Definition and Nature of State Supervision
Die State Supervision is a central instrument of public law concerning the management, control, and legal oversight of public-law corporations, institutions, foundations, as well as delegated bodies and administrative assistants by state authorities. It ensures the legality and appropriateness of administration, along with safeguarding governmental interests at various levels of administration. State supervision is particularly significant in the context of municipal self-administration tasks, in the education sector, as well as within public-law organizations.
Legal Basis of State Supervision
Constitutional Foundations
State supervision is based on various provisions of the Basic Law. In particular, Article 28 of the Basic Law (GG) regulates the guarantee of municipal self-administration and the possibility of state oversight. The individual state constitutions contain supplementary provisions that set out the relationship between the state and municipalities.
Statutory Regulation
In ordinary statutory law, state supervision is, for example, regulated through the municipal codes of the states (e.g., § 119 German Municipal Code North Rhine-Westphalia, Art. 111 Municipal Code Bavaria), as well as at the federal level, such as in the Social Code (e.g., §§ 94ff. SGB VIII for the supervision of public youth welfare providers). In addition, there are specific supervisory norms in special laws such as the Higher Education Act, the School Act, and foundation law.
Types of State Supervision
General Distinction
State supervision can be differentiated based on the standard of supervision and the scope of permissible state interventions.
1. Legal Supervision
Die Legal Supervision is limited to controlling the legality of the administrative actions of the supervised corporations or institutions. Here, it is checked whether laws and other legal requirements have been observed. Interventions occur only if legal violations are present.
2. Technical Supervision
Die Technical Supervision goes beyond legal control and also includes reviewing the appropriateness, efficiency, and objective purpose of administrative activities. The supervisory authority can issue instructions not only on legality but also on substantive correctness and economic implementation.
3. Supervisory Control of Service
Die Supervisory Control of Service is directed at the behavior of individual office holders and monitors their fulfillment of official duties, discipline, and engagement. It does not concern the substantive design of administrative decisions.
Bearers and Recipients of State Supervision
Bearers of State Supervision
Bearers of state supervision are predominantly higher-level authorities. In the federal system of the Federal Republic of Germany, the federal states exercise supervision over municipalities, while the Federal Ministry exercises supervision over state authorities or federally administered bodies in specific matters.
Recipients of State Supervision
Recipients of state supervision are legally independent or semi-independent administrative bodies, notably municipalities, districts, other municipal associations, but also public-law foundations and institutions, corporations under public law, and delegated entities entrusted with public administrative tasks.
Instruments and Powers of State Supervision
Audit Rights
The supervisory authority is entitled to inspect files, request information, conduct unannounced inspections, and review documents. This serves to determine and assess questions of legality and expediency.
Requirement of Approval
Numerous actions of the supervised corporations require approval from the supervisory authority, such as budget statutes, taking out loans, incurring new obligations, and fundamental amendments to statutes affecting self-administration.
Instruction and Objection Rights
The supervisory authority may issue directives to correct actions that violate laws or appropriateness. Objections to individual administrative acts are also permissible, which may then be followed by orders for rectification of deficiencies.
Substitution and Suspension
In cases of persistent violations, the supervisory authority is entitled to independently take measures by way of substitution or temporarily remove bodies of the corporation from office.
Limitation of State Supervision and Right to Be Heard
Limits of State Supervision
To preserve the guarantee of municipal self-government and organizational autonomy of public-law bodies, the exercise of state supervision is legally limited. In particular, legal supervision restricts the intensity of intervention to legally mandated corrections and prohibits general technical supervision unless expressly provided by law.
Legal Protection
Supervised organizations and corporations may take legal action against supervisory measures through administrative legal channels (e.g., via objection, litigation). The right to be heard before the issuance of burdensome supervisory measures is legally guaranteed.
Areas of Application and Practical Relevance
Municipal Supervision
At the municipal level, state supervision is referred to as municipal supervision. It monitors the compliance with legal provisions by cities, municipalities, and districts with regard to their administrative activities and budget management.
Other Sectors
- School Supervision: Supervision of the organizational and pedagogical activities of public and private schools
- Foundation Supervision: Monitoring compliance with foundation purposes and legal requirements in public-law foundations
- Church Supervision: State powers of intervention in certain public-law religious communities, if provided by state law
Distinction and Relationship to Other Forms of Supervision
State supervision must be distinguished from more specialized forms of oversight, such as technical supervision, legal supervision (as a subtype), municipal supervision, or the supervision of private sector enterprises by state authorities (e.g., trade supervision, financial supervision). Unlike purely self-regulatory systems, a hierarchical relationship of directives exists.
Literature and Further Information
- Otto Mayer: Deutsches Verwaltungsrecht. Volume 1, C.H. Beck, Munich.
- Hermann Hill: Die Staatsaufsicht im System der Verwaltungsaufsicht, in: Die Öffentliche Verwaltung (DÖV).
- Hans-Uwe Erichsen, Martin Hansen (Eds.): Allgemeines Verwaltungsrecht, Springer-Gabler.
