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The System (Structure) of ”Executive Municipal Authorities” in Selected EU-Member States

Projektarbeit 2007 43 Seiten

Jura - Andere Rechtssysteme, Rechtsvergleichung

Leseprobe

Table Of Contents

A. Introduction
I. An Effective and Democratic Governance
II. The Rebirth of Local Government
III. The Heart of Administrative Reforms

B. Models of Legal Acts on the System (Structure) of ”Executive Municipal Authorities” in Germany
I. The Municipal Administration in Germany
II. The Creation and Organisation of Executive Municipal Authorities in Germany
1. The Municipal Council, § 40 section 2 phrase 1 GO NW
2. The Mayor, § 40 section 2 phrase 1 GO NW
a) The Election of the Mayor, § 65 section 1 GO NW
b) The Tasks of the Mayor
aa) The Mayor as Chairman of the Municipal Council, § 40 section 2 phrase 3 GO NW
bb) The Direction of the Administration, § 62 section 1 phrase 2 GO NW
cc) The Representation of the Municipality, § 63 section 1 GO NW
c) The Deputies of the Mayor
aa) The Honorary Deputies of the Mayor, § 67 GO NW
bb) The General Deputy of the Mayor, § 68 GO NW
3. The Municipal Board, § 57 section 1 GO NW
a) The Creation of the Municipal Board
aa) The Creation of the Municipal Board by a Decision of the Municipal Council
bb) The Obligation of the Municipal Council to Create a Municipal Board
b) The Types of Municipal Boards
aa) The Main Board
bb) The Financial Board
c) The Organisation of the Municipal Board
aa) The Board Chairman
bb) The Agenda of the Municipal Board
III. The Control of Executive Municipal Authorities in Germany
1. The External Control of Executive Municipal Authorities in Germany
a) The General Supervision of the Municipality, § 119 section 1 GO NW
b) The Special Supervision of the Municipality, § 119 section 2 GO NW
c) The Right of Instruction, § 16 LOG NW
2. The Internal Control of Executive Municipal Authorities in Germany
a) The Right to Object, § 54 section 1 GO NW
b) The Obligation to Object, § 54 section 2 and 3 GO NW
c) The Right to Veto, § 57 section 4 phrase 2 GO NW
IV. Outsourcing of Certain Activities in Germany
1. A Definition of Outsourcing
2. The Aims of Outsourcing
3. Possible Areas of Outsourcing
4. Requirements of Outsourcing
a) The Obligation of Tendering
b) Proof of Cost Effectiveness of Outsourcing
5. Legal Restrictions of Outsourcing by the Example of IT
a) Labour Law Restrictions of Outsourcing
b) Data Protection Law Restrictions of Outsourcing
aa) The Restriction of Outsourcing by the Federal Data Protection Act and the States Data Protection Acts
bb) The Restriction of Outsourcing by Regulations Concerning the Fiscal Secret
cc) The Restriction of Outsourcing by Regulations Concerning the Social Welfare Secret
dd) The Restriction of Outsourcing by Regulations Concerning the Statistics Secret
6. The Procedure of Outsourcing

C. Models of Legal Acts on the System (Structure) of ”Executive Municipal Authorities” in France
I. The Municipal Administration in France
II. The Creation and Organisation of Executive Municipal Authorities in France
1. The Creation of Executive Municipal Authorities in France
a) The Election of the Municipal Council
b) The Election of the Mayor
2. The Organisation of Executive Municipal Authorities in France
a) The Organisation of the Municipal Council
b) The Status of the Mayor
3. The Tasks of Executive Municipal Authorities in France
a) The Tasks of the Municipal Council
b) The Tasks of the Mayor
III. The Control of Executive Municipal Authorities in France
IV. Outsourcing of Certain Activities in France
1. The Contracts of the Delegation of Services of General Interest
a) The Definition of the Delegation of Services of General Interest, article L. 1411-1 CGCT
b) The Scope of Application of the Delegation of Services of General Interest
c) The Limits of the Delegation of Services of General Interest, article L. 1411-2 CGCT
aa) The Limit of the Duration of the Delegation of Services of General Interest, article L. 1411-2 section 1 CGCT
bb) The Prolongation of the Delegation of Services of General Interest, article L. 1411-2 section 3 CGCT
2. The Public Procurement Contracts
a) The Definition of the Public Procurement Contracts, article 1 section 1 subsection 1 CMP
b) The Personal Scope of Application of the Public Procurement Contracts Code, article 2 section 1 CMP
aa) The Principle of the Personal Scope of Application of the Public Procurement Contracts Code
bb) The Exceptions of the Personal Scope of Application of the Public Procurement Contracts Code
c) The Principles of the Public Procurement Contracts, article 1 section 1 subsection 2 CMP
d) The Objectives of Public Procurement Contracts, article 1 section 2 CMP

