Concept and Fundamentals of Indirect State Administration
Die indirect state administration is a central concept in German administrative law and refers to a form of state administration in which state tasks are performed by legally independent legal entities outside of direct state administration. In contrast to direct state administration, in which the state acts through its own authorities and administrative bodies, in the context of indirect state administration it uses its own, but organizationally and legally independent administrative units, in particular corporations, institutions, and foundations under public law.
Systematics and Distinction from Direct State Administration
The distinction between direct and indirect state administration is essential for understanding the German administrative system. While direct administration is characterized by federal or state authorities in both organizational and functional proximity to the state, in indirect administration the fulfillment of state tasks is in the hands of autonomous administrative bodies entrusted with specific public responsibilities.
Direct State Administration
Direct state administration involves the classic administrative activities performed by offices, ministries, and other authorities, which are integrated organizationally into the state’s hierarchy and whose personnel are generally employed as civil servants.
Indirect State Administration
In indirect state administration, independent legal entities under public law perform public functions. These entities act in their own name and are usually only subject to state supervision, but possess their own organizational, personnel, and financial sovereignty.
Legal Basis and Statutory Regulations
The legal structure of indirect state administration finds its foundation in the Basic Law (especially Art. 28(2) GG for municipal self-government) as well as in special statutory regulations, such as in the Administrative Procedure Act (VwVfG) and the administrative procedure acts of the federal states.
Constitutional Requirements
With the principle of federalism and municipal self-government (Art. 28 GG), the Basic Law recognizes the existence and organizational principle of indirect administrative bodies. These legal entities perform public tasks within their own sphere of responsibility and are subject to state legal supervision.
Special Statutory Regulations
A multitude of task transfers to corporations (e.g., chambers of industry and commerce, chambers of crafts), institutions (e.g., broadcasting institutions), or foundations under public law can be found in the federal or state-specific statutes. These laws establish, in particular, the organizational form, area of responsibility, supervision, and selection of personnel.
Forms of Indirect State Administration
Corporations under Public Law
Corporations under public law, such as municipalities, counties, chambers of industry and commerce, or professional associations, enjoy autonomy in forming their own will and are entitled to self-administration. They are organized along membership lines and exercise sovereign powers, for example through statutes or fee schedules.
Institutions under Public Law
Institutions under public law, such as public broadcasting organizations or social security carriers, provide public services for the general public and typically have a cooperative-like organizational model.
Foundations under Public Law
Foundations under public law are endowed with assets on a permanent basis for specific purposes. They pursue public objectives and are strongly bound in their organization by the foundation deed and the assigned foundation purpose.
Supervision, Steering, and State Control
Indirect state administration is always subject to state supervision. A distinction is made between technical supervision and legal supervision:
- Legal supervision: Review of the legality of the actions of the administrative body. Interventions are only possible in case of violations of the law.
- Technical supervision: In addition to legal control, this also includes supervision regarding expediency, but it is only exercised where tasks are delegated by the state and not in the area of self-administration.
The type and intensity of supervision depend on the legal basis and the nature of the transferred tasks.
Delegation of Tasks and Forms of Action
Delegation of sovereign functions
A central function of indirect state administration is the transfer of state duties to independent administrative bodies. This serves to relieve state agencies, promote citizen proximity as well as participation, and ensure appropriate task fulfillment by specialized organizations.
Forms of Action by Administrative Bodies
The administrative bodies of the indirect state administration generally act in public legal forms, particularly by issuing statutes, administrative acts, or in the performance of service functions.
Significance and Functions of Indirect State Administration
Indirect state administration plays a central role, particularly in the German administrative system. Its advantages lie in decentralization, proximity to citizens, professional competence, and the ability to execute specific public duties effectively and efficiently.
Self-administration vs. State Supervision
The balance between independent performance of functions and state supervision is a central characteristic of indirect state administration. On one hand, it guarantees the independence of the administrative bodies; on the other, it ensures compliance with state objectives and legal standards.
Distinction from Privatization and Other Forms of Administration
Whereas in indirect state administration tasks are carried out by public, independent organizations, in the context of privatization, state functions are transferred to private law enterprises. This is to be distinguished from indirect state administration since, in privatization, private law entities act on behalf of the state, often without sovereign powers.
Case Law and Practical Examples
In case law, for example from the Federal Administrative Court and the Federal Constitutional Court, the tasks, competences, and limitations of indirect state administration are continuously specified. In practice, indirect state administration is found in municipal administration, higher education, and chamber organizations.
References and Weblinks
For in-depth study, the relevant specialist literature and further legal texts, such as the Basic Law, the Administrative Procedure Act, and the state administrative acts, are recommended.
