Transferred sphere of competence: Legal foundations and significance
The term “transferred sphere of competence” plays a central role in German municipal law and refers to the area of administrative activity in which municipalities and districts handle public affairs on behalf of and according to the instructions of other governmental levels—especially the federal government or the respective federal state. The allocation of tasks to the transferred sphere of competence fundamentally differs from self-administrative tasks within their own sphere of competence. The following article details the legal foundations, practical consequences, and the demarcation from the own sphere of competence.
Legal framework and structure
Classification under municipal constitutional law
In the German municipal system, the distinction between own and transferred spheres of competence (§ 2 para. 2 Municipal Code, GO) is a central steering instrument to define the relationship between municipal self-administration and state-commissioned administration. While matters within their own sphere of competence are decided independently under the responsibility of the municipalities, in accordance with their constitutionally protected self-government rights, municipalities perform tasks in the transferred sphere on the basis of a statutory or subordinate legal mandate.
Statutory foundations
The transfer of the sphere of competence regularly occurs through federal or state laws (e.g., Art. 84, 85 Basic Law as well as state municipal or sectoral laws). Examples include registration procedures, the registry office system, or conducting elections. In these cases, the municipalities function as lower-level state administrative authorities.
Characteristics of the transferred sphere of competence
Definition and distinction
The transferred sphere of competence covers those tasks that are not assigned to a municipality for autonomous decision-making, but for execution according to legal and/or material instructions. In this context, the municipality is bound by regulations and directives from the respective competent state authorities and must carry out its tasks in accordance with laws, ordinances, and specific service instructions. Decision-making freedom is significantly restricted compared to the own sphere of competence.
Binding nature of instructions and supervision
In the transferred sphere of competence, there is a binding of instructions. Municipalities carry out state tasks as lower administrative authorities and are subject to technical supervision and, if applicable, disciplinary supervision by the higher authorities. This technical supervision extends to the lawful and appropriate execution of tasks, allowing instructions and direct orders from the supervisory authority. This stands in contrast to the legal supervision within the own sphere, which is limited exclusively to compliance with the law (legality).
Examples and typical tasks within the transferred sphere of competence
The classic areas of responsibility within the transferred sphere of competence include in particular:
- Registration and passport matters
Implementation of the Federal Registration Act and Passport Act in accordance with the relevant state-specific implementing provisions.
- Registry office tasks
Certification of births, marriages, and deaths on behalf of the state.
- Conducting elections
Organization and execution of European, federal, state, and local elections as well as referendums and citizens’ votes according to the requirements of election laws and regulations.
- Supreme disaster protection authority
Implementation of state disaster protection and civil defense measures at the local level.
Legal implications for organization and personnel
Organ status and instruction authority
In the context of their tasks in the transferred sphere of competence, the administrative bodies of the municipality, especially mayors or district administrators, are obliged to implement instructions from the supervisory authority, even against their own discretion. However, the functional and resource responsibility generally remains with the respective municipality, which must adhere to the legal and financial framework conditions.
Liability issues
For errors or breaches of duty in activities within the transferred sphere of competence, the primary liability rests with the state entity for whom the task is performed, in accordance with the rules of official liability (§ 839 BGB, Art. 34 Basic Law). This differs from liability within the own sphere of competence, where the municipality itself is directly liable.
Distinction: Transferred sphere of competence vs. own sphere of competence
The own sphere of competence encompasses all matters handled by the municipality in self-administration (e.g., municipal infrastructure, culture, voluntary services), while the transferred sphere is carried out exclusively under state or federal legal assignment and according to the instructions of the competent authorities. In individual cases, the distinction can be assessed based on the relevant legal foundations and legislative intent.
Significance for municipal self-government
The difference between the own and the transferred sphere of competence is essential for the principle of municipal self-government (Art. 28 para. 2 Basic Law). While tasks in the own sphere of competence strengthen local scope for decision-making and individual responsibility, the transferred sphere restricts these in favor of efficient and uniform implementation of governmental requirements. The correct allocation of tasks has significant consequences for municipal decision-making freedom, legal oversight, as well as for the financial and resource responsibility of municipalities.
