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Municipal Task Evolution

Hellmut Wollmann

Is Germany`s Traditional Type of Local Self-Government Being Phased out?

1. The traditional type of local government in Germany
    1.1 Functional tasks
    1.2 Municipal political model
    1.3 Germany's traditional local government type in comparative perspective
2. The traditional local government model under besiege on three fronts: EU Liberalization Policy, New Public Management/Neues Steuerungsmodell and budgetary crisis
    2.1 EU policy goals, strategies and instruments
    2.2 New Public Management/Neues Steuerungsmodell as a change agent
    2.3 The budgetary crisis as a "whip" of change
    2.4 Assessment of the impacts on the traditional local government model
3. "Lines of defense" for the traditional model of municipal self-government
    3.1 EU level
    3.2 Intra-German intergovernmental level
    3.3 Local level

Notes
References

Abstract:
The traditional model of municipal self-government in Germany is characterized by a distinctly political democratic profile and a broad range of functions and responsibilities . The German municipal model ranks alongside the Scandinavian among the politically and functionally strongest types of local government in international comparison. Yet, in recent years, this model has come under pressure from three different angles. Firstly, the European Union's market liberalization policy is jeopardizing traditional municipal public services (water, sewage, waste disposal, energy, local savings banks). Particularly at risk are common good-oriented forms of organization and activity. Secondly, implementation of New Public Management could lead to more and more municipal tasks being outsourced to self-standing organizations and companies, if not completely privatized, thus further undermining the type of local administration responsible to and controlled by political bodies and democratic processes. Thirdly, as the financial crisis of local government intensifies, fears are growing that ever more social, municipal and other fields of responsibility will be "hollowed out". This article presents a conceptual and empirical discussion of these trends. It will conclude by addressing "lines of defence" at European, federal, Land, and local level.

Since the beginning of the 1990s the traditional model of municipal self-government in Germany has experienced a tidal wave of change, stemming from the economic, political and international trends known as globalization as well as from EU policies designed to create a common market.

Has the impact of these (external) factors led the traditional model of local self-government in Germany being phased out?? That is the question this article addresses.

 

1. The traditional type of local government in Germany

 

1.1 Functional tasks

German local government has traditionally shown, as it were Janus-like two faces. On the one hand, municipalities have "right to regulate all matters relevant to the local community ("örtliche Gemeinschaft") on their own responsibility within the frame of legislation" (Article 28, Paragraph 2, Clause 1 of the Basic Law; cf. Stern 1981). On the other hand, the local authorities can be put in charge, by the federal and Land governments, to carry out "delegated" tasks.(1) 

The broad range of tasks and responsibilities performed by local government reflects a basic feature of Federal Republic´s intergovernmental design and setting. Roughly speaking, legislation and policymaking are primarily the responsibility of the federal government and are therefore centralized (although Land governments also play a major role in shaping national legislation via the Federal Council, Bundesrat), but administration, including implementation of federal laws and policies, is heavily decentralized and deconcentrated. Carrying out federal law and administering federal policies is generally the task of the Länder. The Länder have, on their part, left most of the administrative and implementation functions to the local authorities. Hence, the lion's share of public functions falls to the local authorities, particularly those involving direct contact with citizens. There are, of course, exceptions. The operation of the school system as well as of the police are traditionally under the direct administrative responsibility of the Länder. In sum, the local authorities implement an estimated 70 to 85 percent of all national legislation, and recently most EU legal provisions too, (cf. Schmidt-Eichstaedt 1999: 300). They also handle two thirds of all public investment.

Organizationally this traditional type of the local authoritize finds its expression in the territorially defined multi-function "unitary" model of local government which can be regarded as a salient feature of Germany´s intergovernmental political and administrative system at large.(2) 

Territorial reforms of local government (by way of amalgamation) as well as functional reforms (by devolving further responsibilities to the local authorities) have intensified and strengthened this territoriality-based, multifunctional organizational principle and logic of local government. These reforms were carried out in West Germany in the 1960s and 1970s and in the East German Länder in the 1990s (cf. Laux 1999).

