"The conclusions of this report are sobering," sums up Dr. Winfried Klein, Head of the Mayor's Office and the Administrative Coordination, Communication and International Affairs Department. "Even if the municipalities have no financial or personnel capacities: They must enforce federal law and, if necessary, defer their own tasks to do so. In other words, they have to enforce federal laws until they collapse."
The report was compiled against the backdrop of the dramatic financial situation of local authorities across Germany. The state capital Stuttgart also has to make drastic savings after many good years and will probably have to take on debt again. One reason for this is that the federal government has passed numerous legal requirements in recent years, which the local authorities must now fulfill. The federal government only provides limited financial compensation. And the federal states either raise no objections in the Bundesrat or even agree. In order to examine this, the state capital Stuttgart obtained a comprehensive legal opinion, which is now available.
No entitlement to funding - but two glimmers of hope
The report was prepared by Prof. Dr. Kyrill-Alexander Schwarz, Professor of Public Law in Würzburg. His conclusion: the local authorities have no claim to financial compensation from the federal government. There is no dependency between the transfer of tasks and financial resources (connexity), neither between the federal government and the federal states nor between the federal government and the municipalities. There is certainly no claim by the municipalities against the federal government to withdraw tasks or to refrain from expanding existing tasks. The local authorities only have a claim to financial compensation from the federal states if the state transfers tasks to them.
"It only does this in the rarest of cases when implementing federal law," says Dr. Winfried Klein. "So the local authorities usually come away empty-handed. They have practically no legal protection options." Expert Schwarz warns: "Only efficient municipalities can be a viable basis for democracy. If the municipalities can no longer fulfill their tasks, society will suffer irreparable damage!"
From the municipalities' point of view, the report only comes to two conclusions that give hope: If a state does not call up federal funds that have been made available to it, then the municipalities in that state can sue the federal government directly for the uncalled funds. The second point is that the state government must not blindly overburden the local authorities by approving a federal law. It follows from its duty to protect the municipalities that it must take the interests of the municipalities into account when determining its voting behavior in the Bundesrat.
The appointed expert
Kyrill-Alexander Schwarz (born 1968) is Professor of Public Law at the Julius-Maximilians-Universität Würzburg. Prior to his teaching career, he was a research assistant at the Federal Constitutional Court and Head of Division for "Fundamental Issues of the Constitution" in the State Chancellery of North Rhine-Westphalia.
He completed his doctorate on the subject of "Financial constitution and municipal self-administration: A contribution to the question of financing municipal tasks". His habilitation deals with the "Protection of legitimate expectations as a constitutional principle". He also dealt with questions of the "State guarantee for municipal liabilities in the event of 'de facto bankruptcy' of municipalities".