This article provides a comprehensive overview of the legal basis, organizational forms, and functions of indirect state administration in the German administrative system and thus serves as an extensive encyclopedic entry for this central concept of administrative law.
Frequently Asked Questions
What are the key legal bases for indirect state administration?
The essential legal bases of indirect state administration are primarily derived from the Basic Law, the respective state constitutions, and pertinent special statutes. In the Basic Law, Art. 28(2) GG, which guarantees the right to local self-government, is a central point of reference, as municipalities and municipal associations in particular are carriers of indirect state administration. In addition, special statutory regulations, such as the Administrative Procedure Act (VwVfG) and the municipal laws of the states, are key. These regulate in detail the delegation of tasks, supervision, and organization. Furthermore, many specialized statutes, e.g., the Social Code or the Federal Building Code, contain special provisions concerning the execution of state tasks by legal entities under public law. Overall, indirect state administration is legally shaped by the interplay of higher and subordinate norms, with the relationship between state legal supervision and local self-government forming a central legal area of tension.
How is the delegation of state responsibilities to legal entities carried out in the context of indirect state administration?
The delegation of state functions within indirect state administration takes place either by operation of law (i.e., directly by legal mandate) or through a legal act (such as an administrative act or a public law contract). Often, the transfer of functions is accompanied by the recognition or appointment of the relevant legal entity, such as with chambers, foundations, and institutions. Typically, municipalities, churches, universities, or other corporations are entrusted by statute with specific tasks. When delegating, it must be ensured that the state’s right of instruction, known as state supervision, remains upheld so that the state does not ultimately lose responsibility for the implementation of public functions. Responsibilities, procedures, and supervisory powers are clearly regulated to ensure lawful and appropriate administration.
What is the difference between state legal supervision and technical supervision in the context of indirect state administration?
Within the system of indirect state administration, it is of significant importance to distinguish between state legal supervision and technical supervision. Legal supervision is limited to monitoring the legality of the administrative activities of the entrusted legal entities, i.e., whether statutory provisions are observed. It generally does not allow review or control regarding the political or substantive expediency of administrative actions. Technical supervision, by contrast, also includes the control and authority of giving instructions as to the substantive appropriateness, efficiency, and expediency of administrative activity. The degree of supervision depends on the extent of granted autonomy and is particularly important in the tension between administrative oversight and self-administration rights.
What role do the guarantees of municipal self-administration play in indirect state administration?
The guarantee of municipal self-administration, as specified particularly in Art. 28(2) GG, protects the organizational and functional autonomy of municipalities and municipal associations within indirect state administration. It ensures that these legal entities retain their own area of responsibility in administration, finance, and local legislation. State intervention, especially in the form of supervisory instructions, is therefore only permissible within the scope prescribed by law and with respect for the core area of self-administration. Interventions in municipal performance of tasks regularly require a statutory basis and must comply with the principle of proportionality. Thus, municipal self-government represents a constitutionally protected limit on state influence within indirect state administration.
To what extent is the state liable for breaches of duty within the framework of indirect state administration?
Within the framework of indirect state administration, the issue of liability is complex and depends on the respective sovereign body and the type of transferred duties. Generally, the respective legal entity (municipality, chamber, institution, etc.) is liable for unlawful administrative actions of its organs under § 839 BGB in conjunction with Art. 34 GG, as it is the body responsible for the public task. Direct state liability (federal or state) only arises if a right of instruction has been exercised or state supervision has been implemented unlawfully, resulting in damage. Immediate liability of the state exists only by way of exception in so-called state instruction matters, in which the autonomous decision-making power of the legal entity is largely excluded.
Which legal entities under public law are typical carriers of indirect state administration?
The typical carriers of indirect state administration include, in particular, territorial authorities (such as municipalities, counties, and district-free cities), personnel and association corporations (e.g., chambers of industry and commerce, chambers of crafts, medical associations), institutions and foundations under public law (e.g., public broadcasters, universities, public foundations). These corporations perform public administrative tasks independently, but under state supervision. Organizational structures and the degree of independence vary depending on the statutory framework and the nature of the assignation.
How does indirect state administration differ from the fulfillment of tasks under private law by administrative assistants?
In contrast to indirect state administration, where legal entities under public law perform sovereign duties in their own name and under state supervision, the fulfillment of tasks under private law by administrative assistants (e.g., private companies or individuals) is conducted through delegation or as administrative assistants without delegation. Administrative assistants are not themselves administrative bodies but support the state without exercising sovereign powers; however, in delegation, they receive sovereign powers themselves. In the case of administrative assistants, supervision and liability are usually more strictly focused on the state, while the carriers of indirect state administration possess their own responsibility toward third parties.