- Municipal codes and relevant special statutes of the federal states
Summary:
State supervision is a vital instrument of control and management to ensure legality, efficiency, and public interests in administrative conduct. Its specific characteristics, intensity, and concrete implementation vary depending on the group of recipients, subject matter, and legal basis, and must always be evaluated in light of constitutional principles, especially the guarantee of self-administration.
Frequently Asked Questions
How is legal control exercised by state supervision over subordinate authorities or bodies?
State supervision exercises comprehensive legal oversight over subordinate authorities, bodies, or other administrative agencies that perform sovereign tasks, particularly at the state or municipal level. Control is generally exercised in two forms: as technical supervision (comprising both technical and legal supervision) or as pure legal supervision (limited to compliance with applicable law). The relevant rules can be found in the respective municipal codes, administrative laws, and specific laws of the states, as well as in the Administrative Procedure Act (VwVfG). Legal control means that the supervisory authority reviews whether the measures, decisions, and statutes adopted within its area of responsibility are consistent with higher-ranking law, including constitutional, administrative, and sectoral law. The review can take place either without cause (regular audits) or for cause (as a result of complaints, indications, or irregularities). Instruments of legal control especially include objections, annulment of unlawful measures, orders to restore lawful status, and initiation of substitution. A particularly protected area concerns the right of municipal self-government (Art. 28 para. 2 GG); within the framework of legal supervision, state supervision here is strictly limited to reviewing the legality, not the expediency, of measures.
What legal limits are imposed on state supervision?
State supervision is limited, first and foremost, by the principle of self-government, especially with respect to municipal bodies such as cities and municipalities (Art. 28 para. 2 GG). In these cases, state oversight is usually limited to reviewing legality (legal supervision), but not the expediency of measures. Furthermore, all state supervisory actions are always subject to the principle of proportionality. Interventions may only take place as far as is necessary to ensure legality or to prevent or eliminate unlawful conditions. Existing legal bases, especially at the state level, determine the nature and scope of possible measures, for example, through clearly formulated powers of intervention, administrative instructions, or requirements for the right to be heard prior to supervisory measures. The interest in legal recourse for affected parties (e.g., constitutional complaint regarding municipal law, action for annulment) also constitutes a legal barrier to state supervisory action.
In what form can state supervision be exercised?
State supervision may be exercised both preventively and repressively. Preventive measures include, for example, requirements for approval of certain resolutions or legal acts of the supervised entities, such as budgets or loan approvals. Repressive measures are applied, in particular, when violations of the law are subsequently established. These include objections, letters of objection, orders to repeal measures in whole or in part (annulling orders), or in extreme cases, substitution after a set deadline (§ 65 VwVfG by analogy). There are also sanctions, such as the initiation of disciplinary proceedings against those responsible or the temporary appointment of a commissioner. The type and intensity of supervision depend on the specific statutory mandate as well as the severity and significance of the detected violation.
What legal remedies are available to affected bodies or authorities against measures of state supervision?
Affected bodies or authorities are entitled to defend against measures of state supervision using the legal remedies customary in administrative procedural law. These include, in particular, the action for annulment before the administrative court pursuant to § 42 para. 1 VwGO against onerous orders and, in the case of evident abuse of discretion, a declaratory action (§ 43 VwGO). Before lodging a lawsuit, an objection procedure is routinely required, provided respective state or federal law so provides. In addition to administrative court proceedings, in the event of violation of the right to municipal self-government (Art. 28 para. 2 GG), municipalities may lodge a constitutional complaint, especially before the respective state constitutional court. The legality of approvals may also be contested by third parties concerned, if their rights are infringed.
Is state supervision itself subject to judicial review?
The measures and decisions of state supervision are always subject to judicial review in accordance with the principle of effective legal protection (Art. 19 para. 4 GG). Courts review whether state supervision exercised its powers within the framework of the statutory regulations and in compliance with administrative discretion. In addition to formal and substantive legality, the principle of proportionality is a key focus of judicial review. In particular, it is examined whether the legitimate interests of the supervised entity were adequately taken into account, whether prerequisites for annulment existed, and whether the discretion was lawfully exercised or whether there was an abuse or misuse of discretion, or even arbitrariness. Judicial review covers all types of state supervisory means—from objections to annulment orders to substitution.
What role do special legal supervisory provisions play in relation to general supervisory law?
Special legal supervisory provisions, for example, as exist in school law, social law as well as construction and environmental law, generally take precedence over the general rules on state supervision (lex specialis derogat legi generali). They specifically define the nature and scope of oversight, allocate specific supervisory rights and duties, and may even provide detailed procedural rules, such as requirements for approval, cooperation obligations, or deadlines. The general provisions of state or federal law—in particular, the general administrative laws—apply subsidiarily to the extent that special laws do not contain any or only rudimentary provisions. Especially in complex areas of administration, thorough knowledge of the relevant special legislation is essential to determine the content and scope of supervisory review.
