Definition and Fundamentals of Third-Party Administration (indirect state administration)
Die Third-Party Administration (indirect state administration) is a central term in German administrative law and refers to an organizational form in which public administrative tasks are not carried out directly by state authorities, but instead by legally independent administrative bodies outside of the immediate state administration. Third-party administration thus contrasts with autonomous administration (direct state administration), in which state tasks are fulfilled by the organs of the state itself (such as federal or state authorities).
With the help of third-party administration, state tasks are performed by external public law bodies such as municipalities, districts, corporations, institutions, or foundations under public law. These administrative bodies are subject to supervision and control by higher-level state authorities within the framework of indirect state administration.
Terminological Classification and Distinction
Distinction between third-party administration and autonomous administration
The classical classification of German administrative organization distinguishes between direct state administration und indirect state administration (third-party administration). While the former refers to authorities that are part of the organizational structure of the state (federal, state), the indirect state administration is characterized by the fact that administrative bodies are organizationally independent from the immediate state apparatus but are involved in the execution of state tasks.
Clarification of Terms: Third-Party Administration versus Self-Administration
Third-party administration must be distinguished from self-administration, where administrative bodies perform tasks on their own responsibility. In third-party administration, tasks are also carried out by independent administrative entities, but they act on behalf of and under the supervision of the state.
Legal Foundations of Third-Party Administration
Constitutional Framework
The legal foundations of third-party administration are found in the Basic Law (Grundgesetz, GG), in particular in the regulations concerning the organization and performance of tasks by the Federation, the states, and municipal bodies. Central provisions include, for example, Article 28(2) GG, which stipulates the guarantee of municipal self-administration, and Article 83 et seq. GG, which regulate the implementation of federal laws by the states.
In addition, provisions concerning the form of third-party administration arise from ordinary laws such as the municipal codes of the states, administrative procedural laws, as well as special statutory regulations for the establishment of corporations, institutions, or foundations under public law.
Status as Administrative Body
The administrative bodies of indirect state administration typically include:
- corporations under public law (e.g. municipalities, districts, chambers)
- institutions under public law (e.g. broadcasting institutions, universities)
- foundations under public law (e.g. university foundations)
They have their own organs and are assigned administrative tasks. Their decisions are binding on external parties and concern matters of public interest.
Organization and Structure of Third-Party Administration
Delegation of Tasks and Jurisdiction
The delegation of tasks to entities of indirect state administration occurs through law, ordinance, or statute. Jurisdiction and procedural rules are conclusively regulated in the relevant legal provisions. As a rule, the administrative body retains a scope of discretion or assessment within the limits of the law.
Relationship to the State and Government Supervision
The organization of third-party administration is characterized by a hierarchical relationship between the state and the administrative body. Within the framework of legal supervision it is monitored whether the delegated tasks are performed in accordance with the law. In the case of technical supervision, the appropriateness of administrative actions can also be reviewed. The precise form of supervision is defined by law and can range from pure legal supervision to intensive technical supervision.
Essential Forms of Third-Party Administration
Municipal Self-Administration
Municipal self-administration under Article 28 GG is the most significant form of indirect state administration. Municipalities, towns, and districts perform tasks within their own and delegated spheres. In the delegated sphere, they execute state tasks through third-party administration.
Corporations, Institutions, and Foundations
- corporations under public law (for example, chambers of commerce and industry, medical chambers) are based on the principle of membership or residence.
- institutions under public law (e.g. state broadcasting institutions, savings banks) are designed to serve specific purposes.
- foundations under public law have a dedicated asset to fulfill a lasting purpose.
All of the organizations listed above can serve as third-party administrative bodies, provided they are established for the execution of state functions.
Legal Particularities and Limits of Third-Party Administration
Binding Instructions and Autonomous Responsibility
The essential legal particularity of third-party administration lies in the binding instructions of the administrative body towards the state. Within contractually stipulated or legally defined powers, bodies may act on their own responsibility, but are subject to state instructions where required by law. Balancing the autonomy of the entity and state control is a central issue.
Responsibility and Legal Protection
Actions by third-party administrative bodies are exercises of sovereign authority. They are subject to judicial review by the administrative courts. Legal protection against measures of third-party administration is governed by the general rules of administrative procedural law, particularly the Administrative Court Code (VwGO).
Liability
Liability within the scope of third-party administration is governed by the provisions of public law. As a rule, the administrative body is liable for damages arising from unlawful acts of authority according to the relevant provisions of state liability law.
Significance and Function of Third-Party Administration in the Administrative System
Efficiency and Citizen Proximity
Third-party administration helps to fulfill state tasks in a decentralized, efficient, and citizen-oriented manner. Administrative bodies are generally closer to the citizen than immediate state authorities and can take local circumstances into better account.
Function in Federalism
By interposing administrative bodies, the division of tasks between the Federation, the states, and the municipalities becomes more flexible. Indirect state administration serves as an organizational link between state responsibility for tasks and their implementation at the local level.
