution if personally affected by the subject matter, that is, if there is a direct personal or economic interest (§ 22 GO NRW, comparable provisions in other federal states). This includes cases where the member, relatives, related persons, or companies represented by the member could gain an advantage or disadvantage from the decision. The obligation to declare a conflict of interest lies with the member; failure to declare may lead to a challenge of the resolutions adopted and disciplinary measures. The decision on exclusion is usually made by majority decision of the city council after hearing the affected member. Details are also specified in the rules of procedure.
What legal remedies are available against decisions of the city council?
Resolutions of the city council may be legally reviewed in several ways. First, it is possible to have resolutions examined by the municipal supervisory authority. This authority may intervene if a citizen alleges a violation of applicable law or if legal requirements have not been met. In addition, according to § 113 of the Administrative Court Rules (VwGO)—in connection with municipal law provisions—an action for annulment can be brought before the administrative court if a subjective public right has been infringed. Municipal actors, for example factions or individual members, may bring certain decisions before the relevant court as part of a municipal constitutional dispute. Citizens may, under the conditions of a referendum or citizen’s petition, influence or overturn resolutions, if legally permissible and submitted on time. The admissibility of each remedy depends on the nature of the resolution and the affected status of the challenging person or entity.
How is the public nature of city council meetings legally regulated?
The right of the public to attend meetings is a basic principle of municipal self-government and guaranteed by municipal codes. Accordingly, city council meetings are generally public (§ 48 GO NRW, corresponding provisions in other states), unless overriding public or protected private interests conflict with this. Non-publicity of a meeting or an agenda item must be justified and generally requires a resolution by the city council. Publicity means that anyone interested must be permitted entry, as long as spatial capacity allows. The publication of agendas and the right to inspect publicly accessible documents are supported by state information freedom and transparency laws. Violations of the publicity requirement can lead to the illegality or even nullity of resolutions.
What role do factions play and what is their legal status within the city council?
Factions are voluntary associations of at least two members of the city council who pursue a unified political direction. Their legal status is regulated both in the respective municipal code and in the city council’s rules of procedure. Factions have their own rights and obligations: they are entitled to appropriate financial, material, and personnel resources (faction contributions), may submit motions and enquiries, and participate in the composition of committees and bodies. Faction status is subject to minimum requirements specified in the rules of procedure, e.g., a minimum number of members. They play a central role in the formulation and communication of will between citizens and the city council body. Moreover, factions may bring lawsuits before the administrative court, for example in the event of violations of their rights to equal treatment or participation.
How are committees of the city council formed and what is their legal function?
Committees are formed by the city council to prepare its decisions or to make final decisions in certain matters. The legal basis for this is the respective municipal code, which stipulates that the city council may form standing or non-standing committees to allocate duties and improve case handling (§ 57 GO NRW, for example). The size, composition, and powers of the committees are set by the city council by statute or rules of procedure. Usually, the committees are composed in proportion to the strength of the factions to uphold the principle of majority rule and minority rights. Committees may be vested with their own decision-making powers (“decision-making committees”), otherwise they prepare resolutions for the main body (“preparatory committees”). Committee meetings are generally public, unless protected interests are opposed. The members are subject to the same recusal requirements as city council members.
What special provisions apply to the recording and publication of resolutions?
The preparation of minutes for meetings of the city council is legally required and serves as a key piece of evidence for the proper conduct of the meeting and the legality of the resolutions adopted. The requirements for documentation are governed by the relevant municipal code and the rules of procedure of the city council. The minutes must record, at a minimum, the names of the members present, the essential course of the deliberations, the precise wording of the resolutions passed as well as any special votes and voting results. As a rule, the minutes are signed by the chairperson. Resolutions that require public effect or have effects on third parties must be published accordingly, for example by posting, in official bulletins, or on the municipality’s digital platforms. Access to non-public resolutions is generally restricted to the members of the city council and the administration, in order to safeguard legitimate interests. Objections or challenges to the minutes must be raised within a specified period; after that, the minutes are deemed approved and constitute a binding document.