D. Models of Legal Acts on the System (Structure) of ”Executive Municipal Authorities” in Austria
I. The Municipal Administration in Austria
II. The Creation and Organisation of Executive Municipal Authorities in Austria
1. The Election of the Municipal Council in Austria
2. The Election of the Municipal Board and of the Mayor in Austria
3. The Establishment of Further Municipal Bodies in Austria
4. The Tasks of the Mayor in Austria
III. The Control of Executive Municipal Authorities in Austria
1. The Controlling Authorities of Executive Municipal Authorities in Austria
a) The Control of Executive Municipal Authorities in Austria by Internal Control Authorities within the Municipality
b) The Control of Executive Municipal Authorities in Austria by the National Supervisory Authorities
c) The Control of Executive Municipal Authorities in Austria by the Court of Auditors
2. The Limits of the Control of Executive Municipal Authorities in Austria
3. The Legal Defence of Executive Municipal Authorities against Measures of Control in Austria
IV. Outsourcing of Certain Activities in Austria

E. Models of Legal Acts on the System (Structure) of ”Executive Municipal Authorities” in Switzerland
I. The Municipal Administration in Switzerland
II. Outsourcing of Certain Activities in Switzerland
1. Criteria for Outsourcing by the Example of IT
2. Data Protection and Outsourcing
a) The Necessity of Data Protection
b) The Different Legal Frameworks of Data Protection
aa) The General Legal Framework of Data Protection
bb) The Legal Framework in the Case of Sovereign Acts
3. An Evaluation of Possible Activities for IT-Outsourcing
4. The Establishment of a Consulting Company for IT-Outsourcing
a) Aims of the Consulting Company for IT-Outsourcing
b) The Structure of the Consulting Company for IT-Outsourcing
c) The Benefits of the Consulting Company for IT-Outsourcing
d) The Services of the Consulting Company for IT-Outsourcing

Literature:

Bereszewski, Markus, Ämter für Outsourcing, InformationWeek of 21 September 2006, http://www.informationweek.de/services/showArticle.jhtml?articleID=194300422, last access 6 July 2007; cited as Bereszewski, Ämter für Outsourcing.

BITKOM (editor), Leitfaden Public Sector: IT-Outsourcing / Public Private Partnerships. Erfahrungen mit Risikopartnerschaften bei der IT-gestützten Modernisierung der öffentlichen Verwaltung, http://www.bitkom.org/files/documents/PPP_ITO_E-Government_fin.pdf, last access 7 July 2007; cited as BITKOM, Leitfaden IT-Outsourcing.

Busslinger, Jules, Sourcing-Management wird zur neuen Disziplin - Die Sourcing-Strategie des EFD, http://www.e-government.bfh.ch/content/File/forschung/ccegov/veranstaltungen/symposien/

outsourcing/Sourcing-Strategie_Busslinger.pdf, last access 6 July 2007; cited as Busslinger, Sourcing-Management wird zur neuen Disziplin.

Danjou, Baptiste/Massa, Emmanuel, Services Publics et Externalisation – Réalités, Actualité et Perspectives, http://www.cerna.ensmp.fr/Documents/Danjou-Massa-Proseg.pdf, last access 25 July 2007; cited as Danjou/Massa, Services Publics et Externalisation.

Datenschutzbeauftragte Basellandschaft, Empfehlung Outsourcing durch Behörden, http://www.baselland.ch/docs/jpd/ds/prak/prak-016.pdf, last access 6 July 2007; cited as Datenschutzbeauftragte Basellandschaft, Empfehlung Outsourcing durch Behörden.

Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, 5th edition December 2005, cited as Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen.

Hill, Rainer, ”Vorbehalte sind unbegründet” – Interview mit Peter Broß, Kommune 21, 1/2005, p. 19, http://www.kommune21.de/download/kommune21_200501_18.pdf, last access 6 July 2007.

Hill, Rainer, Outsourcing nur zögerlich, Kommune 21, 1/2005, p. 18 et seq., http://www.kommune21.de/download/kommune21_200501_18.pdf, last access 6 July 2007.

