Concept and Legal Framework of Legal Supervision
Legal supervision represents a central control instrument in public administration and administrative law. It refers to the state’s oversight of legal actions carried out by subordinate authorities, corporations, institutions, or foundations under public law. The aim of legal supervision is to ensure the lawfulness and compliance with the law in administrative actions. The control powers of legal supervision differ from those of technical supervision, whose powers extend further to include not only the lawfulness but also the expediency and appropriateness of administrative actions.
Legal Bases of Legal Supervision
General Principles
Legal supervision is regulated in various legal sources. Its foundations can regularly be found in the constitutions of the federal states, municipal and local constitutions, as well as in subject-specific laws enacted on the federal and state level. On the federal level, legal supervision may be derived, for example, from Art. 84(3) of the Basic Law (GG), which grants the federal government legal supervision in cases where federal laws are executed by the states in their own name.
Legal Supervision within the Administrative Structure
In German law, legal supervision typically refers to the relationship between immediately state or municipal sovereign authorities of differing hierarchical levels. Typical situations exist, for example, between supervising state authorities and municipalities or municipal associations, as well as between superior administrative authorities and certain self-governing entities.
Content and Scope of Legal Supervision
Object of Legal Supervision
Legal supervision is limited to the control of lawfulness regarding actions or omissions by administrative authorities. It includes monitoring whether subordinate bodies comply with applicable laws, regulations, and statutes. The control extends, for example, to resolutions, enactment of statutes, administrative decisions, and, depending on the provision, also to special purpose associations or public law enterprises.
Distinction from Technical Supervision
Legal supervision is to be distinguished from the broader technical supervision. Whereas legal supervision relates exclusively to compliance with laws, ordinances, and statutes, technical supervision also covers reviews of expediency, efficiency, and political objectives. The intervention powers of legal supervision are thus narrower than those of technical supervision.
Instruments and Means of Legal Supervision
Supervisory authorities have a variety of means at their disposal to exercise their duties:
- Right to Request Information: The supervisory authority may demand submission of files, information, and reports from the supervised entity.
- Right to Raise Objections: It may object to erroneous or unlawful measures.
- Power to Issue Orders: In certain cases, the authority may issue its own orders to establish lawful conditions or exercise substitute enforcement.
- Sanctioning Options: In cases of serious or persistent violations of the law, further measures may be taken, such as instructions, suspension of resolutions, or even dissolution of the corporation; however, such actions are further regulated by specific statutory provisions.
Areas of Application for Legal Supervision
Legal Supervision in Municipal Law
Legal supervision over public law self-governing entities, in particular over municipalities, districts, and municipal associations, is highly differentiated in Germany by law. It includes, among other things, the review of budgets, the approval of statutes, contracts, and certain financial decisions. The respective local constitutions (e.g., municipal code, district regulations) contain detailed provisions on this.Examples of Municipal Legal Supervision:
- Control of the legality of municipal council resolutions
- Supervision of budget management and borrowing
- Approval of municipal statutes and their compatibility with higher-ranking law
Legal Supervision by Subject Area and in Associations
Legal supervision also plays an important role in various other areas of law. Examples include:
- School Law: Legal supervision over schools by responsible school authorities
- Chambers and Associations: Supervision of professional bodies (e.g. chambers of crafts, chambers of industry and commerce)
- Social Law: Supervision over social insurance providers or benefit authorities
Legal Supervision in the Federal System
According to Art. 84(3) GG, there is a special form of legal supervision within the federal structure between the federal government and the states. If a state executes federal laws in its own responsibility, the federal government exercises legal supervision, which covers only the lawfulness, not the expediency, of execution.
Procedures of Legal Supervision
Process and Forms
A typical supervisory procedure begins with the awareness of possible breaches of the law, either on the authority’s own initiative (supervisory self-control mechanism) or following a notice from third parties (e.g., objections, complaints). The affected entity is then given the opportunity to comment before objections or orders are issued.
Legal Protection and Judicial Review
Measures taken by supervisory authorities within the framework of legal supervision may be subjected to judicial review by the supervised entities. Administrative procedural law provides for different types of actions in court (mainly actions for annulment and actions for order). In addition, a constitutional complaint procedure is possible through municipal constitutional complaints.
Significance and Function of Legal Supervision
Legal supervision plays a central role in realizing democratic and rule-of-law principles within the structure of public administration. It ensures control and binding effect of administration to law and order (§ 20(3) GG), thereby supporting the establishment of a functioning, law-bound state system. Through its oversight, it contributes to the uniform application of the law and the strengthening of legal peace.
