In the version promulgated on 6 January 1993 (GVBl. p. 65, BayRS 202011I)
as last amended by the Law of 27 December 1996 (GVBl. p. 540)
(New promulgation of the Local Government Law of the Free State of Bavaria of 25 January 1952 (GVBl. p. 19), most recently Local Government Law of the Free State of Bavaria (Local Government Ordinance – GO) in the version promulgated on 11 September 1989 (GVBl. p. 585, BayRS 202011I), on the basis of Article 7 of the Law of 7 August 1992 (GVBl. p. 306). – This version shall take effect as of 1 September 1992.)
Table of Contents
Article 5 Belonging to and not belonging to a district
Article 5a Incorporation in the district; Large district town
Article 6 General sphere of activity
Article 7 Own matters
Article 8 Transferred matters
Article 9 Further tasks for municipalities not belonging to a district and large district towns
Article 10 Municipality territory and guarantee of continued existence
Article 10a Territory not belonging to a municipality
Article 11 Changes
Article 12 Responsible authority; Further validity of local law
Article 13 Further consequences of the changes
Article 13a Special regulations for property rights
Article 14 Promulgation; Fees
Article 15 Inhabitants and citizens
Article 16 Freedom of a municipality
Article 17 Suffrage
Article 18 Joint consultation right (Citizens’ Assembly)
Article 18a Petition for a referendum and citizens’ decision
Article 19 Honorary activities
Article 20 Duty to take due care and to observe secrecy
Article 20a Compensation
Article 21 The use of public institutions; Bearing municipality charges
Article 34 Legal status of the mayor
Article 35 Legal status of the deputy mayors
Article 36 Execution of municipality council decisions
Article 37 Responsibility of the mayor
Article 38 Executory contracts; Representation of the municipality
Article 39 Deputisation; Transfer of power
Article 45 Rules of procedure
Article 46 Management
Article 47 Session compulsion; Quorum
Article 48 Obligation to participate; Administrative fine for defaulters
Article 49 Exclusion due to personal involvement
Article 50 Limitation of the right of representation
Article 51 Form of decision-making; Elections
Article 52 Publicity
Article 53 Administration of order
Article 54 Minutes
Article 55 Course of business of the committees
Article 56 Lawfulness; Course of business
Article 56a Secrecy
Article 57 Tasks of the own sphere of activity
Article 58 Tasks of the transferred sphere of activity
Article 59 Responsibility for executing laws
Article 61 General budgetary principles
Article 62 Principles of revenue raising
Article 63 Financial regulation
Article 64 Budgetary plan
Article 65 Issuing the financial regulation
Article 66 Extra and unscheduled expenditure
Article 67 Obligation authorisations
Article 68 Supplementary regulations
Article 69 Provisional budgeting
Article 70 Financial planning
Article 74 Acquisition and administration of assets
Article 75 Selling assets
Article 76 Reserves
Article 77 Execution against municipality property due to an outstanding debt
Article 78, 79 (repealed)
Article 89 Establishing, taking over and expanding economic corporations
Article 90 Duty to give notice
Article 91 Companies under private law
Article 92 Participation in credit cooperatives
Article 93 Representation in the event of participation
Article 94 Administration of economic operations
Article 94a Information and auditing rights
Article 95 Municipalities’ own companies
Article 96 Independent local authority company under public law
Article 97 Bodies within the local authority company, staff
Article 98 Other provision for local authority companies
Article 99 (repealed)
Article 108 Purpose of state supervision
Article 109 Content and limits of supervision
Article 110 Legal supervisory authorities
Article 111 Right of information
Article 112 Obligation to object
Article 113 Obligation to perform tasks instead of the municipality
Article 114 Appointment of a commissioner
Article 115 Expert supervisory authorities
Article 116 Powers of expert supervision
Article 117 Permit authorities
Article 117a Exceptional permits
The municipalities are original regional authorities that are entitled to organise and administer local matters within the framework of legislation. They form the basis of the state and democratic life.
(1) The municipalities shall be entitled to their historical names.
(2) Due to an urgent public need the government may change the name of a municipality or a part of a municipality or may revoke the name of a municipality after hearing the municipality council and the municipality citizens concerned.
(3) After hearing the citizens of the municipality concerned the government shall determine the name of a municipality that is to be newly formed. After hearing the municipality council and the municipality citizens concerned the government may give a name to an inhabited part of a municipality.
(4) With the agreement of the government municipalities may add a designation to their name or the name of a part of a municipality that refers to its history or its current significance or to its geographical location. A municipality may add a designation named in Article 7 para. 1 of the Local Tax Act (Kommunalabgabengesetz – KAG) or the designation Bad (spa) to its name or the name of a part of a municipality if recognition pursuant to Article 7 para. 4 KAG has been granted to the municipality or the part of the municipality.
(5) The decision (paras 2 and 3) and agreement (para. 4) shall be published in the Official Gazette.
(1) Towns and markets are those municipalities that bear this designation according to current law or that have been granted the designation by the State Ministry of the Interior.
(2) The designation town or market may be granted only to municipalities that correspond to this designation in accordance with population, type of settlement and economic circumstances.
(3) The City of Munich shall bear the designation Land capital.
(1) The municipalities may use their historical coats of arms and flags. Changes to existing coats of arms and flags and the adoption of new coats of arms and flags shall require the agreement of the Government.
(2) Municipalities with their own coats of arms shall incorporate them in official seals. Other municipalities shall incorporate the minor State coat of arms in their official seals.
(3) Third parties may use coats of arms and flags of the municipalities only with the permission of the municipality.
(1) The municipalities shall either belong to a district or not belong to a district.
(2) Those municipalities that do not belong to a district when this Law enters into force shall retain this status.
(3) With the agreement of the Landtag, municipalities with more than 50,000 inhabitants and a corresponding significance may be declared not to belong to a district by means of a statutory ordinance from the State Government after the district parliament has been heard. In this connection, the operating effectiveness of the district must be taken into account. The statutory ordinance may specify financial obligations vis-à-vis the district for the municipality leaving the district. Furthermore, matters relating to property rights shall be governed by an agreement between the district and municipality leaving the district. Operative effect shall be directly granted to this agreement at the time specified in it, however at the earliest when the statutory ordinance enters into force. If an agreement does not come about, the administrative court and, in the case of an appeal, the Higher Administrative Court shall act as the courts of arbitration.
(1) For reasons of the public wellbeing, municipalities not belonging to a district may be incorporated into a district upon their own application or ex officio after the municipality has been heard by means of a State Government statutory ordinance with the agreement of the Landtag. The district must be heard in advance; the citizens of the municipality shall be given an opportunity to express their opinion on incorporation by means of a secret ballot.
(2) The district shall be obliged to take over institutions previously operated by the municipality upon the request of the incorporated municipality if the operation of the said installation is generally part of the duties of a district. Debts from loans for these installations must not be taken over by the district if and to the extent that taking on these debts is not reasonable, especially if excessively high loans have been taken out for the installations. The first and second sentences shall apply mutatis mutandis to membership of the incorporated municipality in a special purpose association whose tasks generally belong to the tasks of a district. The district shall be obliged to employ municipality staff, whose work is transferred to the district, upon their own request or upon the request of the incorporated municipality in analogous application of Article 128 of the Framework Act on Civil Service Law. Article 5 para. 3 fourth to sixth sentences shall apply mutatis mutandis.
(3) When the statutory ordinance enters into force (para. 1 first sentence) the town that previously did not belong to the district shall become a large district town. A municipality may relinquish the rights of a large district town; after hearing the district parliament the State Ministry of the Interior shall determine by means of statutory ordinance the point in time at which the dispensation shall take effect.
(4) Municipalities with more than 30,000 inhabitants may be declared to be a large district town upon application and after a hearing in the district parliament by means of a statutory ordinance from the State Ministry of the Interior if their operating and administrative capacity guarantee that they can fulfil the tasks of a large district town correctly.
(1) The municipalities shall be entitled to fulfil all public tasks within their territory. Exceptions shall require legislation.
(2) The municipality tasks are either their own matters or transferred matters.
(1) The municipalities’ own sphere of activity shall include all matters of the local community (Article 83 para. 1 of the Constitution).
(2) In matters in their own sphere of activity the municipalities shall act at their own discretion. They are bound only to the legal provisions.
(1) The transferred sphere of activity of the municipalities shall encompass all matters assigned by law to the municipalities for them to manage on behalf of the state or other institutions under public law.
(2) The responsible state authorities may issue instructions to the municipalities as regards the performance of transferred matters.
(3) Matters for independent management can also be transferred to the municipalities, in particular to municipalities not belonging to a district. Article 7 para. 2 shall apply mutatis mutandis in this connection.
(4) When matters are being assigned the necessary funds shall be made available at the same time.
(1) A municipality not belonging to a district shall perform all the tasks in the transferred sphere of activity that would otherwise be performed by the chief administrative officer’s office as the lowest state administrative authority; it is to this extent district administrative authority. Furthermore, it shall perform the tasks of the own and transferred spheres of activity that are the tasks of the districts.
(2) In the transferred sphere of activity the large district town shall perform tasks that are otherwise to be performed by the chief administrative officer’s office as the lowest state administrative authority to the extent that is generally determined by a statutory ordinance from the State Government; it is to this extent the district administrative authority. In the statutory ordinance pursuant to Article 5a para. 1 or in a statutory ordinance from the State Ministry of the Interior further tasks of the lowest state administrative authority can be transferred to the large district town and, upon application, with the agreement of the district parliament individual tasks of the transferred sphere of activity of the district.
(1) Every part of state territory is assigned to a municipality in principle. The entirety of the plots of land belonging to a municipality form the municipality territory.
(2) The municipalities shall be entitled to continued existence and their territory notwithstanding the provision of Article 11 of this Law.
(1) Those parts of state territory not assigned to any municipality shall be deemed territory not belonging to a municipality (gemeindefreie Gebiete/ausmärkische Gebiete).
(2) Those tasks that have to be fulfilled for reasons of the public being and which belong to the own sphere of activity in municipalities belonging to a district shall be fulfilled by the proprietor of a plot of land at his own expense in territory not belonging to a municipality. If the plots of land belong to different proprietors they shall fulfil tasks together and bear the costs in proportion to the size of the area of their plots of land in the territory not belonging to the municipality; land used for forestry is to be accounted at two thirds and low quality agricultural land (particularly rough pastures, litter meadows and waste land) at one third. The proprietors of the plots of land can agree on a different distribution of the tasks and the costs with the approval of the supervisory authority if this does not result in a threat to the fulfilment of the tasks.
(3) If it is necessary for the correct fulfilment of the tasks pursuant to para. 2 of this Article, the supervisory authority can oblige the proprietor of the largest plot of land to be accounted to fulfil the tasks in the entire territory not belonging to a municipality; the other proprietors of plots of land must contribute to the costs that arise proportionately according to the size of their plots of land. If the costs are not reimbursed within three months the supervisory authority shall specify reimbursement sums for the individual proprietors of the plots of land and shall collect them for the largest proprietors as administrative costs.
(4) If the cost distribution according to the size of the plots of land (para. 2 second sentence) is a particular hardship for individual proprietors and if an agreement pursuant to para. 2 third sentence of this Article does not come into being upon application of one party involved within a deadline of three months to be set by the supervisory authority, the supervisory authority shall specify the portions of the costs to be borne by the individual proprietor of the plots of land. Para. 3 second sentence of this Article shall apply mutatis mutandis.
(5) In territory not belonging to a district the sovereign powers that arise in the municipality territory of the municipalities belonging to a district are exercised by the chief administrative officer’s office as the lowest state administrative authority. Furthermore, this office shall perform all tasks that are part of the transferred sphere of activity of a municipality.
(6) Paras 2 to 5 of this Article shall not apply insofar as fulfilment of the tasks of the own sphere of activity or exercising of sovereign powers and the performance of tasks of the transferred sphere of activity in territory not belonging to a municipality are otherwise regulated by special statutory ordinances.
(7) The supervisory authority for territory not belonging to a municipality for tasks pursuant to paras 2 to 4 of this Article shall be the chief administrative officer’s office as the lowest state administrative authority. Articles 108, 109 para. 1 and Articles 111 to 113 of this Law shall apply mutatis mutandis to supervision.