Janssen, Jochen/Bereszewski, Markus, Outsourcing wird für Behörden attraktiver, InformationWeek of 25 March 2004, http://www.informationweek.de/services/showArticle.jhtml?articleID=193002347, last access 6 July 2007; cited as Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

Neuhofer, Hans, Grundsätze der Gemeindeselbstverwaltung in Österreich, http://www.staedtebund.at/de/recht/gemselbst.htm, last access 4 July 2007; cited as Neuhofer, Grundsätze der Gemeindeselbstverwaltung in Österreich.

Redli, Marius, Outsourcen muss gelernt sein - Insourcing hilft dabei, http://www.e-government.bfh.ch/content/File/forschung/ccegov/veranstaltungen/symposien/outsourcing/Outsourcing_Redli.pdf, last access 6 July 2007; cited as Redli, Outsourcen muss gelernt sein.

Strub, Gérald, Kt. und Gemeinden im Aargau - Outsourcing als PPP, http://www.e-government.bfh.ch/content/File/forschung/ccegov/veranstaltungen/symposien/outsourcing/Aargau_publis_Strub.pdf, last access 6 July 2007; cited as Strub, Kt. und Gemeinden im Aargau - Outsourcing als PPP.

Abbreviations and acronyms:

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The System (Structure) of “Executive Municipal Authorities” in Selected EU-Member States

A. Introduction

I. An Effective and Democratic Governance

An effective and democratic governance is one of the most challenging issues Russia is facing today. The complexity and multiplicity of the tasks a modern state has to deal with makes it impossible to provide an efficient public administration on a ”centralised base” - hence it is vitally important to guarantee the existence of local self-government and to create a transparent and workable legal framework for its performance.

II. The Rebirth of Local Government

The rebirth of local government in Russia and the beginning of its reform dates back to the early 1990s, when the country underwent economic and political restructuring. The Federal Law No. 131 passed in June, 2003 ”On the General Organisational Principles of Local Self-Government in the Russian Federation” appeared to be the next crucial step and was expected to give more fiscal and managerial independence to municipalities.

III. The Heart of Administrative Reforms

Local self-government has formally become a very widespread phenomenon and there are 24,208 municipalities in Russia at the moment.[1] However the goals of the reforms have not been achieved – local government institutions are still very weak and their participation in social and economic developments is very limited. There is an urgent need for new opportunities to improve this situation. A workable legal framework can be a key element in the development of the efficient self-government system. The heart of administrative reforms at municipal level concerns the organisational structures of municipal authorities. The mind of a municipality are its executive authorities. Legal acts from European countries concerning the system of executive municipal authorities shall be described in order to serve as possible models for the Russian system of executive municipal authorities. Thus, the Russian self-government can reach European standards.

B. Models of Legal Acts on the System (Structure) of “Executive Municipal Authorities” in Germany

German legal acts shall be given to the following areas of interest: After a short overview over the municipal administration in Germany (I.), the German executive municipal authorities shall be listed and their creation and organisation shall be described (II.). How these executive municipal authorities are controlled in Germany is subject of the third part (III.). Finally, outsourcing of certain activities (IV.) will be shown.

I. The Municipal Administration in Germany

The municipalities are part of the state function “administration”.[2] In the federal context, they are part of the single federal states.[3] They form the local self-government.[4] As the municipal law is object of federal state law, the legal basis referred to shall be the one of the biggest federal state, Northrhine-Westphalia. Other federal states have similar regulations. § 1 section 2 GO NW (Gemeindeordnung Nordrhein-Westfalen, Municipal Regulation of the Federal State of Northrhine-Westphalia) regulates the legal personality of the municipality.

II. The Creation and Organisation of Executive Municipal Authorities in Germany

Although the municipal council establishes regulations, it is no parliament; it is an executive authority as the municipality is part of the executive.[5] Thus, § 40 section 2 phrase 1 GO NW names as the main executive municipal authorities: the municipal council and the mayor. Furthermore, § 57 section 1 GO NW authorises the municipal council to create boards.

1. The Municipal Council, § 40 section 2 phrase 1 GO NW

The municipal council consists of the mayor (§ 40 section 2 phrase 3 and 4 GO NW) and municipal councillors whose number varies according to the number of the municipal inhabitants at the time of the municipal election (§ 42 section 1 phrase 2 GO NW and § 3 section 2 KWahlG NW, Kommunalwahlgesetz, Municipal Election Act).