Conclusion
The transferred sphere of competence is an important pillar of the German administrative federalism. This concept ensures that the efficiency and proximity of the municipal level are combined with the uniformity and binding nature of state administration. Detailed knowledge of the legal framework, instruction structures, as well as rules of supervision and liability are indispensable for effective and legally secure task fulfillment by municipalities.
Frequently asked questions
Who is responsible for the actions of a municipality within the transferred sphere of competence?
In the transferred sphere of competence, the municipality acts not by virtue of its own jurisdiction, but on behalf of the federal or state government. Nevertheless, legal responsibility for the performance of transferred tasks remains with the respective territorial authority (city, municipality, district). Municipalities are bound by instructions and must comply with the rules and instructions issued by the higher authority. In the event of a breach of duty, the municipality is generally liable for its employees. Direct responsibility of management personnel arises under the general official liability if they have violated their official duties. Factual supervision remains with the state authorities, who ensure proper implementation of laws and regulations through technical or legal supervision.
What role does technical supervision play in the transferred sphere of competence?
Technical supervision is a crucial control instrument of the state over municipalities within the transferred sphere of competence. It includes the right of the supervisory authority to review both the legality (legal supervision) and the expediency (technical supervision) of administrative actions. The supervisory authority can issue instructions regarding the execution of transferred tasks and order measures to correct errors. This ensures that municipalities fulfill the transferred state tasks in accordance with statutory requirements. Technical supervision extends to all aspects related to the execution of transferred tasks, including organization, procedures, and the deployment of personnel.
Are there differences in legal protection between tasks in the own and in the transferred sphere of competence?
Yes, legal protection differs significantly depending on the sphere of competence. In the own sphere of competence, the municipality can act relatively autonomously, while in the transferred sphere there is a close binding to state instructions and legal requirements. Citizens who believe their rights have been infringed by acts or omissions within the transferred sphere of competence can challenge the relevant administrative act directly. Judicial review is then generally directed against the municipality as the acting administrative organ, including whether state instructions have been properly followed. In certain cases, it may also be considered to involve the higher authority in legal protection, for example when contesting instruction-related decisions.
To what extent are municipalities bound by instructions in the transferred sphere of competence?
Municipalities are generally bound by instructions in matters of the transferred sphere of competence. This means that in carrying out tasks delegated to them by the federal or state government, they must comply with the relevant legal regulations, ordinances, and administrative rules. The competent state authorities are authorized to issue binding individual and general instructions to ensure the implementation of transferred tasks in accordance with the legislature. Disregarding such instructions can result in supervisory measures or compulsory enforcement. In extreme cases, disciplinary proceedings can also be initiated against the responsible officials or employees.
What are typical examples of tasks in the transferred sphere of competence?
Typical tasks in the transferred sphere of competence include, for example, the execution of state elections and referendums, registration and passport matters, duties of the registry offices, food inspection, road traffic authorities, and law enforcement under police law. All these tasks have in common that they are enshrined in law and are not delegated to municipalities or local authorities for autonomous decision-making, but are assigned to them for implementation according to established state regulations. In practice, this means that the municipality is the “extended arm” of the state and has no independent powers of legal policy shaping, but acts according to uniform standards.
Who bears the costs of fulfilling tasks in the transferred sphere of competence?
Cost allocation for the performance of transferred tasks is regulated in the municipal constitutions and special laws. As a rule, it is specified that municipalities and districts should receive compensation for the costs incurred in fulfilling state tasks within the transferred sphere of competence. The details are governed by each state law, and there are often special cost reimbursement provisions. Nevertheless, there are ongoing disputes over the amount and appropriateness of the reimbursements, which is a perennial political issue, especially regarding costly administrative measures. The controversy also concerns issues of financial resources and the guarantee of municipal self-government under Art. 28 Basic Law.
How is the legality of municipal actions controlled in the transferred sphere of competence?
Supervision of the legality of municipal actions within the transferred sphere of competence occurs in two stages: Firstly, it is the responsibility of the respective supervisory authority at state or federal level to review and control whether the municipalities comply with statutory requirements when carrying out state tasks. If deficiencies are identified, corrective orders, instructions, or—in serious cases—enforced performance can be ordered. Furthermore, administrative courts also have the authority to review decisions or measures of the municipality upon application. Crucially, appeals must regularly be lodged against the municipality acting as the executive authority within the transferred sphere of competence. The technical supervision of the federal states thus complements judicial review.