Although Germany's constitution legally declares it a two-tier system consisting of the Federation and the Länder with the local government level being, constitutionally speaking, a part of the Länder, in practical (and particularly functional) terms a three level system exists with the local government layer playing a self-standing role (cf. Thieme 1981: 142 f.; Dieckmann 1999: 293).(3) 

In the following some exemplary fields of local government responsibilities will be singled out in order to illustrate and demonstrate the profile of tasks and responsibilities in the German local government tradition.

Local social policyThe German local government model is characteristically a "local welfare state". It has its historical origins in the poor laws of the Middle Ages which be seen, the forerunners of state social policy. The Bismarckian social legislation of 1871 onward typically created a "ion splitting of the welfare state" (Leibfried/Tennstedt). On the one hand, it geared the new social security scheme (which was a contribution-based insurance system) to the status of being employed. On the other hand, the local authorities continued to be solely responsible for administering and financing the social assistance scheme which was a "social net of last resort" for the needy not covered by the general social security schemes. This basic principle of "the local welfare state" has remained peculiar of the German local government. It has been incorporated into the Federal Social Assistance Law of 1961 and peaked in the early 1970s with the extension of the legal entitlements to "assistance in exceptional life circumstances" and in the readiness of many local authorities to make voluntary contributions to the social services (cf. Jaedicke et al. 1990: 34 ff.). Yet, unemployment began to rise dramatically in the mid-1970s, and in the 1980s it assumed crisis proportions. The increasing numbers of the jobless turning to social assistance benefits financed by the local authorities, made the latter´s social expenditure skyrocket (cf. recently Karrenberg/Münstermann 2002: 50 ff.). As a result, the traditional concept and financing of the "local welfare state" began to cause mounting budgetary problems for the local authorities concerned. In response to the increasing pressure from unemployment on the their social policy expenditures the local governments began to tackle local measures to combat unemployment in order to get social assistance seeking unemployed off the local payroll. We will return to this below.

At this point it should be borne in mind that that social services ( kindergartens, retirement homes, youth centers etc.) are, under the traditional subsidiarity principle, largely delivered by charitable institutions (Wohlfahrtsverbände), that is, by. non-public, non-profit-making organizations, typically affiliated with the churches and the trade-unions. Local authorities are held to "enable" social services (to use current jargon) but not "provide" them themselves (cf. Backhaus-Maul 1999).

Provision of public utilitiesAnother traditional local government activity also emerged in the late 19th century. The mushrooming urban population obliged local authorities to take on new responsibilities in the crucial fields of gas, electricity and water supply, sewage, waste removal and public transport (cf. von Saldern 1999: 30 ff.; Püttner 1999: 541). This sector of activities, usually known as Daseinsvorsorge (4), was traditionally governed by the notion that local authorities should act in the interests of "the common good of the local community". As in the original German Local Government Law of 1935, the local government charters of the individual Länder stipulate that all municipal economic (and non-economic) activity need to be "justified" by some "public interest". Held (2002, footnote 10), cites the pertinent legal provisions. Depending on the field of activity, local authorities deduce political and legal justification from such "common good" or "public interest" formula in order to set up some kind of local monopoly or or " protected market" One way of doing this is to pass a local by-law which makes the use, for instance, of the municipal water and sewage system compulsory.

The repertoire of institutions which local authorities conventionally employ for the provision of public utilities (cf. Richter 2001: 401) comprises Regiebetriebe (municipal enterprises operated by an intra-administrative agency) Eigenbetriebe (which are run as organizationally and economically independent companies, but remain local government-owned) as well as Eigengesellschaften (which, legally and organizationally, are limited companies or joint stock corporations, often mixed municipal-public-private ownership). For a long time the Regiebetriebe and Eigenbetriebe prevailed, mainly to ensure the influence of the local authorities on their operations (cf. Held 2002: 16). More recently, increasing use has been made of Eigengesellschaften, "because the GmbH (limited) status gives the shareholder (the municipality) greater freedom to structure the partnership agreement" (Richter 2001: 401). Exemplary of the activities of local government in the public utility sector are the so called "municipal works" (Stadtwerke) which are local government owned enterprises, often organized as Eigenbetriebe, which typically combine the supply of electricity, gas, water and heating.The, as it were, holistic concept of local policymaking that underlies the local provision of public utilities (Daseinsvorsorge) demonstrates itself in the strategy of using surpluses, made in "profitable" types of public utilities (particularly electricity and gas supply), for "cross-subsidizing" deficit-generating activities, e.g. public transport (cf. Püttner 1999: 543).