2. The Mayor, § 40 section 2 phrase 1 GO NW

The full-time mayor is, according to § 62 section 1 phrase 1 GO NW, a municipal elective official.

a) The Election of the Mayor, § 65 section 1 GO NW

The mayor is elected by the citizens at the same time as the general election of the municipal council for a period of five years, § 65 section 1 GO NW.

b) The Tasks of the Mayor

The mayor is the chairman of the municipal council, § 40 section 2 phrase 3 GO NW. According to § 62 section 2 phrase 1 GO NW, he directs the administration. Furthermore, he represents the municipality (§ 63 section 1 GO NW).

aa) The Mayor as Chairman of the Municipal Council, § 40 section 2 phrase 3 GO NW

As the chairman of the municipal council, the mayor represents the municipal council (§ 40 section 2 phrase 2 GO NW). Within the municipal council, the mayor has to preside over the meetings of the municipal council (§ 51 section 1 GO NW) and to organise these meetings. The organisation of the meetings of the municipal include: to convene the municipal council (§ 47 section 1 GO NW), to set the agenda (§ 48 section 1 GO NW) and to open and to close the meeting (§ 51 section 1 GO NW). According to § 62 section 2 phrase 1 GO NW, the mayor has the right and the obligation to prepare the decisions of the municipal council and the municipal boards.

bb) The Direction of the Administration, § 62 section 1 phrase 2 GO NW

According to § 62 section 2 phrase 1 GO NW, the mayor is responsible for the direction and the supervision of the business routine of the administration. That means that the mayor directs and distributes the business (§ 62 section 1 phrase 3 GO NW).

cc) The Representation of the Municipality, § 63 section 1 GO NW

According to § 63 section 1 GO NW, the mayor represents the municipality. That means that the mayor represents the municipality when the municipality issues administrative acts and concludes public law and private law contracts.[6]

c) The Deputies of the Mayor

The mayor may be represented by honorary deputies (§ 67 GO NW) and the general deputy (§ 68 GO NW).

aa) The Honorary Deputies of the Mayor, § 67 GO NW

The honorary deputies represent the mayor at the presidency of the municipal council’s meetings and at the representation of the municipality. They are elected from the midst of the municipal councillors.

bb) The General Deputy of the Mayor, § 68 GO NW

The general deputy is appointed by the municipal council (§ 68 section 1 phrase 1 GO NW). He is a “Beigeordneter”, i.e. a municipal elective official.[7] Unlike the other “Beigeordnete”, the general deputy of the mayor does not only represent the mayor in their field of activity (§ 68 section 2 phrase 1 GO NW), but in all fields of activity which do not fall into the competency of the honorary deputies.[8]

3. The Municipal Board, § 57 section 1 GO NW

According to § 57 section 1 GO NW, the municipal council has the right to establish municipal boards. The importance of the municipal boards lies in the possibility to prepare important questions in a small body, to prepare the decision taking of the municipal council and thus to unburden the municipal council.[9]

a) The Creation of the Municipal Board

The creation of the municipal board is regulated by § 58 section 1 phrase 1 GO NW.

aa) The Creation of the Municipal Board by a Decision of the Municipal Council

In order to create a municipal board, the municipal council has to adopt a decision. This decision must include: the competencies of the board, the number of board members, whether and how many well-informed citizen shall become board members (§ 58 section 3 GO NW) and whether and how many well-informed inhabitants shall become board members (§ 58 section 4 GO NW).[10]

According to § 21 GO NW, inhabitants are those who live in the municipality (section 1), citizens are those who have the right to vote (section 2). The election of the board members is regulated by § 50 section 3 GO NW.

bb) The Obligation of the Municipal Council to Create a Municipal Board

In principle, the municipal council is free to decide whether to establish a municipal board or not.[11] However, in special cases prescribed by the law, the municipal council is under the obligation to establish a municipal board. For example, this is the case for: the main board (§ 57 section 2 phrase 1 GO NW), the financial board (§ 57 section 2 phrase 1 GO NW), and the audit board (§ 57 section 2 phrase 1 GO NW).

b) Types of Municipal Boards

Among the most important municipal boards are the main board and the financial board.

aa) The Main Board, § 59 section 1 GO NW

The main board is of special importance.[12] It has to co-ordinate the work of all municipal boards (§ 59 section 1 GO NW). In urgent cases, i.e. if the municipal council cannot be convened on time, the main board can decide instead of the municipal council (§ 60 section 1 phrase 1 GO NW).

bb) The Financial Board, § 59 section 2 GO NW

According to § 59 section 2 GO NW such a decision-making power is also granted to the financial board in case of decisions which are necessary for the execution of the budget (§ 79 GO NW). The municipal council can transfer the tasks of the financial board to the main board according to § 57 section 2 phrase 2 GO NW.