(8) Territory not belonging to a municipality or parts thereof shall be designated by the Government.
(1) Territory not belonging to a municipality or parts thereof shall be incorporated into neighbouring municipalities upon application if no urgent reasons of public wellbeing preclude this. If several municipalities apply for incorporation the decision on whether and to what extent the applications shall be granted shall be based on reasons of public wellbeing. For the same reasons decisions pursuant to the first and second sentences of this paragraph can be made ex officio; in this process new municipalities can also be formed. If there are urgent reasons of public wellbeing, uninhabited municipality territory or parts thereof can be incorporated into territory not belonging to a municipality or be declared new territory not belonging to a municipality either upon application or ex officio. Prior to the amendment the municipalities and districts concerned as well as the proprietors of the plots of land not belonging to a municipality in the area to be changed must be heard. A secret ballot can be ordered for district citizens who have been resident in the area to be changed for at least six months.
(2) Changes to the composition or the territory of municipalities can be made notwithstanding para. 1 of this Article,
- 1. if there are reasons of public wellbeing and the municipalities concerned are in agreement
2. against the will of the municipalities concerned if there are urgent reasons of public wellbeing.
The municipalities concerned are to be heard prior to measures pursuant to first sentence indent 2 of this paragraph.
(3) A municipality can be formed from separation from an existing municipality if
- 1. there are reasons of public wellbeing,
2. the municipality to be formed has at least 2,000 inhabitants or will be a member municipality in an administrative community and
3. the existing municipality agrees by a two-thirds majority of the municipality council.
(4) The municipality citizens who shall be changing municipality shall be given the opportunity to express their opinion on the change in a secret ballot.
(1) The changes named in Article 11 shall be enacted by a Law if they lead to a change in the composition of a municipality or the formation of a new municipality. The other changes named in Article 11 shall be enacted by a statutory ordinance; this shall be issued by the chief administrative officer’s office if only parts of the municipality inhabited by no more than 50 inhabitants are being changed, otherwise by the Government. The Government may also change parts of municipality territory with less than 50 inhabitants in the statutory ordinance for which it is responsible if the municipality change is legally or materially associated with the other change.
(2) The issues of further validity of local law associated with the change shall be regulated by the responsible authority by means of a statutory ordinance. If the change has been enacted by a Law the responsible authority shall be the Government. Insofar as no provision has been made under the first sentence of this paragraph, local law shall continue to apply in its previous area of validity.
(1) The responsible authority shall regulate the further legal and administrative questions associated with the change. In particular it can order new elections or additions to the municipality representative body for the remainder of the electoral period. If the remainder of the electoral period is less than one year, the responsible authority can determine that the electoral period of the newly elected representative body shall not end until the end of the following electoral period.
(2) The property rights situation shall be regulated by an agreement between the municipalities concerned. The agreement shall take immediate operative effect at the point in time specified therein, however no sooner than the legal effect of the change. If an agreement is not reached, the administrative court and, in the case of an appeal, the Higher Administrative Court shall act as the courts of arbitration.
(3) Insofar as residence is a precondition for rights and duties, in the cases under Article 11 residence in the territory to be changed shall be deemed to be residence in the new municipality.
(1) Before an uninhabited municipality is dissolved and its territory is attached to territory not belonging to a municipality or is declared territory not belonging to a municipality, the Government shall regulate its property rights situation. The regulation shall take immediate operative effect upon the dissolution of the municipality.
(2) The fixed administrative assets of the municipality shall be transferred to ownership in fractional shares for the proprietors of plots of land situated in the future territory not belonging to a municipality whose interests or measures have led to the change under para. 1 of this Article, insofar as they need these assets to fulfil their public duties. The co-ownership shares shall be determined according to the ratio of the unit values of the plots of land mentioned in the first sentence of this paragraph. The liabilities entered into for the purposes of the fixed administrative assets shall be transferred to the proprietors of the plots of land named in the first sentence as joint and several debtors at the same time as the transfer of these assets. The second sentence of this paragraph shall apply mutatis mutandis to the obligation of the proprietors of the plots of land among themselves.
(3) The remaining assets of the municipality shall be transferred to the district; the other liabilities and those not covered by para. 2 third sentence of this Article shall be transferred to the district up to the value of the assets transferred to it, otherwise to the proprietors of the plots of land mentioned in para. 2 first sentence of this Article as joint and several debtors. Para. 2 second sentence of this Article shall apply mutatis mutandis to the obligation of the proprietors of the plots of land among themselves.
(4) If the operating capacity or the assets of another municipality or other body under public law is impaired by the dissolution of a municipality, the district to which the other municipality assets were transferred shall be obliged to ensure compensation for this. Insofar as the assets transferred to the district are not sufficient, the proprietors of the plots of land mentioned in para. 2 first sentence of this Article shall be obliged in this respect. Para. 2 second sentence of this Article shall apply mutatis mutandis to the obligation of the proprietors of the plots of land among themselves.
(5) If a new municipality is formed from the entire territory or a part of a dissolved municipality that was incorporated into territory not belonging to a municipality or was declared to be territory not belonging to a municipality, or if such territory is incorporated in a municipality, the Government shall transfer the fixed administrative assets situated on this territory, which had been transferred to the proprietors of the plots of land on this territory, to the municipality free of charge. Furthermore, it shall transfer to the municipality the liabilities transferred pursuant to para. 2 third sentence and para. 3 first sentence of this Article. The regulation shall take immediate operative effect with the non-appealability of the Government’s order.
(6) The State Ministry of the Interior shall be empowered by statutory ordinance to regulate the further details of the procedure and to adopt provisions on the appointment and tasks of a municipality administrator for municipalities being dissolved.
(1) Statutory ordinances pursuant to Article 12 of this Law, if they are issued by the chief administrative officer’s office, shall be promulgated in the Official Gazette of the Government pursuant to Article 51 para. 1 of the Land Criminal and Ordinance Act in conjunction with Article 20 para. 2 of the District Ordinance if they are issued by the Government.
(2) For changes pursuant to Article 11 of this Law and legal acts that are necessary because of these changes, charges (in particular the costs pursuant to the Court Costs Act and the Costs Law including certification and authentication fees) shall not be made provided that an exemption is permissible under Land law. Expenses shall not be reimbursed.
(1) All the inhabitants of a municipality are municipality members. They shall have the same rights and duties vis-à-vis the municipality. Exceptions shall require a special title.
(2) Municipality citizens are those municipality members who are entitled to vote in the municipality elections in their municipality.
(1) The municipalities may grant the freedom of the municipality to people who have particularly earned this honour.
(2) The municipalities may revoke the freedom of the municipality due to unworthy conduct; the decision shall require a two-thirds majority of municipality council members with voting rights.
The municipality citizens shall elect the municipality council and, by majority voting, the mayor.
(1) In every m unicipality the mayor shall call a citizens’ assembly at least once a year, more frequently upon the request of the municipality council, to discuss municipality affairs. In larger municipalities citizens’ assemblies ought to be restricted to parts of the municipality territory.
(2) A citizens’ assembly must be held within three months if it is called for in writing by at least 5 per cent of the municipality citizens, or by at least 2.5 per cent of the municipality citizens in municipalities with over 10,000 inhabitants, stating the agenda; the citizens’ assembly can decide upon a supplement to the agenda if it is applied for in writing to the municipality at the latest one week before the citizens’ assembly. The agenda may only contain municipality matters. The first and second sentences of this paragraph shall apply mutatis mutandis to those parts of a municipality that were still independent municipalities when this Law entered into force and, in towns with over 100,000 inhabitants, to town districts; the items on the agenda should above all refer to the part of the municipality or the town district. An application to call a citizens’ assembly pursuant to the first and third sentences of this paragraph can only be made once a year.
(3) In principle, only municipality citizens may take the floor. Exceptions may be decided by the citizens’ assembly; the chairman ought to give the floor to a representative of the supervisory authority upon request. The assembly shall be chaired by the mayor or a representative nominated by him.
(4) Recommendations from the citizens’ assembly must be dealt with by the municipality council within a period of three months. This deadline and the deadline pursuant to para. 2 first sentence of this Article shall be suspended during the holiday period pursuant to Article 32 para. 4 first sentence of this Law.
(1) The municipality citizens can apply for a citizens’ decision concerning matters relating to the municipality’s own sphere of activity (petition for a referendum).
(2) The municipality council can decide with a two-thirds majority of its members with voting rights that a citizens’ decision shall be held for a matter of its own sphere of activity.
(3) A citizens’ decision shall not be held concerning matters that are the responsibility of the mayor by virtue of a law, concerning matters of the internal municipality administration, concerning the legal situation of the municipality council members, the mayor or the municipality employees or concerning the financial regulation.
(4) The petition for a referendum must be submitted in writing to the mayor and must contain a question that can be answered with ”yes” or ”no” and a justification; it must also nominate three representatives who are entitled to represent the signatories.
(5) The petition for a referendum may only be signed by persons who are municipality citizens on the day of submission of the application. The list of electors as of this date is decisive in determining the number of valid signatories.
(6) A petition for a referendum has come into being if it is supported by the following number of municipality citizens, in relation to the number of people entitled to vote (quorum):
Inhabitants in the municipality Quorum for the petition for a referendum
- up to 10,000 10 %
up to 20,000 9 %
up to 30,000 8 %
up to 50,000 7 %
up to 100,000 6 %
up to 500,000 5 %
over 500,000 3 %
(7) If a town district in a town that is to be divided into town districts pursuant to Article 60 para. 1 of this Law is particularly affected by a measure, the municipality citizens of this town district can apply for a citizens’ decision on this measure. This petition for a referendum must be signed by at least 25 per cent of the municipality citizens in the town district. The provisions of para. 1 to 5 of this Article shall apply mutatis mutandis.
(8) After submission to the mayor of one third of the signatures required pursuant to para. 6 of this Article a decision contrary to the municipality citizens’ referendum may not be taken within a period of two months, nor must the implementation of such a decision begin, unless there were legal obligations in this connection for the municipality at the time of submission. This legal effect shall apply from the moment of submission of the petition for a referendum until the implementation of the citizens’ decision.
(9) The municipality council shall decide upon the permissibility of a petition for a referendum within two months of receipt of the application. The representatives of the petition for a referendum may appeal against a rejection of the petition for a referendum.
(10) If the petition is deemed to be permissible, the citizens’ decision must be implemented within three months. The costs of the citizens’ decision shall be borne by the municipality. Every municipality citizen shall be entitled to vote. The possibility of postal voting shall also be ensured.
(11) If a town district committee has been formed in a town district, a citizens’ decision can take place within this town district concerning matters that have been transferred to the town district committee for decision. Every municipality citizen resident in the town district shall be entitled to vote. The application shall be submitted in writing to the town district committee to be passed on to the town council. The provisions of paras 2 to 16 of this Article shall apply mutatis mutandis.
(12) In a citizens’ decision the question posed is decided by the majority of the valid votes casts. In the case of a tie the question shall be deemed to have been answered with ”no”.
(13) The citizens’ decision shall have the effect of a decision by the municipality council. It can be amended within three years only by another citizens’ decision.
(14) The citizens’ decision shall not be carried out if the municipality council decides to implement the measure requested in the petition for a referendum.
(15) The opinions of the municipality council and of the representatives of the petition for a referendum concerning the issue of the citizens’ decision may be portrayed in municipality publications and events only to the same extent. For the purposes of informing the citizens the municipality shall offer those involved the same scope as in municipality elections.
(16) The result of the citizens’ decision shall be made known to the municipality citizens in the manner customary for the municipality.
(1) Those municipality citizens who can be elected to municipality offices shall participate in the municipality administration in line with the legal provisions. They shall be obliged to take on municipality honorary positions.
(2) The municipality citizens who can be elected may only refuse to take on honorary positions for important reasons. In particular, an important reason shall be if the person concerned is prevented from assuming the position because of his age, his professional or family situation, his health or any other personal circumstances.
(3) The municipality council shall decide whether there is an important reason. It can punish an unjustified refusal to assume honorary positions with a fine of up to five hundred Deutsche Mark.
