Concept and Significance of Local Laws
Local laws are a special category of legal provisions enacted by municipal entities, particularly communities (cities and villages) and districts. They regulate matters within their own area of responsibility at the local level, binding citizens and residents within their scope of application. In Germany and other federal states, local laws are among the key foundations of municipal self-government. They shape public life at the local level by establishing binding rules of conduct and organizational as well as administrative requirements.
Local laws are a central element in shaping and exercising municipal autonomy, which is guaranteed to municipalities under Article 28 (2) of the Basic Law (Grundgesetz, GG), allowing them to manage all local community affairs on their own responsibility within the framework of the law.
Legal Basis and Distinction
Legal Classification
According to the German legal system, local laws are legal norms legitimized by municipal self-government authority. Their basis is the respective municipal constitutional law of the federal states, which is comprehensively set out in municipal and district law. The most important statutory foundations are provided by:
- Article 28 (2) of the Basic Law (Municipal self-government)
- Municipal constitution laws of the federal states (e.g. Municipal Code (GO), Municipal Constitution Act (KomVG), etc.)
- State constitutions
These legal foundations determine that municipalities may enact by-laws (local laws) within the limits of the law. At the same time, they must comply with federal and state legal norms and must not contradict them (primacy of federal and state law).
Distinction from Other Legal Norms
Local laws are to be distinguished from:
- Ordinances: These are typically issued by executive bodies (e.g. the administration) on the basis of statutory authority and are not only applicable locally, but may also apply at the state or federal level.
- General administrative orders: These relate to specific factual circumstances, but can apply to an unspecified number of persons.
- By-laws: Local laws are often used synonymously with the term ‘by-law’, but the term ‘by-law’ generally covers all local legal norms enacted by a public body.
Forms and Content of Local Laws
Typical Content
Local laws typically address the following areas:
- Public order and safety: Street cleaning, monitoring and use of public facilities, poster rules, leash requirements for dogs
- Building and planning law: Zoning plans, design by-laws, conservation by-laws
- Fee and contribution law: Collection of charges for waste disposal, street cleaning, sewage disposal, cemetery fees
- Cultural and societal regulations: Usage regulations for libraries, sports facilities or other municipal institutions
- Noise protection, for example through so-called ‘night rest’ local laws
Special Forms of Local Laws
- Zoning plans (Section 10 of the Building Code) represent a particularly important special form setting binding regulations for the use of land within the municipal area.
- Fee schedules for municipal institutions regulate the use and fees to be paid for public services.
- Tax by-laws specify the assessment rates for municipal taxes such as property tax and business tax.
Procedure for Enacting Local Laws
Legislative Procedure
The procedure for enacting local laws is regulated by the respective municipal law and generally comprises the following steps:
- Initiative: Suggestions by the administration or members of the municipal council.
- Drafting a proposal: Prepared by the administration, possibly with input from relevant interest groups or committees.
- Deliberation in the committee: Discussion in specialist committees, possibly in several readings.
- Adoption: The competent municipal body (e.g. the municipal council) adopts the by-law/local law in a public session.
- Promulgation: The local law only acquires legal force through proper publication (e.g. according to the main by-law in an official gazette or on the municipality’s website).
- Review for legality: Municipal supervisory authorities (usually at the district or regional government level) check compliance with higher-ranking law.
Formal Requirements and Entry into Force
A local law can only become legally effective if all formal requirements, particularly transparency and comprehensibility for the public, are met. The publication requirement serves publicity purposes; insufficient or flawed promulgation can render the local law invalid.
Legal Effects, Oversight and Enforcement
Binding Effect and Addressees
Local laws are binding for all natural and legal persons within their scope. They apply to residents, businesses, and visitors in the municipality, as far as specified by the respective local law.
Oversight of Local Laws
Compliance with local laws is primarily the responsibility of the municipal regulatory authorities. Local laws can be reviewed by:
- Administrative courts: Within the framework of applications for judicial review in accordance with Section 47 of the VwGO, the legality of a by-law can be reviewed under certain conditions.
- Municipal supervisory authorities: These can identify and object to formal and substantive defects.
Sanctions for Violations
Violations of local laws may be sanctioned by fines or enforcement measures, provided this is stipulated in the respective by-law and permitted by higher law.
Reforms, Amendments, and Repeals of Local Laws
Local laws are subject to changes in local circumstances and can therefore be repealed or amended. This is done in the same procedure as the original enactment: by resolution of the representative body and proper promulgation.