The scope of locally provided public utilities has traditionally been remarkably wide. In the early 1990s, for instance, 95 percent of waste disposal, 30 percent of the electricity supply and 70 percent of the gas supply were operated by local government-owned organizations and enterprises (Reidenbach 1995: 84). The entire local government-run local economic sector currently employs 130,000 people and invests approximately 11 billion marks per annum (cf. Schöneich 2001: 143; von Kodolitsch 2002).

The case of the local savings banks, Sparkassen, is exemplary of the traditional profile of the provision of public utilities and public services. In a tradition which also dates back to the 19th century the local savings banks have been founded and are owned by the municipalities and counties Operating on a non-profit formula (5), their "founding" idea was to provide easily accessible and more affordable banking services for the "local residents" as well as for local businesses.(6) On the one hand, the municipalities and counties give "their" individual saving bank a competitive advantages over the private business banks by assuming a guarantor function for it. On the other hand, they have also benefited from "their" banks by having privileged access to low-interest loans, including short-term borrowing in order to bridge liquidity bottle-necks.

In sum, in the past the local government-related organizations and companies that have operated in the broad field of public utilities have enjoyed significant competitive advantages which were seen as justified by their "common good" mandate. These competitive advantages ranged from the gurantor function of local government for the local savings bank to quasi-monopolies or "sheltered markets" by way of local by-laws (for instance making the use of certain supplies obligatory). At However, since long they have had to compete against private companies in other areas, e.g. housing, retirement homes (cf. von Kodolitsch 2002: 11 for further references).

Cultural activitiesAnother typical field of traditional activities of local government are cultural services and facilities. These include local theatres, museums, libraries, music centers, adult education centers, etc. (cf. Glaser 1999). Exemplary, if not unique, is the amazing density of local theatres.(7) 

Other municipal responsibilitiesIt should, furthermore, be recalled that the local authorities have, over the years, exhibited remarkable competence and also innovativeness in coping with new tasks and challenges. This was particularly true in the first years after the Second World War. Even before the new Land structures had been formed , it was primarily up to municipalities and counties to tackle the unparalleled social problems and destruction caused by the war. In a similar vein, in the 1960s and 1970s local authorities had to adapt to new tasks, for instance, in urban renewal and environmental protection. As a recent striking example, vis-a-vis the enormous institutional upheaval and socio-economic problems that accompanied the secular process of German Unification, it was again the municipalities and counties in East Germany that addressed these issues still before the (East German) Länder were re-established. At the same time the West German municipalities and counties showed great flexibility and commitment in assisting their East German counterparts in this crucial phase (cf. Wollmann 1997).

 

1.2 Municipal political model

The political status of local government in the Federal Republic's intergovernmental system still remains somewhat controversial (cf. Wollmann 1999b; Ott 1994 with further details on the debate). On the one hand, constitutional lawyers still hold that local government level is to be interpreted as forming an constituent part of the administrative structure of the Länder from which it would follow that the local councils have be seen and treated, first of all, as administrative organs rather than as local parliaments. (cf. Knemeyer 1989). On the other hand, reference is made of a provision in the Federal Constitution of 1949 (article 28, para. 1) which stipulates the democratic election of "representative bodies" in the Länder as well as in the counties and municipalities, whereby, it is argued, the local councils have been put on the same constitutional footing as the Länder parliaments (see. Schmidt-Eichstaedt 1985: 31, Wollmann 1999b: 61).

It should also be recalled, in this context, that the local government level has been increasingly "politicized" since the 1950s as the political parties have entered the local political arenas, starting with the larger cities and progressing to medium-sized and smaller towns. The political parties have come to play an ever greater role in local government (cf. Holtmann 1999). Hence, local politics has been more and more shaped by party competition, not least in the local councils where, surfacing their underlying parliamentary feature, party groups have become the key political players and where the political game has been following the line-up between "government majority" and "oppositional minority". These de facto changes have gradually been recognized de jure in the local government charters as amended by the Länder parliament. For example, party groups and council minorities have been granted certain procedural rights (cf. Wollmann 1999b: 56 ff. for details). Duing the 1970s in some Länder provisions were inserted in the local government charters which introduced the vote of non-confidence by which, by a qualified majority vote vote, the local council could remove the major from office, thus moving local government moving even closer to a local "parliamentary system" (cf. Wollmann 1998: 409 f.).