Further Terms: technical supervision, municipal supervision, self-administration, supervisory law, administrative enforcement
Frequently Asked Questions
When does legal supervision apply to a municipal body?
Legal supervision over a municipal body generally applies whenever, in the course of its duties, it violates applicable law. The supervisory authority does not review expediency, but solely the lawfulness of the action – that is, conformity with laws, ordinances, and other legal provisions. The supervisory authority can and must intervene when sovereign measures or administrative acts by a municipality are in violation of mandatory legal provisions (e.g., municipal code, budget law, or state law). Legal supervision is particularly active in areas where municipalities operate beyond their discretionary powers or when inaction results in a breach of law. Action can be taken both on the authority’s own initiative or following complaints from citizens or other authorities.
What instruments and measures are available to the supervisory authority?
The supervisory authority has a graduated system of means of intervention and control. The mildest measures include the request for submission of documents and information to verify the legality of actions. Further steps include notices, recommendations, and instructions for remedying identified breaches of law. In cases of serious violations, the authority may issue binding instructions, annul incorrect decisions, or order actions (e.g., rescission of resolutions and decisions). A particular measure is the right of substitute performance, whereby the supervisory authority may itself act in place of the municipality if it does not comply with the supervisory instruction. In grave exceptional cases, the authority can also suspend or dismiss municipal bodies.
How does legal supervision differ from technical supervision?
Legal supervision and technical supervision differ both in subject matter and in the extent of their potential interventions. While legal supervision involves only the control of compliance with general laws and regulations by municipalities, technical supervision is limited to specific delegated administrative matters (e.g., delegated state administration) and encompasses reviews of both lawfulness and expediency of administrative actions. The supervisory authority can under legal supervision only ever check whether a law has been violated, not whether a decision was ‘reasonable’. Technical supervision, on the other hand, may also, in the context of the fulfillment of instructive tasks, intervene in the discretion of the executing authority, provided this corresponds to the intent of specialized legislation.
Which municipal decisions are subject to mandatory submission to the supervisory authority?
Essential or particularly legally relevant decisions of municipal bodies, for example in budgetary matters (budget statutes, supplementary budgets, borrowing), the area of public service law (creation of civil servant positions), or in the levying of statutes and fees, are regularly subject to a submission requirement to the supervisory authority. These so-called approval reservations are set out in the applicable municipal codes or special statutes and provide that certain resolutions may only enter into force or be executed after presentation to and review by the supervisory authority. Prior approval from the authority may also be required for the establishment, amendment, or dissolution of municipal enterprises. The specific structure of the submission requirement varies by state.
Is legal supervision bound by deadlines?
Generally, there are no universally binding deadlines for the exercise of legal supervision in municipal law provisions. However, in specific approval or notification procedures, deadlines may be stipulated within which the authority must act or make a decision. For example, in the case of budget approval, a certain review period often applies, after which a decision must be made. Beyond this, the principles of proportionality and the requirement for effective legal protection entail certain obligations for prompt action, particularly in order to ensure legal certainty for the municipality and to guarantee proper fulfillment of duties. Nevertheless, excessively late intervention by the supervisory authority may be inadmissible under the principle of good faith if justifiable trust of third parties has emerged.
Can the municipal body appeal measures of legal supervision?
The municipal body affected by measures of the supervisory authority is in principle entitled to seek administrative legal recourse. This pertains both to general orders such as binding instructions and to burdensome administrative acts such as orders or substitute actions. The municipality or district may initially file an objection (where available) and then an action before the competent administrative court. Especially in cases involving violations of municipal self-administration, the Basic Law (Art. 28 GG) guarantees legal protection of local authorities against allegedly unlawful measures of the supervisory authorities. Judicial review permits both the examination of legality as well as proportionality and formal validity of the measure.
What role does the right to municipal self-administration play in the context of legal supervision?
The right to municipal self-administration according to Art. 28(2) GG secures municipalities and districts the independent exercise of their tasks. In the context of legal supervision, this means that supervisory authorities must respect the discretion of municipalities and limit interventions to what is strictly legally necessary. Legal supervision is therefore fundamentally retrospective and deficit-based; it may not independently prescribe how a matter is to be regulated, but only prohibit or annul unlawful conditions. In cases where there is legal discretion, supervisory action may only be taken if the discretion granted by law has been exercised in a manifestly unlawful manner or disregarded. The scope of legal supervision is thus limited by the constitutionally guaranteed right of self-administration.