(4) The provisions in paras 2 and 3 of this Article shall apply mutatis mutandis to resignation from honorary positions; special legal provisions shall apply to the resignation of an honorary mayor.
(1) Municipality citizens working on an honorary basis shall be obliged to perform their tasks conscientiously.
(2) They shall observe secrecy about the matters that come to their attention while performing their honorary activities; this shall not apply to official notifications or facts that are obvious or are not significant enough to require any secrecy. They may not use the knowledge of matters to be kept secret pursuant to the first sentence of this paragraph without authority. Upon the request of the municipality council they must release official documents, drawings, pictures and recordings of any kind pertaining to official procedures, even if they are reproductions. These obligations shall continue to exist after termination of office in the honorary position. The obligation to release information shall also apply to surviving dependents and heirs.
(3) Municipality citizens working in an honorary position may not issue statements in front of a court or outside a court or issue declarations on matters upon which they have to observe secrecy without permission. The mayor shall grant permission. The legal supervisory authority shall decide upon the refusal of permission to make a statement as a witness; furthermore Article 84 paras 3 and 4 of the Bavarian Administrative Procedures Act shall apply.
(4) Anyone who culpably acts against the obligations of paras 1, 2 or 3 first sentence of this Article can, in individual cases, be fined up to 500 Deutsche Mark by the municipality council and in the case of the unauthorised release of personal data up to 1,000 Deutsche Mark; responsibility pursuant to other legal provisions shall remain unaffected. Liability vis-à-vis the municipality shall be in line with the provisions applicable to the mayor and shall only come into play if intention or gross negligence is involved. The municipality shall release the person responsible from liability if the liability is directly claimed by third parties and the damage was neither intentional nor grossly negligent.
(5) The special legal provision shall apply to honorary mayors.
(1) Municipality citizens who work in honorary positions shall be entitled to appropriate recompense. Further details shall be determined by means of bylaws. The recompense cannot be refused. The entitlement shall not be transferable.
(2) Municipality citizens working in an honorary position shall, furthermore, receive the following payments for essential participation in meetings, discussions or other events that are essential for fulfilling their honorary position according to the further details in the bylaw:
- 1. Salaried employees and blue-collar workers shall be recompensed for proved loss of income.
2. The self-employed can receive recompense for loss of income for the time they were not at work. The recompense shall be based on a flat rate set in the bylaw. Journey times can be taken into account to an appropriate extent.
3. People who are not entitled to recompense according to indents 1 and 2 but who are put at a disadvantage in the professional or domestic sphere, that can only be recompensed by catching up on missed work or by using outside assistance, may receive recompense. The recompense will be based on a flat rat laid down in the bylaw. The flat rat may be higher than the flat rate in indent 2. Journey times can be taken into account to an appropriate extent.
(3) Paras 1 and 2 shall not apply to the mayor or to any of the professional deputy mayors.
(4) Reimbursement for activities that municipality citizens in an honorary position perform by virtue of their office or upon the proposal or on the instigation of the municipality in a supervisory board, board of management or similar body of a private or public company shall be paid to the municipality provided that they exceed a total amount 9,600 Deutsche Mark in a calendar year. This amount shall be doubled for the chairman of a supervisory board or comparable body of the companies mentioned in the first sentence of this paragraph and shall increase by 50 % for his deputy. When the amount to be paid is being set, expenses that have been proved to have been incurred in association with the activity shall be deducted from the reimbursement. The regulation on surrender of payments and civil servant secondary occupation legislation shall not apply.
(1) All members of a municipality are entitled under the existing general provisions to use the public institutions of the municipality. They shall be obliged to pay the municipality charges.
(2) Several technically independent installations of a municipality that serve the same purpose can be one institution or individual legally independent institutions. The municipality shall decide by means of bylaw; if it does not make any provision there shall be deemed to be only one institution.
(3) People living outside the municipality shall have the same rights and obligations for their land or their commercial premises in the municipality territory vis-à-vis the municipality as landowners and commercial operators resident in the municipality.
(4) The provisions in paras 1 and 3 of this Article shall apply mutatis mutandis to legal persons and associations of persons.
(5) According to the existing provisions everyone shall be entitled to use the public institutions offering general services.
(1) The sovereign power of the municipality shall comprise the municipality territory and its entire population (municipality sovereignty).
(2) The municipalities shall be entitled to regulate their financial matters themselves within the framework of a legal provision. In particular they shall be empowered to raise taxes within the limits of the law in order to cover the funds required for them to fulfil tasks, provided that their other income is not sufficient. For this purpose they shall be granted the right to raise their own taxes and other levies to a sufficient degree.
(3) The state shall assign the municipalities further funds within the context of the state budget in order to perform their tasks.
The municipalities can issue bylaws to regulate their own affairs. Bylaws to regulate transferred matters, ”furnished” bylaws (Article 24 para. 2) and ordinances shall only be permissible in the cases provided for by law. The special legal basis shall be stated in such bylaws and in ordinances.
(1) In the bylaws the municipalities can in particular
- 1. regulate the use of their property and their public institutions,
2. prescribe access to water supply, waster water removal, waste management, street cleaning and other facilities serving health for reasons of the public wellbeing and, subject to the proviso of other legal provisions, make the use of these facilities as well as of undertakers and slaughter houses obligatory,
3. make it obligatory for plots of land that are being built on for the first time and for areas undergoing renovation to be connected to facilities for provision with district heating or gas and to use such energy, provided that the connection to the district heating or gas supply is necessary in order to avoid risks, considerable pollution or other considerable disadvantages as a result of air pollution; plots of land with heating installations that guarantee emission-free operation without connection to the district heating or gas supply shall be excluded from this compulsory connection and use,
4. municipality services (Hand- und Spanndienste) to fulfil municipality tasks taking sufficient account of the personal circumstances of the people obliged.
(2) In the bylaws the default power pertaining to the costs of tardy obligations can be declared permissible. In the cases of para. 1 indents 1 to 3 of this Article acts contrary to the indents can be punishable as administrative offences subject to a fine in the bylaw (”furnished” bylaw). In bylaws pursuant to para. 1 indents 2 and 3 it can be prescribed that proprietors shall tolerate the installation and laying of local lines for water supply, waster water removal and provision with district heat and gas on their premises if their premises is connected or is to be connected to the installation, is used in economic connection with the installation or if the option of using the installation for the premises is advantageous in any other way; the toleration obligation shall not apply if using the premises would disadvantage the proprietor more than necessary or unreasonably.
(3) A compulsion of use in accordance with para. 1 indent 2 and para. 2 of this Article may not be decreed to the disadvantage of church institutions, recognised religious communities or any other philosophical communities, whose aims do not contradict the generally applicable laws. This is subject to the condition that these institutions serve direct religious or philosophical purposes.
The bylaws of municipalities belonging to a district ought to be submitted to the legal supervisory authority (Article 110) at the latest four weeks before they enter into force.
(1) Bylaws shall enter into force one week after their promulgation. In the bylaw another point in time can be determined, in ”furnished” bylaws and other bylaws that may not be issued with retrospective force, however, this can be the day following promulgation at the earliest.
(2) Bylaws must be copied and officially promulgated in the municipality’s official gazette; the official gazette of the administrative community shall be deemed to be the official gazette of the municipality if the municipality that belongs to an administrative community does not have an official gazette of its own. If the municipality does not have an official gazette within the meaning of the first sentence of this paragraph, the bylaws are to be published in the official gazette of the district or the chief administrative officer’s office, otherwise in other publications that appear regularly; the official promulgation can also be effected by the bylaw being submitted to the municipality administration and the submission being made public in the generally determined places for public promulgations (municipality notice boards) or publication in a daily newspaper.
(1) The municipalities can issue the decrees required for the implementation of laws, statutory ordinances and bylaws within the own and the transferred sphere of activity to certain people and enforce them under application of the legal means of compulsion.
(2) Administrative acts, summons or other notifications that are to be made public officially, publicly or in the manner standard for the location on the basis of statutory provisions outside this law shall be made public by the municipality in the same way as the bylaw. These plans, maps or other pieces of evidence are part of a notification in accordance with the first sentence of this paragraph, the promulgation can also be effected notwithstanding other provisions by the notification and the pieces of evidence being made available for public inspection in the municipality administration for a period of two weeks, the substance of the notification as well as the place and time of its public availability shall be made public at least one week previously in accordance with the first sentence of this paragraph.
Fines and on-the-spot cautionary fines that are set on the basis of ”furnished” bylaws and ordinances shall be paid into the municipality funds.
The municipality shall be administered by the municipality council provided that the mayor does not act independently (Article 37).
(1) The municipality council is the representative body of the municipality citizens. In towns it shall be called town council, in market towns it shall be called market municipality council (Marktgemeinderat)
(2) The municipality shall decide within the framework of Article 29 on all matters that are not determined for the decision-making committees (Article 32)
(3) The municipality council shall supervise the entire municipality administration, in particular the implementation of its decisions.
(1) The municipality council shall be made up of the mayor and the municipality council members.
(2) The community council members shall be appointed in an honorary position for a period of six years. Their number including deputy mayors, shall be as follows in municipalities
- with up to 1,000 inhabitants 8,
with more than 1,000 up to 2,000 inhabitants 12,
with more than 2,000 up to 3,000 inhabitants 14,
with more than 3,000 up to 5,000 inhabitants 16,
with more than 5,000 up to 10,000 inhabitants 20,
with more than 10,000 up to 20,000 inhabitants 24,
with more than 20,000 up to 30,000 inhabitants 30,
with more than 30,000 up to 50,000 inhabitants 40,
with more than 50,000 up to 100,000 inhabitants 44,
with more than 100,000 up to 200,000 inhabitants 50,
with more than 200,000 up to 500,000 inhabitants 60
The number of honorary municipality council members including deputy mayors shall be 70 in the city of Nuremberg and 80 in the Land capital Munich. If the number of inhabitants in the municipality falls below one of the limits named in the second sentence of this paragraph, the number of honorary municipality council members shall be reduced to the legally prescribed number only in the next but one electoral period
(3) In municipalities with up to 10,000 inhabitants, spouses, parents and children as well as siblings may not belong to the municipality council at the same time. If such a family relationship exists or comes about between the mayor and a member of the municipality council, the latter shall resign. This shall also apply in the event of a new election or by-election of the mayor. If several municipality council members are involved the one with the lowest number of votes shall resign. In the event of an identical number of votes the decision shall be taken by lot.
(4) The following cannot be voluntary mayors or voluntary municipality council members in any municipality:
- 1. Civil servants and salaried employees whose main employment is in this municipality
2. Civil servants and salaried employees whose main employment is in an administrative community to which the municipality belongs,
3. Senior civil servants and senior salaried employees of legal persons or other organisations under public or private law in which the municipality holds a participation of over 50%; a participation in the voting rights is sufficient.
4. Civil servants and salaried employees of the legal supervisory authority that is directly involved with issues of legal supervision, with the exception of the elected deputy of the chief administrative officer.
The first sentence shall not apply if the civil servant is granted leave without pay for the period of the honorary office or if his rights and obligations from his employment are suspended due to election to a legislative body; this shall apply mutatis mutandis to salaried employees. The chief administrative officer cannot be an honorary member of a municipality council in a municipality that does not belong to a district.
(5) All municipality council members shall take a ceremonial oath in the first public session after their election. The oath shall be worded as follows:
”I swear loyalty to the Basic Law for the Federal Republic of Germany and the Constitution of the Free State of Bavaria. I swear to obey the laws and to perform my official duties conscientiously. I swear to observe the rights of local government and to fulfil its duties, so help me God.”
The oath can also be taken without the words ”so help me God”. If a municipality council member states that he cannot swear this oath for reasons of faith or conscience he has to say the words ”I vow” instead of the words ”I swear” or to introduce the vow with a corresponding, equivalent affirmation that shows the acknowledgement of his religious community or the conviction of his philosophical community. The mayor shall accept the oath. The oath shall not be sworn by municipality council members who have been re-elected as municipality council members of the same municipality following their period of office.
(1) The municipality council can form advisory committees.
