Definition of Terms: Own Sphere of Responsibility
Der own sphere of responsibility is a central concept in public law, especially in municipal law in the Federal Republic of Germany and Austria. It refers to the area of responsibility in which municipal territorial authorities (such as municipalities, cities, or districts) independently and autonomously carry out tasks without being bound in individual cases by instructions from state supervisory authorities.
Legal Background of the Own Sphere of Responsibility
Municipal Self-Government
The principle of the own sphere of responsibility is based on the principle of municipal self-government, which is guaranteed by the Basic Law (Article 28 paragraph 2 GG). Municipalities and districts have the right to regulate all matters of the local community within the framework of the laws on their own responsibility. These duties are referred to as matters of the own sphere of responsibility .
Distinction from the delegated sphere of responsibility
Legally, a clear distinction is made between:
- Own sphere of responsibility: Tasks managed by the municipality on its own responsibility.
- Delegated sphere of responsibility: State functions assigned to the municipality by law or regulation for execution on behalf of and under the supervision of the state.
This distinction is relevant for the scope of municipal decision-making autonomy as well as for the supervisory and instructive rights of higher-level authorities.
Content and Examples of the Own Sphere of Responsibility
Tasks within the own sphere of responsibility
Tasks within the own sphere of responsibility include all matters concerning the local community that municipal councils, city councils, or municipal boards are permitted to regulate independently. Examples of this are:
- Preparation of the municipal budget plan
- Construction and maintenance of public facilities (e.g., schools, sports facilities, social institutions)
- Organization and financing of local public transport
- Collection of municipal taxes and fees (e.g., trade tax, property tax)
- Promotion of art, culture, and sports within the municipality
- Local economic development measures
For these areas, the municipality generally has planning sovereignty and freedom of design, as long as there are no explicit legal restrictions.
Limitations of the Own Sphere of Responsibility
Although municipalities are independent in their own sphere of responsibility, they are bound by the applicable laws and fundamental rights. In particular, municipal budget law, public procurement law, or environmental law may limit the municipality’s decision-making freedom.
Freedom from Instructions and State Supervision
Freedom from Instructions
In the own sphere of responsibility, municipalities act independently and are generally not subject to individual instructions from state authorities. Only a pure legal supervision: The supervisory bodies of the states monitor only compliance with the laws, not the expediency of municipal decisions.
Exceptions and Right of Intervention
However, the state may intervene under the legal supervision in the event of grossly erroneous or unlawful conduct by municipal bodies, such as by objections, annulment of decisions, substitute performance, or instructions to restore lawful conditions.
Legal Sources and Statutory Basis
Germany
Der own sphere of responsibility is defined in Germany in particular by the following regulations:
- Basic Law, Art. 28 II: Guarantee of municipal self-government
- Municipal constitutions of the federal states: These state laws (e.g., municipal code, municipal constitution act) specify the rights and duties of municipalities regarding the own and delegated spheres of responsibility.
- Example: § 2 para. 1 Municipal Code of NRW: Municipalities regulate all affairs of the local community within the framework of the laws on their own responsibility.
Austria
Also in Austrian Federal Constitutional Law (B-VG) the own sphere of responsibility is enshrined. The basic structure is comparable to the German system: municipalities are bearers of self-government and act within their own sphere of responsibility, as long as they do not act as executive bodies for federal or state tasks.
Case Law Related to the Own Sphere of Responsibility
The interpretation of which tasks belong to the own sphere of responsibility and how far municipal self-government extends has been refined many times by administrative courts and the Federal Constitutional Court. Case law is particularly important in disputes over the distinction between the own and delegated spheres of responsibility, or in the context of state intervention.
It is always decisive whether the subject matter has been expressly assigned by law as a duty subject to instructions, or whether it is a matter of the local community.
Significance of the Own Sphere of Responsibility for Municipal Practice
The own sphere of responsibility guarantees municipalities a constitutionally protected scope of decision-making and autonomy in structuring their affairs. They can set their own priorities and independently manage the interests of the local community. Self-government autonomy in the own sphere of responsibility forms the basis for democratic participation at the local level.
Summary
Der own sphere of responsibility refers to the independently managed and self-governed areas of responsibility of municipalities and other municipal bodies. It forms the core area of municipal self-government and enjoys special protection under constitutional law. Municipalities have a high degree of decision-making freedom here, but must comply with the legal framework and are subject to legal supervision.