Furthermore, it seems indicative that the voter turnout in local council elections has, over the years, been comparatively high in Germany.(8) The current average is approximately 60 percent (cf. Wollmann 2001: 44; Gabriel 1995: 27). This suggests that local government is culturally and normatively "accepted" and supported by the local residents. It should finally be borne in mind is that the recent expansion of direct democratic citizens' rights, thanks to the introduction of local referenda and of direct election of the mayor, including the provisions for "recalling" him/her by referendum/her (cf. Wollmann 2001a), has accentuated the political profile of local government.

 

1.3 Germany's traditional local government type in comparative perspective

Notwithstanding the manifold legal and financial restrictions to which German local government is exposed in exercising its local government powers and responsibilities (which shall not and cannot be taken up at this point) the assessment of German local government as being, under political as well as functional auspices, still remarkably strong is supported and corroborated by internationally comparative work.

In their comparative analysis, Hesse and Sharpe (1991: 605) categorize Germany alongside the Scandinavian countries in the "North Middle European Group". Their typology is based on the political and functional strengths and weaknesses of various local government systems. The North Middle European Group is characterized by them on political and functional strength (cf. Wollmann 2000b: 124 f.).(9) 

Goldsmith (1999) has also used a two-dimensional "autonomy indicator" to conduct international comparisons. On this basis he ascribed to German German local government the comparatively highest degree of local autonomy.

Finally, a recently published study, which aimed to compare the performance of local authorities in the United States, France and Germany, adopted a remarkably different model and empirical approach and examined four German, three U.S. and three French cities. According to his findings, the German cities fared considerably better than the French and very much better than their American counterparts (cf. Sellers 2002a: 52 ff.; Sellers 2002b).

 

2. The traditional local government model under besiege on three fronts: EU Liberalization Policy, New Public Management/Neues Steuerungsmodell and budgetary crisis

In conclusion, we offer some thoughts on which institutional, legal and political "lines of defense" exist to protect and secure the basic features of the traditional model of municipal self-government in Germany in the face of the challenges which we looked at in this paper. We shall deal, in sequence, with the pressures posed at European, national and local level.

 

2.1 EU policy goals, strategies and instruments

The prime goal of EU policy has been to create "a space without internal frontiers" (Article 2 of the Treaty on European Union) and to establish a common market as "one internal market" (Article 2 of the Treaty Establishing the European Community). This market is to be "characterized by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital" (Article 3, Paragraph 1, lit. c TEU). Politically and ideologically the EU's current goals to open up markets and competition are clearly guided by the neo-liberal tenets which have dominated the international economic and political discourse since the early 1980s. The Anglo-Saxon countries have been the main driving force behind this approach, which has found prominent advocates within the Organization for Economic Cooperation and Development (OECD) (cf. Naschold 1995: 68 f.). One of the central messages and demands of New Public Management (NPM) is to curtail the responsibilities of the welfare state (which burgeoned particularly in the 1960s and 1970s), and to reduce the latter to to the "core functions" of a "lean state". The government would be restricted to an enabling function to ensure the provision of the remaining public functions and services. The actual service provision should be done by non-public organizations and companies, which would have to bid for contracts.

The EU's liberalization, competition and contracting policies chiefly aim to break still existing monopolies and open "protected" markets in (both private and public) service provision within the Member States (cf. Trapp et al. 2002: 248). Consequently, both the traditional forms and especially the traditional idea of the provision of public services and public facilities by German local government have become prime targets of EU policy. The same applies to the "shielded local markets" meant to locally promote and generate "common good" services (cf. Dieckmann 2001: 22). The German local government associations have warned of "an exaggerated EU pro-competition policy"(10) and have demanded "a sensible balance between competition and tasks promoting the common good in the public service and public utility sector".(11) 

Article 16 of the EC Treaty, which was reintroduced as part of the Treaty of Amsterdam package of 1 May 1999, expressly recognizes "services of general economic interest", which certainly include the provision of public utilities (cf. Trapp et al. 2002: 235). Moreover, on 20 September 2000 the EU Commission published a bulletin on the provision of public utilities (Daseinsvorsorge) in Europe", which signals some watering down of its competition-related policy . However, the basic message of the programme remains unabated: "The government should generally leave the provision of public utilities and services to market forces and also... restrict itself to enabling the fulfilment of common good-related tasks by the appropriate providers" (Schuppert 2001: 410).(12) 

The following furnishes an overview of the conflicts and their repercussions by discussing three core areas of public utilities.