(2) The municipality council can transfer the administration of specific areas of business or the performance of individual matters to decision-making committees (municipality senates). The following cannot be transferred to decision-making committees
- 1. decision-making concerning matters for which the municipality requires a permit,
2. the issuing of bylaws and ordinances, with the exception of building plans and other bylaws in accordance with the provisions of the Building Code or the Act on the Building Code (Maßnahmengesetz zum Baugesetzbuch),
3. decision-making about the general regulation of remuneration of municipality employees and on matters relating to civil service, remuneration, social security and disciplinary legal matters for mayors and the professional municipality council members, provided that the Act on Local Authority Elected Civil Servants or the Bavarian Disciplinary Law does not state otherwise,
4. decision-making about the financial regulation and about subsequent financial regulations (Articles 65 and 68),
5. decision-making about the financial plan (Article 70),
6. setting the annual accounts and the financial statements of the companies and the hospitals with commercial accounting as well as decision-making about formal approval (Article 102),
7. decision-making about the setting-up, expansion or closure of economic companies belonging to the municipality and about participation in private sector companies (Articles 89 and 91),
8. matters otherwise reserved for the municipality council with regard to the municipality’s own companies (Article 95),
9. the appointment and dismissal of the head of the auditing office, his deputy and the auditors, the issuing of special auditing commissions to the auditing office and the appointment of the final auditor (Articles 104 and 107),
10. decision-making about changes to inhabited municipality territory.
(3) Decision-making committees shall perform the tasks transferred to them instead of the municipality council unless the mayor or his deputy in the committee, a third of the committee members entitled to vote or one quarter of the municipality council members applies for a review by the municipality council within a week. Insofar as a decision of a committee affects the rights of third parties it shall only become effective after a period of one week has elapsed.
(4) The municipality council can determine a holiday period of up to 6 weeks in its rules of procedure. For the duration of the holiday period a holiday committee shall be formed in line with the provisions applying to decision-making committees, which performs all tasks for which the municipality council or a decision-making committee is otherwise responsible; paras 2 and 3 shall not apply. The holiday committee can, however, not perform any tasks that are the duty of the work and services committee or which have to be performed by special committees by virtue of a law or that may not be performed by the holiday committee according to the rules of procedure.
(5) The municipality council may dissolve committees at any time.
(1) The composition of the committees shall be governed by the municipality council in the rules of procedure (Article 45). In this connection the municipality council has to take account of the varying strengths of the parties and groups of electors represented in it. If several parties or groups of electors have equal claim to a seat, instead of a decision by lot it shall also be permissible to use the number of votes given for this party or group of electors in the election as a basis for the seat. It shall not be permissible to nominate other people than those nominated by the parties or groups of electors. Municipality council members can join together to send joint representatives into the committees.
(2) The committees shall be chaired by the mayor, one of his deputies or a municipality council member nominated by the municipality council.
(1) The mayor is a civil servant of the municipality. In municipalities not belonging to a district and in large district towns he shall bear the designation Lord Mayor. In these municipalities and in municipalities belonging to a district with more than 5,000 inhabitants the mayor is a temporary civil servant (professional mayor).
(2) In municipalities belonging to a district with more than 5,000 inhabitants, but with a maximum of 10,000 inhabitants, the mayor shall be an honorary civil servant (honorary mayor) if so determined by the municipality council by means of a bylaw at the latest two months before a mayoral election. In municipalities with up to 5,000 inhabitants the mayor shall be an honorary civil servant, unless the municipality council determines by means of bylaw at the latest two months before a mayoral election that the mayor is to be a temporary civil servant.
(3) The last recorded number of inhabitants published by the Land office for Statistics and Data Processing for more than six months before the mayoral election is decisive.
(4) Bylaws pursuant to para. 2 of this Article shall also apply to future periods of office unless they are repealed by the municipality council two months at the latest before a mayoral election.
(5) The period of office of the mayor shall be six years.
(6) Further details on the civil service relationship of the mayor are determined in the Act on Local Authority Elected Civil Servants.
(1) The municipality council shall elect from its midst one or two deputy mayors for the duration of its electoral period. Deputy mayors shall be honorary civil servants of the municipality (honorary deputy mayor) unless the municipality council determines by means of a bylaw that they are to be temporary civil servants (professional deputy mayors).
(2) Honorary members of the municipality council who fulfil the conditions for the election to the post of mayor can be elected to the post of deputy mayor. Article 51 para. 3 shall apply to the election of the deputy mayor.
(3) Further details on the civil service relationship of the mayor are determined in the Act on Local Authority Elected Civil Servants.
(4) If the civil service status of a deputy mayor ends during the electoral period of the municipality council a new election shall take place within three months for the rest of the electoral period; the same shall apply if the suspension of the rights and duties from the civil service status comes into play due to election to a legislative body.
The mayor shall chair the municipality council and execute its decisions. Insofar as he is personally affected his deputy shall act.
(1) The mayor shall perform the following tasks on his own responsibility
- 1. the ongoing tasks that have no fundamental significance for the municipality and do not give rise to any major obligations,
2. the sovereign tasks transferred to the municipalities by a federal law or on the basis of a federal law concerning matters of defence, including recruitment for military service and the protection of the civilian population, provided that the municipality council is not responsible for decisions relating to budgetary or personnel law,
3. matters that have to be kept secret in the interest of the security of the Federal Republic or one of its Länder,
The municipality council can draw up guidelines for the ongoing matters in accordance with first sentence indent 1 that do not come under indents 2 and 3.
(2) The municipality council can transfer other matters for independent handling by the mayor by means of the rules of procedure; this shall not apply to the issuing of bylaws or for matters that cannot be transferred to decision-making committees in accordance with Article 32 para. 2 second sentence. The municipality council cannot return matters to itself that have been transferred to the mayor; the right of the municipality council to revoke a transfer generally shall remain unaffected.
(3) The mayor shall be empowered to make urgent decisions instead of the municipality council or a committee and to take care of undeferrable business. He must inform the municipality council or the committee of this in the next session.
(4) The mayor shall be responsible for administrative supervision of the civil servants, salaried employees and blue-collar workers of the municipality.
(1) The mayor shall represent the municipality.
(2) Declarations by means of which the municipality shall be obliged must be in writing; this shall not apply to constantly recurring business of everyday life that are financially insignificant. The declarations must be signed by hand by the mayor or his deputy including his official title. They can also be signed by municipality employees on the basis of a power of attorney for the above mentioned requirements.
(1) The deputy mayors shall represent the mayor in the event of his incapacity in their order. The municipality council shall nominate from among the municipality council members the further deputies who are German within the meaning of Article 116 para. 1 of the Basic Law.
(2) Within the framework of the allocation of duties (Article 46) the mayor can transfer individual powers to the deputy mayors or, after hearing, to a member of the municipality council and, in matters of ongoing administration, to a municipality employee; any other transfer to an employee shall also require the agreement of the municipality council
In municipalities with more than 10,000 inhabitants the municipality council can elect professional municipality council members. They shall have an advisory vote in the meetings of the municipality council and its committees in matters of their area of activity.
(1) The professional municipality council members shall be elected for a maximum of six years and, on the basis of this election, be nominated temporary civil servants. Article 51 para. 3 shall apply to the election. Re-election shall be permissible.
(2) Further details on the civil service status of a professional municipality member are determined in the Act on Local Authority Elected Civil Servants.
(1) The municipalities must employ the administrative staff with suitable competence to ensure the correct course of business.
(2) Notwithstanding the obligation pursuant to para. 1 of this Article
- 1. municipalities not belonging to a district and large district towns must have as managerial employees at least one municipality civil servant with the qualification for higher administrative service or for position as a judge if the lord mayor does not have this qualification,
2. every municipality must have as managerial employees at least one municipality civil servant with qualification for higher administrative service if the mayor does not have at least this qualification and is professionally employed or if the municipality belongs to an administrative community.
(3) Municipality salaried employees with duties that are performed by state civil servants in comparable cases shall be appointed civil servants.
(1) The municipality council shall be responsible for
- 1. nominating the municipality civil servants, promoting them, seconding or transferring them to another employer, pensioning them and dismissing them,
2. appointing municipality salaried employees and blue-collar workers, promoting them and dismissing them.
The municipality council can transfer these powers to a decision-making committee (Article 32 paras 2 to 5), also in matters for which the municipality requires a permit.
(2) The municipality council can transfer powers pursuant to para. 1 first sentence to the mayor
- 1. for civil servants in lower and middle service, for salaried employees whose earnings are comparable to those of these civil servants and for blue-collar workers,
2. in municipalities not belonging to a district also for civil servants in higher service and the first two offices of the superior service and for salaried employees whose earnings are comparable to those of these civil servants.
Such a decision shall require a two-thirds majority of the members of the municipality council entitled to vote; if the decision is not repealed with this majority it shall apply until the end of the electoral period of the municipality council. Article 39 para. 2 shall apply.
(3) The superior of the municipality civil servants shall be the mayor.
(4) The working conditions, remuneration (salaries and wages) of the salaried employees and blue-collar workers must be appropriate. They are appropriate if they correspond to the federal collective agreement for public employees (Bundesangestelltentarifvertrag – BAT) for salaried employees and the federal umbrella agreement for blue-collar workers in local authority administrations and companies (Bundesmanteltarifvertrag für Arbeiter gemeindlicher Verwaltungen und Betriebe – BMTG) for blue-collar workers and the supplementary collective agreements in the versions applicable to local authority employers in Bavaria or collective agreements with broadly the same content.
The staffing schedule (Article 64 para. 2 second sentence) shall be adhered to. Deviations shall only be permissible within the framework of Article 68 para. 3 indent 2.
(1) The municipality council shall provide itself with rules of procedure.
(2) The rules of procedure must contain provisions on the deadline and the form of invitations to the meetings as well as on the course of business of the municipality council and its committees.
(1) Within the framework of the rules of procedure the mayor shall manage and allocate duties. The municipality council shall decide upon the allocation of duties among the members of the municipality council.
(2) The mayor shall prepare the items for deliberation. He shall call the municipality council together by citing the agenda with appropriate notice, for the first time directly after the start of the electoral period. The municipality council shall also be called together without undue delay when one quarter of the honorary municipality council members demands this in writing by designating the item for deliberation. The session must take place at the latest on the fourteenth day after the beginning of the electoral period or after receipt of the demand.
(1) The municipality council shall reach its decisions in sessions.
(2) It shall be competent to make decisions if all the members have been invited correctly and the majority of the members is present and entitled to vote.
(3) If the municipality council is called together for the second time to negotiate the same item, it shall be competent to make a decision without reference to the number of members who appeared. This provision must be referred to in the second invitation.
(1) The members of the municipality council shall be obliged to take part in the sessions and votes and to take on the duties allocated to them. No member may abstain from a vote.
(2) The municipality council can fine members who do not fulfil these obligations without satisfactory excuses with up to 200 Deutsche Mark in individual cases.
(3) If an honorary municipality council member still does not fulfil his duty after two recognised fines due to failure to take part in municipality council meetings within six months the municipality council can decree loss of office.
(1) A member cannot take part in deliberations and voting if the decision can bring a direct advantage or disadvantage to him, his spouse, a relation or a person related by marriage up to the third degree or a natural or legal person represented by him by virtue of a law or power of attorney. The same shall apply if a member has submitted an expert opinion in a capacity other than a public capacity.
(2) The municipality council shall decide whether these circumstances exist without the involvement of the person involved.
(3) The involvement of a member excluded due to personal interest shall only result in the invalidity of the decision if it was decisive for the result of the vote.
Members of the municipality council may assert claims for third parties vis-à-vis the municipality only as a legal representative.
(1) Decisions of the municipality council shall be made in open votes by means of the majority of those voting. The application shall be rejected in the event of a tie.
(2) No member of the municipality council may be pursued in court or officially at any time because of the way he voted or be called to responsibility in any other way outside the municipality council. Liability vis-à-vis the municipality shall not be excluded if the voting conduct is a deliberate infringement of duties. Responsibility pursuant to federal law provisions shall remain unaffected by this.