Summary
Third-party administration (indirect state administration) is a fundamental term of administrative law and state organization in Germany. It refers to the delegation of public tasks to autonomous administrative bodies outside the immediate state apparatus, while retaining state control and supervision. The legal frameworks, responsibilities, and the various forms make indirect state administration an important element of the state organization and contribute significantly to the functionality, efficiency, and citizen proximity of public administration.
Frequently Asked Questions
What legal foundations govern third-party administration in Germany?
The legal basis of third-party administration in Germany can be found in the Basic Law (in particular Articles 83 et seq. GG), the administrative procedure laws of the federal government and the states, as well as numerous special statutes. Article 83 GG stipulates that the states generally implement federal laws as their own matters, while Article 85 GG allows for the possibility of execution as delegated administration (indirect state administration). In addition, special statutory provisions, such as SGB X for social administration or the VwVfG, regulate the procedures and responsibilities of the authorities involved in third-party administration. These laws set out the specific arrangements for supervisory rights, technical supervision, and financing between the Federation, states, and municipalities. Further, third-party administration is specifically regulated under state law, which defines the organization and involvement of non-state administrative bodies (e.g. ‘Beliehene’, legal persons under private law on behalf of the state) in greater detail.
To what extent are entities of indirect state administration subject to government supervision?
Entities of indirect state administration, such as corporations, institutions, or foundations under public law, are generally subject to government supervision by the respective competent ministries. The form of supervision ranges from legal supervision (review of the legality of actions) to technical supervision (review also of the expediency and appropriateness of decisions)—the latter especially in delegated matters. The type and scope of supervision are typically set out in the relevant sectoral law. A typical example is municipal self-administration, where municipalities are subject to so-called municipal supervision, which can monitor actions within the framework of the law and for securing the public interest. For ‘Beliehene’, supervision is often even more extensive and may include directive powers up to direct execution by the supervising authority.
What role does binding instruction play in third-party administration?
Binding instruction is a central element of third-party administration and largely determines the degree of state influence over task execution. A distinction is usually made between mandatory tasks to be performed under instruction (e.g. certain municipal tasks such as conducting elections or maintaining the population register) and tasks performed under one’s own responsibility (so-called self-administration matters). For tasks performed under instruction, higher-level state bodies may issue specific directions, orders, and even detailed requirements for individual cases. This binding serves to ensure uniformity in administrative practice and to safeguard overriding interests—particularly those of the Federation when it comes to state administration. As such, binding instruction serves as the gateway for direct government influence on the organizational and technical activities of third-party administrative entities.
What legal remedies are available to those affected by measures of third-party administrative bodies?
Persons whose rights or interests are affected by measures of entities within indirect state administration may generally use the same legal remedies as in the case of immediate state administration. These include, in particular, the objection and the action for annulment pursuant to § 68 et seq. VwGO. A particularity of third-party administration is often that the administrative acts are issued by a separate legal entity under public law, but legal oversight and, if necessary, annulment or amendment may be carried out by state supervisory authorities. Depending on the structure, this may lead to additional procedural steps or the involvement of the competent supervisory authority. Administrative courts also have jurisdiction over the organs of third-party administration, thus ensuring effective judicial review.
How does liability arise for faulty administrative action within indirect state administration?
For faulty administrative actions within the framework of indirect state administration, the respective administrative body is generally liable; that is, for example, the municipality, corporation, or institution acting as a legal person under public law (§ 839 BGB in conjunction with Article 34 GG). If their organs or employees culpably breach an official duty entrusted to them, those harmed may assert corresponding claims directly against the administrative body. In certain cases, the Federation or the state may be held liable, particularly if they have given instructions or acted in special matters of delegated administration. The personal liability of the individual official, however—as in general state liability law—is limited to intent and gross negligence and will generally be assumed by the state.
What particularities apply to the cooperation between different administrative bodies within indirect state administration?
The cooperation between various administrative bodies within the framework of indirect state administration is characterized by numerous obligations of cooperation, coordination, and information-sharing. There are often specially regulated forms of cooperation, such as special-purpose associations in the municipal sector, administrative communities, public law agreements (§ 1 IV VwVfG), but also mixed forms including elements of private law. The legal basis is usually found in sectoral laws or in the state administrative procedural law. The principle of legality of administration always applies, meaning that cooperation is only permissible within the scope of statutory assignments. Exceeding powers, dual exercise of functions, or unauthorized delegation of tasks are prohibited and may lead to the unlawfulness of administrative actions, which can be reviewed by the courts.
What changes and reform efforts exist in the area of indirect state administration?
Indirect state administration is subject to ongoing reform discussions, including topics such as modernization, increased efficiency, digitalization, and greater involvement of private actors (public-private partnerships). Strengthening the self-responsibility of administrative bodies, improving transparency, and reducing duplicate structures are also frequently discussed. The relationship between the Federation, states, and municipalities, particularly regarding the allocation of tasks and financial resources, is regularly a subject for reform. The influence of European legal requirements further leads to adjustments in the delegation of public tasks to private third parties (e.g. procurement law), so that indirect state administration is continually being adapted to new general conditions. Current legislative amendments and administrative reforms especially address digitalization and debureaucratization in the interplay between different administrative bodies.