A thorough understanding of the own sphere of responsibility is essential for assessing the powers of local authorities and the boundaries and possibilities of local self-government in the German and Austrian legal systems.
Frequently Asked Questions
When is the term ‘own sphere of responsibility’ used in a legal context?
In legal terms, the own sphere of responsibility refers in particular to the areas of responsibility of a legal entity under public law, usually a municipality or other local authority, which are to be exercised independently, i.e., without direction or influence from state organs. The configuration and delimitation of the own sphere of responsibility are regulated by law, especially in the respective municipal constitution law. Typical examples in the own sphere of responsibility are the independent administration of municipal assets, zoning and land-use planning, the organization of public institutions such as schools and kindergartens, and local street cleaning. Decisions in this area are fundamentally within the independent competence of the authority concerned; state intervention is only of a legal nature, e.g., through municipal supervision to ensure legality, but not commission-based.
What are the legal limits of the own sphere of responsibility?
The exercise of the own sphere of responsibility is subject to various legal limits. Firstly, municipal tasks within the own sphere of responsibility must always be carried out within the framework of applicable laws. This concerns both federal and state laws as well as the main statutes of the municipality. The authority’s decision-making freedom is further limited by the principle of legality of administration, meaning that, in particular, public interests and the fundamental rights of third parties must be observed. In addition, measures from the own sphere of responsibility must not intrude into overarching state competences or the delegated sphere of responsibility. Based on this, municipal oversight regularly checks whether the municipality is properly carrying out its tasks within the scope of its legal authority; however, as far as the own sphere of responsibility is concerned, oversight usually only takes the form of legal supervision and not specialist supervision.
To what extent is the own sphere of responsibility subject to municipal supervision?
The own sphere of responsibility is subject to municipal supervision in the form of legal supervision, but not specialist supervision. This means that the competent supervisory authorities only check whether the municipality or the respective body is complying with applicable laws and regulations when performing its tasks. Influence on the expediency or substantive design of the decisions is excluded. Municipal supervision may therefore only intervene if the municipality violates legal provisions, and it can then issue orders to restore legality. Substantive influence, such as instructing a particular action or a decision to be made in a certain way, is generally excluded in matters of the own sphere of responsibility.
What legal remedies are available in disputes regarding the own sphere of responsibility?
If disputes arise in connection with the tasks of the own sphere of responsibility, for example between a municipality and a supervisory authority, administrative legal remedies are available. Typically, the affected body can file a municipal constitutional dispute before the administrative courts. Legal remedies such as objection or action for annulment can also be taken against municipal supervision measures that intervene because they find a violation of rights within the own sphere of responsibility. In practice, such disputes are often complex, as they involve the distinction between the own and delegated spheres of responsibility as well as the scope of municipal supervision.
Can a municipality transfer or delegate competences from the own sphere of responsibility?
In principle, entities may not permanently transfer tasks from their own sphere of responsibility to third parties, especially not to other legal entities. However, certain tasks may be transferred if the respective state law explicitly permits it or there are relevant delegating legal provisions. To a limited extent, organizational arrangements are permissible, that is, specific tasks can be outsourced to municipal enterprises, special-purpose associations, or municipal companies that remain under municipal control. However, the autonomous decision-making authority and the final decision-making right must always remain with the municipality.
How is the own sphere of responsibility distinguished from state instructions?
The own sphere of responsibility must be strictly separated from tasks within the delegated sphere of responsibility, where the municipality acts as an extension of the state, following instructions and under specialist supervision. While there is genuine self-government autonomy in the own sphere of responsibility, in the delegated sphere there is a binding effect through instructions, decrees, and orders from the state. The distinction is made according to the respective statutory provisions, which determine which tasks belong to municipal self-government and which are carried out on behalf of the state.
What is the significance of the own sphere of responsibility for municipal financial autonomy?
The own sphere of responsibility also includes the municipality’s financial autonomy, that is, independent preparation and execution of the municipal budget, the collection of local taxes, and the use of municipal income and expenditures. This organizational autonomy is a core element of the municipal self-government guarantee under the Basic Law (Art. 28 para. 2 GG). Interventions in this right of self-government, for example through excessive state supervisory or directive powers, are only permissible in well-justified exceptional cases. The municipality therefore independently decides on the allocation of funds, but must always comply with the legal requirements for budgeting, especially the requirement for economic and efficient use of funds and debt limitations.