(3) Elections shall be held according to a secret ballot. They shall only be valid if all members are invited with the subject of the vote being stated and if the majority of them are present and entitled to vote. Anyone who receives more than half of the valid votes cast shall be elected. Negative votes and blank ballot papers shall be invalid. If the majority of the votes cast are invalid the election shall be repeated. If the majority of the votes cast is valid and if none of the applicants receive more than half of the valid votes cast, a runoff election shall be held between the two applicants who received the highest number of votes. In the event of a tie in the runoff election the decision shall be made by drawing lots.
(4) Para. 3 shall apply to all decisions of the municipality council that are designated as elections in this Law or in other legal provisions.
(1) The time and the location of municipality council meetings shall be made public in the manner standard for the location at the latest on the third day before the meeting and they shall include the agenda. Exceptions shall require the permission of the municipality council.
(2) The meetings shall be public unless consideration of the general wellbeing or of justified claims of individuals precludes this. The decision to exclude the public shall be discussed and taken in closed sessions.
(3) The decisions made in closed in sessions shall be made known to the public as soon as the reasons for secrecy no longer apply.
(4) The meetings shall take place in a room accessible to the general public.
(1) The chairman shall administer the order and exercise domestic authority. He shall be entitled to order the removal of listeners who disturb the order. With the agreement of the municipality council he can exclude from the meeting members who persistently greatly disturb the order.
(2) If a member who has already been excluded from an earlier meeting once again greatly disturbs the order within two months, the municipality council can prevent him from participating for two further meetings.
(1) Minutes are to be kept of the municipality council negotiations. The date and location of the meeting, the names of the municipality council members present and of those absent with the reason for their absence, the subjects dealt with, the decisions and the results of votes must be clearly seen in the minutes. Every member can demand that how he voted is entered into the minutes.
(2) The minutes are to be signed by the chairman and the secretary and be approved by the municipality council.
(3) The municipality council members can consult the minutes at any time and can receive copies of the decisions taken in public session. Every municipality citizen shall be able to consult the minutes of public sessions; the same shall apply to people living outside the municipality with regard to land they own or their commercial premises in the municipality territory.
(1) The municipality council shall regulate the course of business of the consultative committees in its rules of procedure.
(2) The provisions of Articles 46 to 54 of this Law shall apply mutatis mutandis to the course of business of the decision-making committees.
(1) The municipality administrative activity must be in harmony with the Constitution and the laws. It may not be derived from factual aspects.
(2) The municipalities shall be obliged to ensure the correct course of business and to create the institutions required for this.
(3) Every inhabitant of a municipality can approach the municipality council with petitions and complaints.
(1) The municipalities shall maintain secrecy on all matters that must not become known to unauthorised parties in the interests of the security or other important concerns of the Federal Republic or one of its Länder. The obligation to maintain secrecy regulated in other legal provisions shall remain unaffected by this.
(2) The municipalities shall make the necessary provisions for maintaining secrecy on the matters named in para. 1 first sentence of this Article. To this extent they shall also respect the administrative provisions applicable to the authorities of the Free State of Bavaria. The State Ministry of the Interior may draw up guidelines in this respect and issue instructions that are not subject to limitation pursuant to Article 109 para. 2 second sentence.
(3) The legal supervisory authority shall oblige the mayor in writing at the beginning of his period in office to maintain secrecy on the matters named in para. 1 first sentence of this Article and to observe the provisions applicable hereto. In the same way the mayor shall oblige his deputies to do the same. He shall oblige municipality council members and municipality employees before they can be entrusted with matters named in para. 1 first sentence of this Article.
(1) In its own sphere of activity the municipalities shall create and maintain within the limits of their capacity the public institutions that, according to the local circumstances, are required for the economic, social and cultural wellbeing and the promotion of community life of their inhabitants, in particular institutions to maintain public security and order, fire safety, public health, public transport, health, public welfare including youth services, public teaching and other education, youth sport, public sport and cultural and archive maintenance; in this connection the concerns of nature conservation and environmental protection shall be taken into account. The obligation to fulfil these tasks is determined pursuant to the special legal provisions.
(2) Notwithstanding existing liabilities vis-à-vis the third parties, the municipalities shall be obliged within the limits of their capacity to create and maintain installations for provision with drinking water for reasons of public wellbeing. Other legally stipulated obligations of the municipality shall remain unaffected by this.
(3) If a mandatory task exceeds the capacity of a municipality, the task is to be fulfilled in local authority corporation.
(1) In the transferred sphere of activity the municipality shall fulfil the local tasks of internal administration unless special authorities have been commissioned with this, and they shall participate in other public administration as provided for in law.
(2) The municipalities shall be of assistance to municipality members in introducing administrative procedures within the limits of their administrative capacity, even if another authority is responsible for the implementation of such procedures.
(3) The municipalities shall keep forms for applications, notifications and registrations that have been given to them by other authorities.
(4) Insofar as applications are to be submitted to the Government, the town district or the chief administrative officer’s office, the municipalities must accept the applications and pass them on to the authority concerned without undue delay. The State Government can incorporate into this regulation by means of a statutory ordinance applications that have to be made at other authorities. Placing an application with the municipality shall be deemed to be placing an application with the responsible authority provided that federal law does not state otherwise.
(1) The execution of legal provisions in the municipalities’ own and in the transferred sphere of activity and the implementation of ordinances and instructions of state authorities with the force of law shall be the duty of the municipality council, and of the mayor in the cases under Article 37.
(2) If the mayor considers decisions of the municipality council or its committees to be against the law he must make an objection to them, suspend their execution and, insofar as it is necessary, bring about a decision by the legal supervisory authority (Article 110).
(1) The territory of towns with more than 100,000 inhabitants shall be divided into town districts. In this connection, historical context and names as well as the peculiarities of population and economic circumstances shall be taken into account.
(2) In the town districts the municipality council can set up town district administrative offices and advisory town district committees for certain administrative tasks falling in their areas. In this connection the municipality council can transfer matters for final decision to the town district committees, taking into account concerns of the town as a whole. In towns with more than one million inhabitants town district committees shall be formed.
(3) If town district committees are formed, their composition shall reflect the results of the town council elections in the town district concerned. If the town district committees are given decision-making rights by the town council, the members of the town district committees shall be elected by the municipality citizens who live in the town district at the same time as the election for town council members. If decision-making rights are transferred within the period of office of the town council, the election of members of to the town district committee shall be held at the time of the transfer of the decision-making rights. The provisions concerning the election of municipality councils, with the exception of Article 31 para. 4 of this Law shall apply mutatis mutandis to the election, subject to the proviso that the electoral bodies for the election of the municipality council shall also be responsible for the election of the members of the town district committees.
(4) Recommendations and applications from the town district committees, for which the town council is responsible, shall be dealt with by the town council or by a decision-making committee within a period of three months.
(5) Further details shall be contained in a municipality bylaw. The mayor can transfer some of his individual powers in matters of day-to-day administration to the town district administrative offices (Article 39 para. 2 first clause).
(1) In parts of municipalities that were still independent municipalities on 18 January 1952 and that are not represented in the municipality council, the mayor shall call a local assembly upon the application of one third of the municipality citizens resident there which will then elect a local spokesman from its midst. Article 51 para. 3 third to sixth sentences of this Law shall apply mutatis mutandis. The period of office of the local spokesman shall end with the period of office of the municipality council.
(2) The local spokesman can participate in all meetings of the municipality council with an advisory vote and can make applications. The municipality council can restrict these rights to the observance of local matters by means of the rules of procedure.
(3) Paras 1 and 2 shall not apply if a town district committee pursuant to Article 60 para. 2 exists for the part of the municipality.
(1) The municipality shall plan and manage its budget so that the constant performance of its tasks is ensured. In this connection account shall be taken of the requirements of the equilibrium of the economy as a whole.
(2) The budget shall be planned and managed efficiently and economically. In appropriate cases tasks should be examined with a view to whether and to what extent they can be performed at least equally well by non-local authority agencies, in particular by private third parties or with the involvement of third parties.
(1) The municipality shall levy charges in line with the legal provisions.
(2) It shall raise the revenues required for the fulfilment of its tasks
- 1. insofar as it is reasonable and appropriate from special fees for services it performs
2. otherwise from taxes
insofar as other revenue is not sufficient.
(3) The municipality may only take out loans if another form of financing is not possible or would be economically impractical.
(1) The municipality shall issue a financial regulation for every fiscal year. The financial regulation can contain stipulations for two fiscal years, separated according to years.
(2) The financial regulation shall contain a stipulation
- 1. of the budgetary plan whereby the overall sum of revenue and expenditure in the fiscal year shall be stated,
2. the overall sum of planned new loans from investments and investment promotion measures (creditor authorisations),
3. the overall sum of planned authorisation for entering into obligations that will burden future fiscal years with expenditure for investments and investment promotion measures (obligation authorisation),
4. the charge rate that are to be specified anew for every fiscal year,
5. the maximum sum of the cash advances.
The details pursuant to the first sentence indents 2, 3 and 5 shall be made separately for the budgetary system of the municipality and the economic accounting of municipality companies. The financial regulation can contain further provisions that refer to the revenue and expenditure and the staffing schedule of the fiscal year.
(3) The financial regulation shall enter into force at the beginning of the fiscal year and shall apply to the fiscal year.
(4) The fiscal year shall be the calendar year unless otherwise determined for individual areas by means of a law or statutory ordinance.
(1) The budgetary plan shall contain
- 1. expected revenue,
2. probable expenditure and
3. obligation authorisations probably required
in the fiscal year of fulfilment of municipality tasks. The provisions on revenue, expenditure and obligation authorisations for the municipality owned companies shall remain unaffected by this.
(2) The budgetary plan shall be divided into an administrative budget and a financial budget. The staffing schedule for the municipality civil servants and salaried employees shall be a part of the budgetary plan. The civil servants and salaried employees employed in the savings banks shall not be listed in this staffing schedule if a binding staffing schedule is to be issued under savings bank legislation.
(3) The budgetary plan must be balanced. It is the basis for the budgetary economy at the municipality and it shall be binding for budget management pursuant to this Law and the provisions issued on the basis of this Law. Claims and liability of third parties shall neither be justified nor lifted by it.
(1) The municipality council shall decide on the financial regulation including its annexes in a public session.
(2) The financial regulation and its annexes shall be submitted to the legal supervisory authority at the latest one month before start of the fiscal year.
(3) Financial regulations with components that require approval shall be made public officially immediately after approval. Financial regulations without such components shall be made public officially at the earliest one month after submission to the legal supervisory authorities, provided that the legal supervisory authority does not find fault with the regulation. At the same time the budgetary plan shall be available for the public inspection for one week; this shall be pointed out in the official promulgation of the financial regulation.
(1) Extra and unscheduled expenditure shall only be permissible if it is unavoidable and it can be covered. If the expenditure is considerable it shall be decided by the municipality council.
(2) Para. 1 shall apply mutatis mutandis to measures that can arise as a result of the municipality liabilities not provided for in the budgetary plan.
(3) Article 68 para. 2 shall remain unaffected.
(4) For investments that are to be continued in the following year, extra expenditure of an inconsiderable degree shall also be permissible if it could only be covered in the current year by the issuing of a subsequent financial regulation, but it can be covered in the subsequent year. The municipality council shall decide on this.
(5) The municipality council can issue guidelines on accruals and deferrals.
(1) Obligations to provide expenditure for investments and investment promotion measures in future years may only be entered into if the budgetary plan allows it.
(2) The obligation authorisations may usually be provided for the following three fiscal years, in exceptional cases until a measure has been concluded; they shall only be permissible if they do not endanger the balance of future budgets.
(3) The obligation authorisations shall apply until the end of the fiscal year and, if the financial regulation for the following fiscal year is not officially published in due time, until this financial regulation is issued.
(4) The total amount of the obligation authorisations shall require a permit within the framework of the financial budget if there are plans to take out loans in the years for which they are planned.
(1) The financial regulation can be amended by means of supplementary financial regulations only until the end of the fiscal year. The provisions for the financial regulation shall apply mutatis mutandis to the supplementary financial regulation.
(2) The municipality shall issue a supplementary financial regulation without undue delay if
- 1. it is seen that in spite of using every savings opportunity a shortfall will arise and the budget can only be balanced by means of amending the financial regulation,
2. expenditure previously not included or additional expenditure in individual budget items has to be made to an extent that is considerable in relation to the overall expenditure,
3. expenditure from the financial budget is to made for investments or investment promotion measures previously not included,
4. civil servants or salaried employees are to be engaged, promoted or put in a higher salary group and the staffing schedule does not contain the appropriate positions.
