Definition and Fundamentals of Participatory Administration
Die Participatory Administration is a term in German administrative law that refers to a specific form of administrative activity in which private individuals or other non-governmental institutions are involved in the performance of public tasks. This form of administration represents a hybrid between pure state self-administration and private self-governance. Participatory administration is particularly relevant where state agencies perform certain administrative tasks not solely by themselves, but with the involvement of third parties.
Legal Classification of Participatory Administration
Distinction from Other Forms of Administration
Participatory administration must be distinguished from other organizational forms of administration, especially:
- Self-administration: The complete execution of public tasks by government authorities without the involvement of third parties.
- Third-party administration: The full outsourcing of public tasks to private third parties without significant state direction.
- Delegation of Authority: The transfer of sovereign powers to private entities by means of an act of delegation, enabling them to exercise sovereign functions independently.
In contrast to delegation of authority, in participatory administration the ultimate responsibility generally remains with the state, which involves the participating third parties in administration within a regulated, usually sub-statutory, framework.
Forms of Participatory Administration
Participatory administration can appear in various forms, for example as:
- Involvement of chambers, associations, or organizations in fulfilling certain administrative tasks (e.g., chambers of industry and commerce in examination matters).
- Involving private experts in administrative decisions (e.g., expert reports or assessments in approval procedures).
- Participation of citizens in commissions or advisory boards, for instance in environmental law or monument protection.
Legal Basis and Structure
Statutory Basis
Participatory administration requires a legal basis. In many cases, this is provided in specialized statutes, such as the Trade Regulation Act, the Crafts Code, or the Administrative Procedure Act. The specific design depends on the respective area of responsibility and the administrative level concerned.
Examples of statutory regulations:
- Trade Regulation Act (GewO): Here, the participatory rights of chambers of industry and commerce or chambers of crafts are laid down.
- Crafts Code (HwO): The HwO provides for the involvement of chambers of crafts and guilds in conducting examinations or in administrative procedures.
- Administrative Procedure Act (VwVfG): Contains general regulations on the participation of third parties, especially in the context of hearings.
Task Allocation and Responsibility
The essential decision-making powers remain with the governmental authority. Participating third parties typically have advisory, supportive, or co-decision functions, but cannot independently make sovereign decisions unless an express delegation in accordance with § 9 VwVfG has taken place. Supervision over the proper administration of the task remains with the state.
Functions and Objectives of Participatory Administration
Democratic Legitimacy
By involving social groups or expert persons, administration gains democratic legitimacy and becomes more transparent. Participatory administration contributes to increased involvement of affected parties or knowledgeable third parties in administration.
Efficiency and Expertise
The inclusion of experts or organizations increases the technical quality of administrative decisions. Practicality and specific expertise, for example in craft examinations, benefit the common good.
Improved Administrative Practice
Participatory administration can help enhance acceptance and quality of administrative procedures. The involvement of third parties is seen as a contribution to citizen-oriented administration and improved rulemaking.
Distinction from Delegation of Authority
A key distinguishing feature from delegation lies in the type of decision-making authority. In the context of participatory administration, the final decision remains with the state, while in the case of delegation, an independent exercise of sovereign tasks is enabled for a third party. Participatory administration is therefore more flexible and easier to control, as the state remains legally in charge.
Areas of Application for Participatory Administration
Business and Professional Law
Participatory administration is particularly important in the area of trade, crafts, and professional law. In this context, chambers, associations, or other organizations are often entrusted by law with administrative tasks, especially in the field of examination, licensing, or supervision.
Environmental and Planning Law
In environmental law, participatory administration is used to involve environmental associations, citizens’ initiatives, or expert third parties in planning and approval procedures. This contributes to transparency and legitimacy.
Healthcare
In healthcare, professional organizations and advisory boards are also integrated into various administrative processes, for example in the licensing of physicians or the organization of examinations.
Procedural Particularities
Participation Rights
Participatory administration consists of specific participation rights and obligations. These include rights to be heard, co-decision rights in commissions, or advisory activities.
Legal Protection
Participating third parties do not generally have their own decision-making powers with direct external effect. Legal protection against administrative acts is usually only available against governmental agencies. Exceptions may arise if a quasi-governmental decision was substantially influenced by the act of participation.
Significance and Evaluation
Participatory administration promotes the involvement of social groups in state decision-making processes and thus contributes to better legitimacy and practical effectiveness of administrative actions. It offers flexibility, increases the acceptance and expertise of state measures, and can therefore enhance the efficiency and quality of public administration. At the same time, this form of administration requires clear legal regulations to ensure the allocation of tasks, responsibility, and supervision.
Literature and Further Information
- Erichsen, Ehlers: Allgemeines Verwaltungsrecht. 16th Edition, 2022.
- Maurer: Allgemeines Verwaltungsrecht. 21st Edition, 2023.
- Müller, Tina: Die Mitwirkungsverwaltung im deutschen Verwaltungsrecht, 2018.
- Sachs: Basic Law Commentary, 9th Edition, 2021.
Note: Participatory administration is a complex concept and is shaped by numerous special regulations in the respective specialized statutes. Individual case analysis is always essential in this regard.