c) The Organisation of the Municipal Board

One of the most important tasks in the organisation of the municipal board is the agenda, which is set by the board chairman.

aa) The Board Chairman

In principle, the municipal board appoints the board chairman from the midst of the municipal councillors who are member of the municipal board (§ 58 section 5 GO NW). However, this does not apply to the main board where the mayor is the board chairman (§ 57 section 3 phrase 1 GO NW).

bb) The Agenda of the Municipal Board

If the mayor is not the board chairman, the board chairman sets the agenda “im Benehmen” with the mayor (§ 58 section 2 phrase 2 GO NW). “Im Benehmen” means that the board chairman has the obligation to discuss the agenda items.[13]

III. The Control of Executive Municipal Authorities in Germany

The state control of the municipalities is the correlate of the local self-government.[14] It depends on the tasks which the municipalities fulfil in concreto.[15] The German law distinguishes between external control and internal control of executive municipal authorities.

1. The External Control of Executive Municipal Authorities in Germany

The external control of executive municipal authorities in Germany consists of the general and the special supervision of the municipality. In the case of instruction-free tasks, the municipalities are only subject to the general supervision according to § 119 section 1 GO NW. However, if the municipalities fulfil a task of instruction, there are subject to a special supervision according to § 119 section 2 GO NW. If the municipalities act by commission of the federal state, they are subject to the right of instruction according to § 16 LOG (Landesorganisationsgesetz Nordrhein-Westfalen, State Organisation Act of the Federal State of Northrhine-Westphalia).

a) The General Supervision of the Municipality, § 119 section 1 GO NW

§ 119 section 1 GO NW defines the general supervision as the supervision which is exerted by the federal state and which shall assure that the municipalities are administered in conformity with the laws.

b) The Special Supervision of the Municipality, § 119 section 2 GO NW

As far as the municipalities fulfil tasks of instruction (§ 3 section 2 GO NW), they are subject to a special supervision which is regulated by the laws governing these tasks of instruction (§ 119 section 2 GO NW).

c) The Right of Instruction, § 16 LOG NW

According to § 16 LOG NW, the municipalities are bound by the instructions of the supervisory authorities if they execute federal law which the federal state implements on behalf the federation (article 85 GG, Grundgesetz, Basic Law). The same applies, as far as the federal government gives single instructions in the particular cases of article 84 section 5 GG which the German Basic Law does not concretise.

2. Internal Control of Executive Municipal Authorities in Germany

The internal control of executive municipal authorities in Germany consists of the right to object (a)) and the right to veto (c)). In some cases, there is even an obligation to object (b)). The difference between the two means of internal control – objection and veto – lies in the authorities entitled to exert these means of internal control: While in case of the objection, it is only the mayor, in case of the veto, municipal board members also have the possibility to exert internal control under the conditions mentioned in § 57 section 4 phrase 2 GO NW.

a) The Right to Object, § 54 section 1 GO NW

According to § 54 section 1 phrase 1 GO NW, the mayor has the right to object to municipal council’s decisions if he is of the opinion that the municipal council’s decisions endangers the welfare of the municipality. The objection has a delaying effect, § 54 section 1 phrase 2 GO NW.

b) The Obligation to Object, § 54 sections 2 and 3 GO NW

According to § 54 section 2 and 3 GO NW, the mayor has the obligation to object to municipal council’s decisions or municipal board’s decisions if these decisions are illegal.

c) The Right to Veto, § 57 section 4 phrase 2 GO NW

According to § 57 section 4 phrase 2 GO NW, the mayor and a fifth of board members have the right to veto a decision of a board with decision-making power. The municipal council decides on the veto, § 57 section 4 phrase 3 GO NW. As the objection, the veto also has a delaying effect, § 54 section 2 phrase 2 GO NW.