(3) Para. 2 indents 2 to 4 shall not apply to
- 1. the acquisition of movables within the fixed assets and construction measures, insofar as the expenditure is inconsiderable and unavoidable,
2. deviations from the staffing plan and higher personnel expenditure that are necessary for reasons of civil service or collective bargaining law or for the performance of new tasks.
(1) If the financial regulation has not yet been published at the beginning of the fiscal year, the municipality may
- 1. make expenditure which it is legally obliged to pay that cannot be deferred due to the continuation of necessary tasks; in particular it may continue buildings, acquisitions and other payments from the financial budget for which sums were provided in the budgetary plan of a previous year,
2. levy the charges that are to be set every year in the financial regulation according to the rates of the previous year,
3. reschedule debts.
(2) If the cover funds are not sufficient for the continuation of the buildings, the acquisitions and the other payments from the financial budget pursuant to para. 1 indent 1, the municipality may take out loans for investments and investment promotion measures up to one quarter of the average amount of the loans specified for the two previous years or, if in one or in both of the previous years, no loans were specified up to one quarter of the scheduled loans for the fiscal year in the financial plan of the previous year. It shall require a permit for this. Article 71 para. 2 second and third sentences shall apply mutatis mutandis.
(3) The staffing schedule of the previous year shall continue to apply until the financial regulation for the new year has been issued.
(1) The municipality shall base its budget on a five year financial plan. The first planning year of the financial plan shall be the current fiscal year.
(2) An investment programme shall be drawn up as a document for the financial plan.
(3) The extent and composition of probable expenditure and the means for covering it shall be included in the financial plan.
(4) The financial plan shall be submitted to the municipality council with the draft financial regulation at the latest.
(5) The financial plan and the investment programme shall be adapted to developments and continued every year.
(1) Loans may be taken out under the conditions of Article 62 para. 3 only within the financial budget and only for investments, for investment promotion measures and for rescheduled debts.
(2) The total amount of the planned loans to be taken out for investments and investment promotion measures shall require a permit within the framework of the financial regulation (overall permit). The permit is to be issued or denied under the aspect of an orderly budget; it can be issued subject to conditions and provisos. Usually it shall be refused if the loan obligations do not correspond to the ongoing financial capabilities of the municipality.
(3) The loan authorisation shall apply until the end of the year following the fiscal year and, if the financial regulation is not officially published in due time, to the subsequent year until the financial regulation has been issued.
(4) The taking out of individual loans shall require a permit (individual permit), as soon as taking out loans by municipalities has been restricted pursuant to Article 19 of the Law Promoting Stability and Growth of the Economy. The individual permit can be denied subject to the proviso of loan restrictions.
(5) The State Ministry of the Interior in conjunction with the State Ministries of Finance, Economics and Transport, can make the taking out of loans dependent on the permit (individual permit) if the Business Cycle Council for the public sector has recommended the restriction of the taking out of loans by municipalities and associations of municipalities pursuant to Article 18 para. 2 of the Law Promoting Stability and Growth of the Economy. The permit shall be refused if this is necessary to avoid an imbalance in the overall economy or if the loan conditions are not economically reasonable. Such statutory ordinances shall be limited to a maximum of one year.
(6) The municipality may not furnish Collateral to secure a loan. The legal supervisory authority can allow exceptions if the furnishing of collateral corresponds to prevailing practice.
(1) The conclusion of legal transactions that have the same economic effect as taking out a loan shall require a permit.
(2) The municipality may take on suretyships, contracts of guaranties and obligations from related legal transactions that involve guaranteeing third party debt or occurrence or non-occurrence of certain circumstances, only for fulfilling their own tasks. The legal transactions shall require a permit if they are not concluded within the context of ongoing administration.
(3) The municipality shall require a permit for the furnishing of collateral to the advantage of third parties.
(4) Article 71 para. 2 second and third sentences shall apply mutatis mutandis to the permit.
(5) The State Ministry of the Interior in conjunction with the State Ministry of Finance can exempt legal transactions
- 1. that the municipalities enter into in order to fulfil certain tasks or
2. that do not represent any particular burden for the municipalities or
3. recur regularly by their very nature
from the need for a permit by means of a statutory ordinance.
(1) In order to make their expenditure on time the municipalities can take out short-term lending up to the maximum amount set forth in the financial regulation insofar as no other funds are available to the cashier’s office. This authorisation shall apply beyond the fiscal year until a new financial regulation has been issued.
(2) The maximum amount set forth in the financial regulation shall require a permit if
- 1. the maximum amount for the budget exceeds one sixth of the estimated income in the administrative budget,
2. the maximum amount for the own companies exceeds one sixth of the income estimated in the profit plan.
(1) The municipality should only acquire assets if it is necessary for the fulfilment of its tasks.
(2) The assets shall be administered carefully and economically and correct records shall be kept. In the case of financial investments, care shall be taken of sufficient collateral; they shall bring in an appropriate income.
(3) The provisions of the Bavarian Forests Act shall apply to the management of a municipality wood or forest in addition to the provisions of this Law.
(1) The municipality may sell assets that it does not need to perform its tasks. Assets may usually only be sold for their value.
(2) Para. 1 shall apply mutatis mutandis to the transfer of the use of an asset. Exceptions shall be permissible in particular in the renting of local authority buildings to ensure low-cost dwellings and to ensure the livelihoods of small commercial operations and commercial operations with low income.
(3) It shall not be permitted to make a gift of municipality assets or to transfer them free of charge (Article 12 para. 2 second sentence of the Constitution). The sale or transfer of municipality assets in fulfilling municipality tasks or standard duties in discharge of a municipal debt shall not fall under this prohibition.
(4) Municipality assets may only be incorporated into foundation assets within the context of the performance of municipality tasks only if the purpose of the foundation cannot be fulfilled in any other way.
The municipality shall form reserves of an appropriate amount for the purposes of the financial budget and to ensure the budget. Reserves for other purposes shall be permissible.
(1) The creditor of an outstanding municipality debt under private law must, provided that he is not pursuing rights improperly, deliver to the legal supervisory authority a certified copy of the executory title prior to the start of the execution due to this debt. The execution may not begin until one month following delivery to the legal supervisory authority.
(2) Para. 1 shall apply mutatis mutandis to outstanding debts under public law provided that no special provisions exist.
(3) Bankruptcy proceedings or court composition proceedings shall not take place concerning municipality assets.
(1) Public rights of individuals to use municipality assets or former local assets (rights of use) cannot be newly substantiated, expanded or changed or split up as regards the type of use.
(2) Right of use are only substantiated if a special title exists or if the right has been exercised without interruption since 18 January 1922 or by virtue of legal conviction. The following are non-prejudicial:
- 1. interruptions that are not the responsibility of the entitled parties
2. interruptions caused by exercising an exclusively agricultural right of use that are no longer than three years and are the result of the restructuring of the agricultural operation.
Rights of use that are not exclusively for agricultural purposes shall not lapse as a result of the cessation of agricultural operation.
(3) The transfer of a right of use that is based on one premises to another premises, the accumulation of more than a full right of use to a premises or the splitting up of a right of use are only permissible for important reasons, only within the same municipality and only if a premises to which the right of use is to be transferred the living and working premises of a working farmer or forester. They shall require the approval of the municipality and a permit. The transfer of a right of use to a legal person and a private law or a company under commercial law shall not be permissible.
(1) Anyone who derives benefits shall bear the burdens based on the subject of the right of use and shall cover the expenditure required to benefit from the uses and to maintain or increase profitability. If municipality assets are partially used by the municipality and partially by entitled parties these burdens and expenditure shall be divided accordingly.
(2) The entitled party shall be entitled to perform services in kind to the municipality for the uses, provided that this was the case in the past. The level of the services in kind shall be measured pursuant to the relationship of value between use and service in kind on 1 January 1938.
(1) Rights of use can be redeemed by means of an agreement between the entitled parties and the municipality. With the agreement of the majority of the entitled parties all of the rights of use can be redeemed by the municipality; in this connection the voting rights shall be based on the proportions of overall rights of use. If individual rights of use are redeemed they shall be transferred to the municipality; it cannot transfer the rights to third parties. If all rights of use are redeemed they shall become extinct.
(2) Rights of use can be terminated by the legal supervisory authority upon the application of the municipality if the municipality needs this plots of land entirely or partially for reasons of the general wellbeing or the performance of public tasks.
(3) If rights of use are redeemed by the municipality or terminated by the legal supervisory authority, the entitled parties shall be compensated appropriately by the municipality.
(1) Compensation shall be paid in money by means of the payment of a one-off sum. The entitled parties can demand to be compensated in plots of land if
- 1. they are dependent on it to secure their professional and gainful employment,
2. it can be reasonably expected of the municipality and
3. other provisions do not prevent compensation in the form of plots of land.
There shall be no entitlement for the assignment of specific plots of land.
(2) Generally, the value of the average annual net proceeds of the uses achieved in the fifteen years immediately preceding the redemption or termination or that could have been achieved with unhindered correct exercising of the right, multiplied by twenty-five shall be deemed to be the basis an appropriate compensation. A corresponding provision shall apply to agreed redemption.
(3) In the event of a dispute the court of general jurisdiction shall decide the level of compensation.
(4) Forest cooperatives that were formed as bodies under public law in conjunction with the redemption or termination of rights of use can be dissolved if no other provisions prevent this. The legal circumstances of existing forest cooperatives, in particular their tasks, the rights and duties of their members, their dissolution and supervision shall be governed by a statutory ordinance from the State Ministry of the Interior.
(1) Assets that the municipality accepts from third parties under the condition that it will use them for a specific public purpose without an incorporated foundation being formed shall be administered in accordance with their intended purpose pursuant to the provisions applying to municipality assets.
(2) The assets shall be maintained in such way that they do not diminish. They shall be administered separately from the other municipality assets and invested in such a way that they are available for their intended purpose.
(3) The income may only be used for the purposes of the foundation. If a reduction has occurred the assets should be supplemented from the income.
Insofar as an amendment to the purpose of use or the termination of the intended purpose is permissible, the municipality council shall decide on this. The decision shall require a permit.
(1) The municipality may only establish, take over or expand economic corporations if
- 1. the public purpose requires the company,
2. the type and size of the company is in an appropriate ratio to the capacity of the municipality and to probable need,
3. the purpose is not, or cannot be, performed equally well and economically by someone else.
(2) Municipality economic corporations may not cause any major damage or any absorption of independent corporations in agriculture, skilled crafts, trade, commerce or industry.
(3) The municipality may not establish any banking operations. The special provisions shall remain in force for the public savings bank system. Municipalities in which the provision of the public with sufficient dwellings at appropriate condition is particularly under threat can provide information on homes with the approval of the locally responsible government.
(4) Companies of the municipality that do not remain restricted to the municipality territory shall require a permit.
If the municipality intends to establish, take over or expand economic corporations or corporations on the basis of statutory ordinance pursuant to Article 95 para. 6 it must inform the legal supervisory authority in time, at least six weeks before the start or commissioning of work or before the conclusion of the take over contract. It must be clear from the report whether the legal conditions have been met and whether the coverage of costs is in fact and legally ensured.
(1) The municipality may only found companies in a legal form under private law or participate in such companies if
- 1. the conditions of Article 89 paras 1 and 2 are in place for economic operations, or if the public purpose justifies the company in the case of non-economic operations,
2. it is ensured in the company agreement or the statute that the company performs a public purpose,
3. the municipality is granted sufficient influence in the supervisory board or in a corresponding supervisory body and
4. the liability of the municipality is limited to a specific sum; the legal supervisory authority can waive the liability limitation in justified case.
Article 90 shall apply mutatis mutandis.
(2) The municipality may not participate in banks, except for Article 92. Special provisions apply to participation in public savings banks and special purpose associations.
(1) The municipality can acquire a single business share of a registered pure credit cooperative with limited liability. This shall also apply if the credit cooperative conducts commodity trades in a standard manner. The legal supervisory authority is to be informed of an acquisition intention. Article 89 paras 1 and 2 shall not apply in these cases.