Frequently Asked Questions
What are the legal foundations governing participatory administration in Germany?
Participatory administration is not a uniformly codified legal institution in German law, but arises from various constitutional and statutory regulations. The Basic Law is central here, particularly Articles 83 to 85 GG, which regulate administrative competencies between the federal government and the states. Article 83 GG plays a central role, according to which the states generally implement federal laws as their own affairs unless the Basic Law provides otherwise. Article 85 GG specifies the so-called federal administration by commission, a form of participatory administration in which the states implement federal laws on behalf of the federal government. Further specific provisions can be found in specialized statutes, in which additional details on participatory duties and control rights are established. In addition to these formal regulations, general principles of administrative law also apply, such as the principle of legality, the rule of law, and the authority of the federal government to act and supervise. Numerous rulings by the Federal Constitutional Court further clarify the interpretation and application of relevant provisions.
What typical forms of participation exist within the framework of participatory administration?
In the legal context, several typical forms of participation can be distinguished. The most common is federal-state participation within the framework of federal administration by commission (§85 GG) and in the form of mixed administration for joint tasks (Art. 91a, 91b GG). In federal administration by commission, the states implement federal laws in their own name, but under the instructions of the federal government. This means they are responsible for carrying out and organizing administrative tasks, but must strictly adhere to federal requirements and report to the federal government. Mixed administration, on the other hand, is characterized by coordinated cooperation between the federal government and the states, with administrative activities jointly planned, coordinated, and carried out. Other forms of participation include consent requirements in the context of the Bundesrat, mandatory hearings, administrative agreements, or institutionalized cooperation structures. These reflect the federal nature of the Federal Republic and prevent both hierarchy and subordination of an administrative level.
How far does the federal government’s authority to issue instructions to the states extend in participatory administration?
The federal government’s authority to give instructions to the states is legally precisely defined in participatory administration. In federal administration by commission (Art. 85 GG), the federal government can issue both general and specific instructions relating to the implementation of the respective federal laws. The states are strictly bound by these instructions and have no discretion regarding the “if” of the measure, only regarding the “how,” provided this is not exhaustively regulated by federal law. Implementation of federal laws is always subject to the technical and legal supervision of the federal government. The states may, if necessary, raise concerns against instructions, but ultimately must comply as long as they are not clearly unlawful. In other forms of participatory administration, such as mixed administration, there are generally no direct possibilities for instructions, but only rights to coordinate and consult.
What control mechanisms can the federal government use against the states within the framework of participatory administration?
The federal government has various control mechanisms at its disposal within the legal framework of participatory administration. Central is the right of supervision according to Art. 85 para. 4 GG, whereby the federal government may have the execution of federal laws examined by appointed persons. This supervisory mechanism aims at the effectiveness, legality, and uniformity of administrative execution. Furthermore, as part of legal and technical supervision, the federal government may request detailed reports, access to files, and information. If procedural or legal violations are identified, the federal government can implement corrective measures, including issuing instructions or ultimately bringing the matter before the Federal Constitutional Court for decision (Art. 84 para. 4 GG). In addition, specialized federal-state commissions may be established to continuously monitor implementation and undertake coordination tasks.
How is liability and responsibility regulated in case of errors in participatory administration?
Liability and responsibility in the context of participatory administration depend on the respective administrative authority exercised. If the states implement federal laws by commission, they are generally liable for their own administrative acts; claims are primarily directed against the respective state. Nevertheless, the federal government has a supervisory responsibility regarding instructions and oversight measures. In mixed administration or joint tasks, joint and several liability between the federal government and the states may arise, especially if the administrative error is based on a joint measure. Liability is determined in detail by the administrative compensation law of the federal government and the states (e.g., official liability according to § 839 BGB in conjunction with Art. 34 GG), with legal protection against administrative acts guaranteed by administrative courts according to general principles.
What role does the Bundesrat play in participatory administration?
From a legal perspective, the Bundesrat plays a central role in participatory administration, especially in federal legislation affecting the administrative competencies of the states. Numerous federal laws that require the involvement or execution by the states need the consent of the Bundesrat because they significantly affect the interests of the states (§ 84 para. 1 GG). The Bundesrat can thus exert legislative influence on tasks in which the states are affected in execution, thereby safeguarding the interests of the states vis-à-vis the federal government. In addition, the Bundesrat participates in appointing and supervising bodies responsible for overseeing participatory administration.
How are conflicts between the federal government and the states resolved in participatory administration?
Conflicts between the federal government and the states in the context of participatory administration are usually resolved at various levels. Primarily, there are possibilities for informal or formal coordination and mediation, such as administrative agreements or federal-state committees. If a consensual solution cannot be reached, proceedings before the Federal Constitutional Court are available. According to Art. 93 para. 1 no. 3 GG, the Federal Constitutional Court decides on disagreements regarding the implementation of federal law by the states. Typical issues include the legality of instructions, competence for execution, or the compatibility of specific measures with the Basic Law. In such organ dispute proceedings, the court can issue binding decisions and provide guidelines for distinguishing respective competencies.