IV. Outsourcing of Certain Activities in Germany

Outsourcing becomes ever more attractive in the local administration:[16] Each tenth authority already uses outsourcing to offer services; 68 of the 100 asked decision makers of the public authorities, by their own account, have already realised one or more outsourcing projects and are quite content with the results; further 25 percent plan a short term placing of outsourcing projects. However, the German outsourcing market in the public sector in 2003 amounts to only approximately ten percent of the British outsourcing market in the public sector.[17] In comparison to other European countries, German authorities hesitate to outsource especially in the area of IT (Information Technology).[18]

1. A Definition of Outsourcing

In general, outsourcing can be defined as followed: “Outsourcing is work done for a company by another company or people other than the original company's employees. Outsourcing entails purchasing a product or process from an outside supplier rather than producing this product or process in-house.”[19] Outsourcing is seen as a solution to IT problems within the administration which integrates external service provider into the administration process.[20] In comparison to the outsourcing of new tasks or activities, the outsourcing of existing tasks or activities is the basic form of outsourcing; it is the most prevalent in Europe.[21]

2. The Aims of Outsourcing

Outsourcing unburdens the public budget,[22] creates financial scopes in other areas and enables a better service for the citizens.[23] The public authorities shall therefore use outsourcing as a mainstay of administrative modernisation.[24] Incentives for outsourcing shall be integrated in laws.[25]

3. Possible Areas of Outsourcing

While in the past years outsourcing concerned predominantly real estate property management and EDP maintenance, now citizen services, IT-systems and complete business processes in the trend of outsourcing. In principle, almost all administrative procedures in the area of personnel management can be outsourced. There are numerous possibilities for the local administration to outsource certain functional areas in order to provide services more efficiently.[26] These areas are: personal and travel expenses account,[27] time data account, personnel management,[28] organisation management, applicant management, meeting management, remuneration management, personnel development, personnel costs planning, pension scheme.

4. Requirements of Outsourcing

If the local administration wishes to outsource certain activities, it has to consider finances, relief of the administration, personnel availability and data security.[29] There are specific requirements in the public sector of outsourcing which may explain why the German public authorities use the potential of outsourcing less than the private economy:[30]

a) The Obligation of Tendering

In general, an outsourcing project must be tendered because of its size. In order to evaluate and to compare the tenders, appropriate criteria must be defined. This is difficult in a complex project with several years of term. The obligation to tender is based on the German Placing Decree (Vergabeverordnung). The Placing Law in Germany, especially the Placing Decree, is based on several EC Regulations concerning the placing in different economic areas. In the area of outsourcing, especially the EC Regulations concerning the coordination of procedures for the award of public service contracts, public supply contracts and public works contracts respectively[31] are of interest.

b) Proof of Cost Effectiveness of Outsourcing

In general, the public placer must prove for each outsourcing project that the private providing of services is more cost effective than a self-execution. Thereby, it is difficult to get a reliable projection of external and internal costs. Benchmarks of the private economy can only be used partly because of data protection.

5. Legal Restrictions of Outsourcing by the Example of IT

Among the legal restrictions of outsourcing by the example of IT, one can name restrictions based on labour law and those based on data protection law.

a) Labour Law Restrictions of Outsourcing

A very important legal aspect of outsourcing to private companies is the legal regulation of business transfers according to § 613a BGB (Bürgerliches Gesetzbuch, German Civil Code).[32] This provision of law regulates the legal relationship between the new employer and the employee and assures the income and the social contribution of the employees. The new employer faces the difficulty that some labour contracts can actually not be terminated because of collective labour agreements; furthermore, the new employer has to consider employees with the status of civil servants.[33]

This explains why the public authorities outsource mostly new tasks to private companies. These new tasks can theoretically be carried out by the administration, but the administration lacks qualified personnel. These projects can also be qualified as service contracts.[34]

b) Data Protection Law Restrictions of Outsourcing

The public authorities deal with many sensitive citizen data when they fulfil their tasks. Therefore they have a special responsibility with regard to the data which the citizens confide to them mostly not by their own choice. Regulations concerning the fiscal secret, the social welfare secret and the statistics secret restrict the scope of technically possible outsourcing projects. A part of these regulations serves also to the protection of personal rights. In the following cases, outsourcing is often only possible if the data is anonymised or pseudonymised and if only the authority can connect to the citizen.[35]

aa) The Restriction of Outsourcing by the Federal Data Protection Act and the States Data Protection Acts

Outsourcing is restricted by the Federal Data Protection Act and the states Data Protection Acts.[36] According to § 1 BDSG, the aim of the Federal Data Protection Act is to protect the individual person from any interference in his personal rights by the use of data related to his person. The scope of application of the Federal Data Protection Act, according to § 1 section 2 no. 3 BDSG, is of special interest in the field of outsourcing: The Federal Data Protection Act also applies to non-public offices, as far as they process the data using data-processing systems, use or raise the data in or out of not automated files unless the collection, processing or use of the data is effected exclusively for personal or family activities. The Data Protection Acts of the federal states have similar provisions.