(2) The municipality cannot acquire business shares in a credit cooperative with unlimited liability.
(1) Municipality representatives in the bodies of a company in which the municipality holds a participation may only decide upon the taking out of loans following a prior decision from the municipality council. The same shall apply if such a company intends to participate in another company.
(2) If representatives pursuant to para. 1 are made liable as a result of their activity the municipality shall reimburse them for the damage unless they caused it deliberately or through gross negligence. In this case, too, the municipality is obliged to provide compensation if the representatives were acting under orders.
(3) The membership of municipality representatives in bodies pursuant to para. 1 shall cease to exist with their leaving the professional or honorary service of the municipality.
(1) Economic operations and participation ought to yield revenue for the municipality budget.
(2) The income of every operation ought to at least cover expenditure and allow appropriate reserves in addition to bearing interest on equity at a standard market rate. Income shall also include appropriate remuneration for the goods and services of the operation to the municipality or to other municipality companies with their own or without their own legal personality.
(3) The expenditure shall include taxes, interest for loans taken out for the purposes of the operation, appropriate sums for maintenance and provision, appropriate depreciation, appropriate remuneration for the goods and services of the municipality as well as other municipality companies with or without their own legal personality, as well as appropriate reserves for expenses and special risks.
(1) If the shares in a company belong to a municipality in the amount specified in Article 53 para. 1 of the Act on the Basic Rules Governing Budgetary Law, the municipality must
- 1. ensure that the annual report and the directors’ report are drawn up and audited in line with the provisions of the commercial code applicable to large capital companies unless further reaching legal provisions apply or other legal provisions state otherwise,
2. exercise the rights pursuant to Article 53 para. 1 of the Act on the Basic Rules Governing Budgetary Law,
3. aim for the powers provided in Article 54 of the Act on the Basic Rules Governing Budgetary Law are granted to it and the regional auditing body responsible for it.
The legal supervisory authority can permit exceptions.
(2) If a municipality participation in a company is not a majority participation within the meaning of Article 53 of the Act on the Basic Rules Governing Budgetary Law, the municipality ought to aim, insofar as required by its interest, for the rights pursuant to Article 53 para. 1 of the Act on the Basic Rules Governing Budgetary Law to be granted to the municipality and for the powers pursuant to Article 54 of the Act on the Basic Rules Governing Budgetary Law to be granted to the municipality and the regional auditing body responsible for it either in the statute or in the company agreement. In the case of indirect participations they shall only apply if the participation exceeds one quarter of the shares and is due to a company in which the municipality alone or together with other local authorities holds a participation within the meaning of Article 53 of the Act on the Basic Rules Governing Budgetary Law.
(1) The municipality council shall appoint a works’ management and a works’ committee for municipality economic operations without their own legal personality (municipalities’ own companies).
(2) The works’ management shall conduct the ongoing business of the municipalities’ own company. It is to this extent empowered to represent the company; the municipality can transfer further representative powers to it with the agreement of the mayor. The works’ management is the official superior of the civil servants employed in the municipalities’ own company and supervises them and the salaried employees and blue-collar workers employed in the municipalities’ own company. The municipality council with the agreement of the mayor can transfer personnel law powers to the works management to the civil servants, salaried employees and blue-collar workers employed in the municipalities’ own company, with Article 43 para. 2 being applied mutatis mutandis.
(3) Otherwise the works’ committee shall decide on the matters relating to municipalities’ own company provided that the municipality council does not reserve the right of decision for itself in general or in individual cases. The works’ committee is a decision-making committee within the meaning of Articles 32 and 55. In the case Article 43 para. 1 second sentence powers vis-à-vis civil servants, salaried employees and blue-collar workers in the municipalities’ own company ought to be transferred to the works’ committee.
(4) Municipalities’ own companies shall be administered as special assets. Articles 61, 62, 67, 69 to 72, 73 para. 1, Articles 74, 75, 77, 100 para. 4 and Article 101 shall apply mutatis mutandis.
(5) Within the framework of the legal provisions the matters relating to the municipalities’ own company shall be governed by means of a company statute. This must contain further provisions on the economic management, asset management and rendering of accounts.
(6) By means of a statutory ordinance the State Ministry of the Interior can ordain that certain non-economic companies, for which economic management and administration deviating from the other local authority economic provisions applicable to them according to their nature and size, can be entirely or partially managed in accordance with the provisions applicable to municipalities’ own companies. In this connection regulations can also be made that deviate from individual provisions applicable to municipalities’ own companies.
(1) The municipality can establish economic and non-economic companies as independent companies in the legal form of an institution under public law or can transform existing ancillary municipal enterprises and municipalities’ own companies into local authority companies as part of the overall legal successor. Article 91 para. 1 first sentence indent 1 shall apply mutatis mutandis. The local authority company can participate in other companies in line with the company’s statute if this serves the purpose of the company.
(2) The municipality can entirely or partially transfer to the local authority company individual tasks or all tasks associated with a specific purpose. Pursuant to Article 24 it can specify by means of a separate bylaw an obligation for connection and use in favour of the local authority company and can empower the company to implement this in line with Article 27. It can also grant the company the right to issue bylaws and, insofar as Land law allows them to be issued, ordinances for the transferred area of tasks in its stead; Article 26 shall apply mutatis mutandis.
(3) The municipality shall stipulate the legal circumstances of the local authority company by means of their company statute. The company’s statute must contain provisions on the name and the tasks of the company, the number of members of the management board, the amount of nominal capital, the economic management, the assets’ management and the rendering of accounts. The company’s statute shall be submitted to the legal supervisory authority, which shall be notified of changes in the company’s tasks and the dissolution of the local authority company; Article 90 shall apply mutatis mutandis. The municipality shall publish the company’s statute and any amendments pursuant to Article 26 para. 2. The local authority company shall come into being on the day after publication, unless a later date is specified in the company’s statute.
(4) The municipality shall be liable without any limits for the local authority companies’ liabilities provided that they cannot be satisfied from the companies’ assets (guaranty authority).
(1) The local authority company shall be managed by a management board acting on the same responsibility unless otherwise determined by means of a law or by means of the company’s statute. The management board shall represent the local authority company externally.
(2) The management of the management board shall be supervised by an administrative board. The administrative board shall appoint the management board for a maximum of five years; repeated appointment shall be permissible. Furthermore, the administrative board shall decide on
- 1. bylaws and ordinances pursuant to Article 96 para. 2 third sentence,
2. approval of the economic plan and the annual statement,
3. the setting of the general applicable tariffs and rates for people who use the services,
4. participation of the local authority company in other companies
5. the appointment of the auditor,
6. the appropriation of net income.
In the case of indent 1 the administrative council shall be subject to the instructions of the municipality council. The company’s statute can include a provision stating that the municipality council can issue instructions to the members of the administrative board in certain other cases. Voting against the instruction shall not effect the validity of the administrative board’s decision.
(3) The administrative board shall comprise a chairman and other members. The mayor shall be the chairman; with his agreement the municipality council can appoint another person to be chairman. The chairman pursuant to second sentence second clause and the other members of the administrative board shall be appointed by the municipality council for six years. The period of office of members of the administrative board who are members of the municipality council shall terminate with the end the electoral period or early retirement from the municipality council or, in the case of professional members of the municipality council, with retirement from civil service status. The members of the administrative board shall continue to exercise their office until the entry into office of new members. The following cannot be members of the administrative board:
- 1. civil servants and salaried employees whose main employment is with the local authority company,
2. senior civil servants and senior salaried employees of legal persons or other organisations under public or private law in ich the local authority company has more than a 50 % participation; participation in the voting rights shall be sufficient,
3. civil servants and salaried employees of the legal supervisory authority that are directly involved in tasks of supervision of the local authority company.
(4) The local authority company shall be entitled to be employer of civil servants if it exercises sovereign powers on the basis of a transfer of tasks pursuant to Article 96 para. 2. If it is dissolved the municipality shall take on the civil servants and the parties being provided with the services. If the company assets are entirely or partially transferred to other legal persons under public law with capacity to be employers Chapter II Section III of the Framework Act on Civil Service Law shall apply to the taking on in the legal status of the civil servants and the people receiving services from the local authority company.
(1) The financial statement and the directors’ report of local authority companies shall be drawn up and audited in line with the provisions of the commercial code applying to large capital companies provided that no further reaching legal provisions apply or other legal provisions preclude this.
(2) The municipality auditing bodies shall be entitled to inform themselves directly in order to clarify questions that occur during auditing pursuant to Article 106 para. 4 second and third sentences and, for this purpose, to inspect the operation, the books and the correspondence of the local authority community.
(3) Article 4 para. 2, Articles 61, 62, 69, 70, 74, 75, 77 and 101 and the provision of Part Four concerning state supervision and remedies shall apply to the local authority company mutatis mutandis.
(1) The municipality cash account shall perform all municipality cash transactions.
(2) The municipality shall appoint a cash account administrator and a deputy. This obligation shall be waived if the municipality has all of its cash transactions performed by an office outside the municipality administration. The parties of the municipality administration entitled to issue orders, the head and the auditor of the auditing office and employees to whom local cash audits have been transferred, cannot perform the task of a cash account administrator or his deputy at the same time.
(3) The cash account administrator and his deputy may not be linked to each other or to the parties of the municipality administration entitled to issue orders, the head and the auditors of the auditing office and employees to whom local cash audits have been transferred by means of a relationship within the meaning of Article 20 para. 5 of the Bavarian Administrative Procedures Act.
(4) Special cash accounts ought to be linked to the municipality cash account paras 2 and 3 shall apply mutatis mutandis to the administrator of the special cash account and his deputy.
(1) With a permit the municipality can allow the determination of claims and financial obligations, the preparation of corresponding cash orders, the cash transactions and the accounting to be performed entirely or partially by an office outside the municipality administration if the correct and reliable performance and auditing pursuant to the provisions applicable to the municipality are ensured. The provisions of the Act on Local Authority Cooperation and the Administrative Community Law shall remain unaffected.
(2) The transfer of tasks within the framework of para. 1 to the Institute for Local Authority Data Processing in Bavaria (Anstalt für Kommunale Datenverarbeitung in Bayern, AKDB), an institute under public law, shall not require a permit.
(1) The results of the budget including the status of the assets and liabilities at the beginning and at the end of the fiscal year shall be set forth in the annual accounts. The annual accounts shall be explained by means of a statement of account.
(2) The annual accounts shall be drawn up within four months of the end of the fiscal year and shall then be submitted to the municipality council.
(3) After the local audit (Article 103) has been carried out and after any discrepancies have been cleared the municipality council shall approve the annual accounts in a public session.
(4) After the regional auditing of the statement in the annual accounts (Article 105) and after any discrepancies have been cleared the municipality council shall decide on formal approval in a public session. If the municipality council refuses formal approval or issues it with restrictions it must specify the principal reasons for this.
(5) The municipality council members can inspect the reports on the audits at any time.
(1) The annual accounts and the annual statement of the municipalities’ own companies and the hospitals with commercial accounting shall either be audited by the municipality council or by an auditing committee (local auditing). Records shall be kept of the deliberations.
(2) In municipalities with over 5,000 inhabitants the municipality council shall form from its midst an auditing committee with at least 3 and a maximum of 7 members and shall appoint one committee member to be chairman; Article 33 para. 2 shall not apply.
(3) Experts can be consulted for auditing the annual accounts and the annual statement. In municipalities in which an auditing office is established (Article 104) the auditing office shall be consulted comprehensively as an expert.
(4) The local auditing of the annual accounts and the annual statement shall be carried out within twelve months of the end of the fiscal year.
(5) The mayor shall be responsible for local cash account auditing. In municipalities in which an auditing office is established, he shall use this office.
(1) Municipalities not belonging to a district must establish an auditing office. Municipalities belonging to a district can establish an auditing office if there is a need for it and if the costs are in a reasonable relation to the amount of administration.
(2) The auditing office shall be responsible to the municipality council for local auditing and to the mayor for local cash account auditing. The municipality council and the mayor can issue special commissions for auditing the administration. The auditing office shall be independent in the performance of its tasks and only subject to the law. Otherwise the powers of the mayor shall remain unaffected; the auditing office is directly responsible to the mayor.