Examples and Significance for Municipal Practice
Practical Relevance
The practical importance of local laws is significant: they shape everyday life at the local level, regulate the use of public facilities, ensure orderly procedures, and provide planning and legal certainty. For individuals, they may constitute immediate obligations and rights in relation to the municipality. Particularly in building and tax law, local laws are of considerable economic relevance.
Examples of Regulatory Areas
- Dog tax by-law: regulates the amount and collection of the municipal dog tax
- By-law on street improvement contributions: specifies the extent to which property owners are involved in the costs of street construction measures
- By-law on the use of public parks: sets rules of conduct for users of these facilities
References and Sources
- Municipal constitutions of the states (e.g. Municipal Codes)
- Thomas Mayen, Kommunalrecht, C. H. Beck, Munich
- BVerfG, decision of 15 December 1989 – 2 BvR 763/88 (‘Municipal self-government’)
- Building Code (BauGB)
- Administrative Court Procedure Act (VwGO)
Local laws form the backbone of municipal regulatory authority and enable municipalities to shape their own local affairs independently and with citizen involvement. As they are legally embedded in the German federal legal system, they operate within the tension between local autonomy and general legality.
Frequently Asked Questions
Who is responsible for enacting local laws?
In Germany, local laws, often referred to as by-laws or local legal provisions, are enacted by municipal bodies. This includes municipalities, cities, and districts. The municipal council or city council is the central body that adopts local laws. The nature and content of the competencies for adopting and designing local laws derives from the respective municipal law of the federal states, usually set out in the municipal constitutions or municipal codes. The administration is then responsible for implementing and applying these laws, while some supervisory rights are exercised by state oversight authorities.
What legal limits apply to local laws?
Local laws may only be enacted within the assigned tasks and powers of municipal self-government. They must be compatible with higher-ranking law, in particular the Basic Law, state constitutions and state laws, as well as federal laws (so-called ‘norm hierarchy’). If local laws exceed these limits, they are invalid due to exceeding competence or substantive illegality. They may not contain provisions reserved exclusively for the federal or state government (e.g., criminal law, taxation law except for municipal taxes). Municipal regulatory powers generally extend to matters of the local community, such as public facilities, safety and order, urban planning, and the collection of taxes and charges.
How are local laws promulgated and when do they come into force?
Local laws only come into force after proper promulgation. The procedures for promulgation are specified in the respective municipal codes or publication by-laws. Usually, promulgation takes place in the official gazette of the respective municipality or by public notice. The statutory text states a specific date of commencement or it is determined by the provision itself, for example at the end of the day of promulgation or at a specified future date. Without effective promulgation, the local law does not legally exist and cannot be applied.
How can citizens challenge a local law?
A local law that has been enacted can usually be judicially reviewed through a so-called norm control action, provided the requirements are met. Depending on the federal state, this can be brought before the appropriate Higher Administrative Court (OVG) or Administrative Court of Appeal (VGH) (§ 47 VwGO). Individual affected parties can also invoke the invalidity of the underlying local law in specific cases, such as when appealing fines or rejected applications, before administrative courts. The action is likely to succeed if the local law contains formal or substantive errors, such as violations of higher-ranking law or omission of proper promulgation.
What are some examples of the content of local laws?
Local laws regulate specific matters of the local community. Typical examples include the collection of municipal charges (e.g. dog tax by-laws, fee by-laws for waste disposal and sewage), house rules for public institutions (such as libraries or swimming pools), regulatory ordinances (for example on leash requirements for dogs, bans on open fires in designated areas), as well as construction regulations (such as design by-laws, zoning plans). Markets, fairs, special use of public spaces, or aspects of environmental protection (trees, monument protection) are also governed by local laws.
Under what circumstances can a local law be repealed or amended?
The repeal or amendment of a local law requires a new formal resolution by the competent municipal body, usually the municipal council or city council. The procedure again follows municipal legal provisions, especially with respect to form, deadlines, and public access to meetings. The amendment or repeal, as with the original enactment, becomes effective only through proper promulgation. Reasons can include changes in the legal framework (such as new state laws), political decisions, practical experience, or changes in municipal responsibilities. Municipalities generally enjoy wide discretion here, but must always comply with legal requirements.
What is the relationship between local laws and other sources of law?
In the German legal hierarchy, local laws are subordinate to state and federal laws as well as the Basic Law. They can only be enacted within the scope of municipal responsibilities and must not contradict higher-ranking law (the so-called principle of precedence). In cases of conflict, the local law is ineffective or inapplicable to the extent of the conflict. Often, higher-ranking law already covers fundamental issues and grants municipalities discretion or design options (‘delegated tasks’), which are filled by local laws. In situations of incompatibility, there is a primary obligation to directly apply state or federal law.