bb) The Restriction of Outsourcing by Regulations Concerning the Fiscal Secret

Outsourcing is restricted by regulations concerning the fiscal secret. § 20 section 2 FVG (Finanzverfahrensgesetz, German Financial Procedure Act) permits the competent state finance authorities to transfer secondary technical activities to automatic devices of responsible bodies. According to § 30 section 6 AO (Abgabenordnung, German Revenue Code), the automated retrieval of data is only allowed in the following procedures: administrative procedure, audit procedure, tax trial, tax penal trial and tax fine procedure. In order to keep the fiscal secret, the Federal Finance Minister can regulate by a decree the technical and organisational measures to be taken against unauthorised retrieval of data.

cc) The Restriction of Outsourcing by Regulations Concerning the Social Welfare Secret

Outsourcing is restricted by regulations concerning the social welfare secret. § 80 section 5 SGB X (Zehntes Buch des Sozialgesetzbuches, Tenth Book of the Social Law Book) permits non-public offices to collect, process and use social welfare data under two conditions: first, if otherwise failures can appear in the business process of the client; second, if the contractor gets the delegated job done to a substantially cost-efficient price and the job does not cover the totality of data of the client. For the preponderant part of the storage of the totality of the data must stay within the public authorities.

dd) The Restriction of Outsourcing by Regulations Concerning the Statistics Secret

Outsourcing is restricted by regulations concerning the statistics secret. These can be found in the states Statistics Acts.[37] For instance, § 14 section 1 of the Statistics Act of Baden-Württemberg states that single specifications, which are made for a land or a local statistics and which can be assigned to the interrogated or concerned person are to be kept secret by the persons entrusted with the execution of the statistics.

6. The Procedure of Outsourcing

A responsible person for Information Technology has to sort out which areas can be outsourced and which competencies must stay within the authority.[38]

C. Models of Legal Acts on the System (Structure) of “Executive Municipal Authorities” in France

French legal acts shall be given to the following areas of interest: After a short overview over the French municipal administration (I.), the executive municipal authorities shall be listed for France and their creation and organisation shall be described (II.). How control of executive municipal authorities is organised in France is subject of the next part (III.). The section ends with a paragraph showing the outsourcing of certain activities in French administration (IV.).

I. The Municipal Administration in France

In France, the municipalities were created by the Act of 14 December 1789. There are approximately 36.500 municipalities of different sizes, ranging from the smallest villages to Paris. Except for the capital and two big cities, Lyon and Marseilles, the municipalities are all subject to the same legal framework. The Act of 2 March 1982[39] reinforced the competencies of the municipalities. The Act of 6 February 1992[40] relating to the Territorial Administration of the Republic strengthened the local authority: it introduced a new distribution of tasks between the central administration and the decentralised service. Its aim was to modernise and to democratise the municipal life by improving the life of the inhabitants of the municipalities, by reinforcing the rights of the elected officials of the assemblies and by improving the legal control.[41]

II. The Creation and Organisation of Executive Municipal Authorities in France

In the following, the creation and the organisation of executive municipal authorities shall be described for France.

1. The Creation of Executive Municipal Authorities in France

In France, there are two bodies of municipal administration: the municipal council on one hand and the mayor and his assistants on the other hand (Article L. 2121-1 CGCT, Code Général des Collectivités Territoriales, French General Law on Territorial Corporate Bodies).

a) The Election of the Municipal Council

The election of the municipal council is regulated, according to article L. 2121-3 CGCT, in the articles L. 1 to L. 118-3, L. 225 to L. 270 and L. 273 CE (Code Electoral, French Electoral Code). The municipal council consists of municipal councillors which are elected by the population of the municipality for six years. Since 1982, there are two election modes which coexist for the election of the municipal councillors.[42] In municipalities with less than 3.500 inhabitants, it is the majority election with two turns while the municipal councillors of municipalities with more than 3.500 inhabitants are elected in a proportional election. However, one mandate of two is at least distributed to the majority election list (absolute majority in the first turn and relative majority in the second turn). The remainder is distributed to the election list with the best average on the condition of having obtained at least 5% of the votes. The mandate is accessible to any French elder than 18 years.

b) The Election of the Mayor

The municipal council elects the mayor and his assistants from its midst in its first meeting (article L. 2122-1 and L. 2122-4 CGCT).