(3) The municipality council shall appoint the head, his deputy and the auditors of the auditing office and remove them from office. The municipality council can dismiss the head of the auditing office and his deputy against their will only with a majority of two thirds of the legal number of members of the municipality council if they do not perform their task correctly. The dismissal from office of auditors from the auditing office against their will shall require a majority of two thirds of the municipality council members entitled to vote.
(4) The head of an auditing office and his deputy must be civil servants for life. They must qualify at least for superior non-technical administrative service and have the experience and aptitude required for their office.
(5) The head, his deputy and the auditors of the auditing office may only occupy another position in the municipality if this is compatible with their auditing tasks. They may not order or execute payments for the municipality. Furthermore Article 100 para. 3 shall apply mutatis mutandis to the head of the auditing office and his deputy.
(1) The regional audits and cash account audits shall be performed by the Bavarian Local Authority Auditing Association (Bayerischer Kommunaler Prüfungsverband) if the municipality is a member of this association, and for other municipalities by the state auditing offices of the chief of administrative offices (regional auditing bodies).
(2) The regional auditing shall take place immediately after the approval of the annual accounts on the annual statement of the municipalities own companies and the hospitals with commercial accounting.
(1) The audit shall extend to adherence to the provisions and principles applicable to economic management, in particular to whether
- 1. the financial regulation and the budgetary plan have been adhered to,
2. the income and expenditure have been justified and proved and that the annual account and the proof of assets have been correctly listed,
3. conduct has been economical and efficient,
4. the tasks can be performed with less expenditure on personnel or assets or can be more effective in any other way.
(2) The economic management of hospitals including the final statement shall be subject to auditing. Para. 1 shall apply mutatis mutandis.
(3) Auditing shall also include the economic management of the municipalities’ own companies with para. 1 applying mutatis mutandis. In this connection it is to be adjusted to the final audit (Article 107).
(4) Within the framework of the audit the activity of the municipality in companies under private law in which the municipality has a direct or indirect participation shall also be audited under commercial principles. The same shall apply to acquisitional and economic cooperatives in which the municipality is a member as well as to local authority companies. Furthermore the audit comprises book, tax and other audits that the municipality has reserved for itself when lending credit or otherwise.
(5) The correct performance of cash transactions, the correct establishment of cash accounts and the interaction with the administration shall be audited by means of cash account audits.
(1) The annual accounts on the director’s report of a municipality own company and of a local authority company ought to be audited at the latest within nine months of the end of the economic year by an expert auditor (final auditor).
(2) The final audit shall be performed by the Bavarian Local Authority Auditing Association or by an auditor or by an auditing company.
(3) The final audit shall extend to the completeness and the correctness of the annual accounts including bookkeeping and the director’s report. In this connection the following shall also be audited
- 1. the correctness of the management,
2. the development of the asset and income situation as well as liquidity and profitability,
3. the loss-making transactions and the causes for the losses if these transactions and the causes were of significance for the asset and income situation,
4. the causes of an annual shortfall in the profit and loss account.
The supervisory authorities ought to advise, encourage and protect with understanding the municipalities in the performance of their tasks and they ought to reinforce the decision-making force and the responsibility for their own action of the municipality bodies.
(1) In the matters of the own sphere of activity (Article 7) the legal supervision is restricted to supervising the performance of tasks under public law laid down in law and adopted municipality obligations and the legality of their administrative activity (legal supervision).
(2) In the matters of the transferred sphere of activity (Article 8), state supervision shall also extend to the implementation of municipality administrative discretion (expert supervision). Interventions in the administrative discretion shall be restricted to cases in which
- 1. the general wellbeing or claims under public law of individuals require an instruction or decision or
2. the Federal Government issues an instruction pursuant to Article 84 para. 5 or Article 85 para. 3 of the Basic Law.
Legal supervision of municipalities belonging to a district shall be the responsibility of the chief administrative officers’ office as the state administrative task. The legal supervision of municipalities not belonging to a district shall be the responsibility of the government. This is the supreme legal supervisory authority for municipalities belonging to a district. The State Ministry of the Interior is the supreme legal supervisory authority for municipalities not belonging to a district.
The legal supervisory authority is empowered to acquire information on all matters concerning the municipality. In particular it can inspect institutions and facilities of the municipality, examine the management and cash account management and call for reports and files.
The legal supervisory authority shall object to decisions and decrees of the municipality that are against the law and demand that they be repealed or amended. In the case of non-fulfilment of the tasks under public law or obligations the legal advisory authority shall call upon the municipality to implement to the necessary measures.
If the municipality does not fulfil an instruction of the legal supervisory authority within an appropriate deadline set, the legal supervisory authority shall decree and perform the necessary measures instead of the municipality. The municipality shall bear the costs hereof.
(1) If the orderly course of administration is seriously hindered from fulfilling legal instructions from the legal supervisory authority as a result of the inability of the municipality council to reach a decision or by a refusal from it, the legal supervisory authority can empower the mayor to act on behalf of the municipality until the unlawful state has ended.
(2) If the mayor refuses to perform the tasks pursuant to para. 1 or if he is prevented from doing so for actual or legal reasons, the legal supervisory authority shall commission the deputy mayors in their order to act on behalf of the municipality for as long as it is required. If there are no deputy mayors or if they are prevented from performing the tasks or do not want to perform the tasks, the legal supervisory authority shall act on behalf of the municipality.
(3) Furthermore, the State Government can dissolve the municipality council and order a new election of the mayor or the municipality council or both if the unlawful state cannot be resolved in any other way.
(1) The responsibility for carrying out expert supervision for the individual areas of the transferred sphere of activity shall be determined in accordance with the special provision applicable to this. Insofar as such special provisions do not exist the legal supervisory authority shall also be responsible for the implementation of expert supervision.
(2) Insofar as large district towns perform tasks that have been transferred to them pursuant to Article 9 para. 2, the expert supervision shall be based on the provisions applicable to municipalities not belonging to a district.
(1) The expert supervisory authorities can acquire information concerning matters of the transferred sphere of activity in the same way as the legal supervisory authorities (Article 111). Furthermore, they can issue instructions to the municipality for the handling of transferred matters pursuant to Article 109 para. 2 second sentence. The expert supervisory authorities are not empowered with further reaching interventions in the municipality administration notwithstanding the decision on contradictions (Article 119 indent 2).
(2) The legal supervisory authorities shall be obliged to support the expert supervisory authorities in the performance of their legal tasks where necessary under application of the powers set forth in Articles 113 and 114. Insofar as large district towns perform tasks that have been transferred to them pursuant to Article 9 para. 2 the responsibility of the legal supervisory authorities shall be based on the provisions applicable to municipalities not belonging to a district within the framework of the first sentence.
(1) The legal supervisory authority shall issue permits prescribed by this law unless otherwise determined (Article 110).
(2) Municipality decisions as well as transactions of civil law shall acquire legal effect only with the granting of the permit required under this law.
(3) Decisions are to be reached on applications for the granting of permits without culpable delays.
The State Ministry of the Interior can approve in individual cases exemptions from regulations under organisational and budget law within this Law and the provisions issued pursuant to Article 123 in the interests of the further development of local government to try out new models of control and budgeting and accounting. The permit shall be temporary. Conditions and provisos shall, in particular, be permissible in order to maintain comparability of the execution of local authority law within the framework of a trial and to make the results of the trial useful for other municipalities, for districts and for town districts.
Article 118 (repealed)
Article 119 Issuing the notice of discrepancy (Article 73 of the Administrative Courts Law – Verwaltungsgerichtsordnung – VwGO)
The notice of discrepancy shall be issued by
- 1. the legal supervisory authority in matters of the own sphere of activity, which is restricted to examining legality; prior to this the local authority shall examine the functionality pursuant to Article 72 VwGO,
2. the expert supervisory authority in matters of the transferred sphere of activity, if the expert supervisory authority is a supreme Land authority, the authority that has issued the administrative act shall decide; Article 109 para. 2 second sentence shall not apply.
(1) The following shall decide on the discrepancy of municipalities belonging to a district against a supervisory administrative act.
- 1. The government in matters of legal supervision,
2. the higher expert supervisory authority in matters of expert supervision; if the higher expert supervisory authority is a supreme Land the authority, the authority that issued the supervisory administrative act shall decide.
(2) The next highest authority shall decide on the discrepancy of municipalities not belonging to a district against a supervisory administrative act; if the next highest authority is a supreme Land authority, the authority that issued the administrative act shall decide (Article 73 para. 1 second sentence indents 1 and 2 VwGO).
(3) If a supreme authority issued the supervisory administrative act, the discrepancy shall be waived (Article 68 para. 1 second sentence indent 1 VwGO).
(1) This law is urgent. It shall enter into force on 18 January 1952.
(1) If the number of inhabitants is of legal significance pursuant to this law or pursuant to a statutory ordinance issued on the basis of this law, the number of inhabitants taken shall be the number that was used as the basis for the most recent election of members of the municipality council. Article 34 para. 3 shall remain unaffected.
(1) The State Ministry for the Interior shall issue the implementing provisions required for the execution of this law. In particular it shall be empowered to regulate by means of statutory ordinances in agreement with the State Ministry of Finance:
- 1. the content and the form of the budget plan including the staffing schedule, the financial plan and the investment programme, furthermore the estimate of income, expenditure and obligation authorisations for an economic period deviating from the fiscal year,
2. the implementation of the budget plan, the instruction to pay, budgetary supervision, deferment, cancellation and issuing of claims and handling small amounts,
3. invitation to tender of goods and services and awarding contract,
4. the formation, temporary use and utilisation of reserves and their minimum level,
5. financial investments and their securement,
6. the recording, proof, assessment, and depreciation of assets; in this connection the assessment and depreciation can be restricted to individual areas,
7. cash orders, tasks and organisation of the municipality cash account and the special cash accounts, payment transactions, administration of cash funds, items of value and other items, bookkeeping as well as the possibility that bookkeeping and the safekeeping of items of value can be separated from cash transactions,
8. the content and form of the annual statement and the handling of the results of the previous year,
9. the establishment and administration, economic management, accounting, auditing of municipalities’ own companies and their general entire or partial release from the provisions applicable to municipalities’ own companies or their release upon application by the government,
10. the auditing of annual accounts and annual statements, the auditing of the municipality cash account and special cash account, final auditing and the release from the final auditing, the inspection of automated data processing procedures in the financial area of the municipalities, the rights and duties of the auditors the reports to be drawn up on the basis of audits and their further treatment as well as the organisation of state auditing offices of the chief administrative officer’s offices,
11. the procedure in setting up local authority companies and the establishment, administration, economic management and the account and auditing system of the local authority companies.
Furthermore the State Ministry of the Interior shall be authorised to govern by means of statutory ordinance the municipality hospitals in cooperation with the State Ministry for Labour, Family and Social Affairs and with the State Ministry of Finance.
(2) The State Ministry of the Interior shall issue the administrative provisions required and shall supply examples, in particular for
- 1. the financial regulation and the subsequent financial regulation,
2. the breakdown and grouping of the budget plan and the financial plan,
3. the form of the budget plan and its annexes, of the finance plan and of the investment programme,
4. the breakdown of the grouping and the form of the proof of assets,
5. the cash orders, bookkeeping, annual account and its annexes,
6. the breakdown and the form of the economic plan and its annexes, the finance plan and the investment programme, the annual statement, the proof of investments, and the profit overview for municipalities’ own companies and for hospitals with commercial accounting, in the General Ministerial Gazette. It can declare such specimens to be binding. The assignment of income and expenditure in the breakdown and the grouping of the budget plan and the financial plan and the assignment of proceeds with an affect on assets in the breakdown and the grouping of the proof of assets can, in the same way, be laid down to be binding by an administrative provision. The administrative provisions for the breakdown and grouping of the budget plan and the finance plan shall be issued in conjunction with the State Ministry of Finance.
- The above translation was first published by Inter Nationes as part of: Local Government Constitution, ed. by Sigrid Born, translated by Janet Barton and produced by Ilona Orthen Reproduced with kind permission. © 1997 Inter Nationes. This HTML edition © 1998 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.