2. The Organisation of Executive Municipal Authorities in France

Among the executive municipal authorities whose organisation shall be described are the municipal council and the mayor.

a) The Organisation of the Municipal Council

The municipal council consists of a number of municipal councillors which varies between nine for the municipalities of less than 100.000 inhabitants and 69 for those of more than 300.000 inhabitants (article L. 2121-2 CGCT). The municipal council meets at least once per trimester after convocation by the mayor (articles L. 2121-7, L. 2121-9 and L. 2121-10 CGCT). The public meetings are chaired by the mayor (articles L. 2121-14 and L. 2121-18 CGCT) and the deliberations must be published at least by a posting at the town hall (articles L. 2121-24 and L. 2121-25 CGCT).

[...]


[1] ”Report on the Local Government Reform and its Financial Support”, held to the Federal Council on the 21.02.2007 by Yakovlev, Minister of Regional Development of the Russian Federation.

[2] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 56.

[3] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 57.

[4] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 58.

[5] BayVGH, BayVBl. 1984, p. 667; Schröder, in: Achterberg/Püttner, Besonderes Verwaltungsrecht II, margin number 50; Waechter, Kommunalrecht, 1997, margin number 284; all cited in Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 167.

[6] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 298.

[7] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 328.

[8] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 324.

[9] Rehn/Cronauge, § 57 note I, cited in Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 251.

[10] Held/Becker/Decker/Kirchhof/Krämer/Wansleben, Kommunalverfassungsrecht Nordrhein-Westfalen, 2003, § 58 GO, note 2, cited in Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 255.

[11] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 252.

[12] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 253.

[13] Hofmann/Muth/Theisen, Kommunalrecht in Nordrhein-Westfalen, 2001, p. 399 et seq., cited in Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 272.

[14] BVerfGE vol. 26, p. 105 (108).

[15] Hemmer/Wüst/Christensen/Kresser, Kommunalrecht Nordrhein-Westfalen, margin number 83.

[16] Study of the management and technology service provider Accenture in co-operation with the Fraunhofer Institute, cited in Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

[17] Bereszewski, Ämter für Outsourcing.

[18] Study ”Öffentlicher versus privater Sektor: Einstellungen zu externen IT-Dienstleistungen” of the British market research company Benchmark Research on behalf of the IT service provider Steria, cited in Hill, Kommune 21 2005, p. 18.

[19] The DigitalM, “Outsourcing (Offshoring): Where are we headed?“, Volume 2, Issue 11, December 15, 2003, http://www.digitalm.biz/Issues/Dec03/outsourcing.html, last access 13 July 2007.

[20] Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

[21] BITKOM, Leitfaden IT-Outsourcing, p. 11.

[22] Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

[23] Peter Broß in an interview with Rainer Hill, Kommune 21 2005, p. 19.

[24] Peter Broß in an interview with Rainer Hill, Kommune 21 2005, p. 19.

[25] Peter Broß in an interview with Rainer Hill, Kommune 21 2005, p. 19.

[26] Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

[27] BITKOM, Leitfaden IT-Outsourcing, p. 9.

[28] BITKOM, Leitfaden IT-Outsourcing, p. 9.

[29] Janssen/Bereszewski, Outsourcing wird für Behörden attraktiver.

[30] BITKOM, Leitfaden IT-Outsourcing, p. 16.

[31] For example: OJ L 328, 28.11.1997, p. 1–59.

[32] BITKOM, Leitfaden IT-Outsourcing, p. 11.

[33] BITKOM, Leitfaden IT-Outsourcing, p. 15.

[34] BITKOM, Leitfaden IT-Outsourcing, p. 11.

[35] BITKOM, Leitfaden IT-Outsourcing, p. 16.

[36] BITKOM, Leitfaden IT-Outsourcing, p. 15.

[37] BITKOM, Leitfaden IT-Outsourcing, p. 16.

[38] Bereszewski, Ämter für Outsourcing.

[39] Ordinary Law no. 82-213, Official Journal "Lois et Décrets" of 3 mars 1982, p. 730.

[40] Law no. 92-125, Official Journal of the French Republic 1992, p. 2064.

[41] http://playmendroit.free.fr/droit_administratif/l_administration_decentralisee.htm, last access 28 June 2007.

[42] http://playmendroit.free.fr/droit_administratif/l_administration_decentralisee.htm, last access 28 June 2007.

Details

Seiten
43
Jahr
2007
ISBN (eBook)
9783640876693
ISBN (Buch)
9783640876945
Dateigröße
635 KB
Sprache
Deutsch
Katalognummer
v169355
Note
keine Angabe
Schlagworte
system municipal authorities” selected eu-member states angabe

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Titel: The System (Structure) of ”Executive Municipal Authorities” in Selected EU-Member States