  • Electricity supply. Traditionally, the "municipal works" (Stadtwerke) provided electricity to local homes and businesses. Their revenue and profits were an important source of income for the municipal budget and helped in many ways to "cross finance" local services running at a loss (particularly public transport). They were thus an asset and lever for "holistic" local policy-making. The EU guideline on electricity, and the ensuing amendment of 29 April 1998 to the (federal) Energy Management Act, have drastically altered the conditions for local electricity suppliers. Access to the mains was thrown open to competitors (cf. Deutscher Städtetag 1999: 116 f.). Admittedly, individual consumers initially benefited from lower electricity prices arising from the choice of power suppliers. However, this development threatens to inflict lasting damage on the environment, and is thus a denial of one of the needs of the "local community" and beyond. Now even municipal utilities are having to yield to short-term economic pressures. They are abandoning ecological approaches of generating electricity (e.g. co-generation of heat and power) (cf. Deutscher Städtetag 2002: 111) and local energy-saving concepts (cf. Müschen 1999: 68 ff.). In the meantime, however, many "municipal works" (Stadtwerke) (particularly those that supply electricity rather than those than generate it) seem to have adapted remarkably well to the new competitive conditions (cf. Libbe et al. 2002: 11). Recent federal legislation, such as the Renewable Energy Act and amendments to the Act on Combined Heat and Power Generation, has significantly supported this development by enabling local power stations to continue pursuing environmentally beneficial concepts (cf. Libbe et al. 2002: 11). Yet, there is a clear trend of local authorities selling their (relatively profitable) plants, whether due to competitive pressure or to financial difficulties (cf. Deutscher Städtetag 2001: 112).
  • Waste disposal. EU regulations implementing the principle of "the free movement of goods" in the area of recycling industrial waste have also prompted major changes in another traditional core activity of local government - waste disposal. In the 1970s counties (Kreise) and county-cities (kreisfreie Städte) were given full responsibility for carrying out this task. Although the (federal) Closed Substance Cycle Waste Management Act enacted in 1996 to meet EU obligations does largely follow EU guidelines, clear differences of opinion and conflicts of interest have surfaced between the EU and German players, particularly the local governments. Their main concern is where to draw the line between the disposal and the recycling of industrial waste. The EU employs a broader definition of waste recycling, which favors free competition among national and international private sector waste recycling companies. Its point of view is upheld by the Waste Framework Directive. In the opposite corner German players, particularly the Land governments and local authorities, are sparring for a broader definition of waste disposal, to ensure local government-owned waste disposal firms can work to capacity (cf. Reese 2000: 60). The local authorities fear that "categorizing most refuse as waste for recycling will undermine public waste disposal services" (Deutscher Städtetage 2001: 101). This will have a negative effect on the activity levels of local government facilities and cause instability in the waste disposal fees residents are charged (cf. Bogumil 2002: 7). European competition for "waste goods" will also put more pressure on local waste management concepts, which aim to limit traffic and material flow by not transporting waste over long distances and generally reducing the amount of waste (cf. Libbe et al. 2002: 9).
  • Municipal savings banks. Local authority-maintained savings banks, or Sparkassen, have traditionally been a pillar of the local public utility provision (Daseinsvorsorge). Their large number of neighborhood branches make them easily accessible to "the plain citizen" as well as to local private businesses. They operate according to "common good" principles (no or limited dividends) and also serve as "in-house banks" for the local authorities, providing low-interest loans to them. In return, the local authorities have traditionally take on a financial guarantor responsiblity for "their" banks. In December 1999 the European Banking Union lodged a complaint against public banks, explicitly also specifying the German Sparkassen. It particularly objected to the guarantor function of the local authorities on the ground that this would give the public banks an unfair competitive advantage (cf. Deutscher Städtetag 2001: 130). A protracted negotiation process ensued between the EU Commission and the German government (seconded by the Länder and the local governments) to decide the future status of public savings banks, particularly of the savings banks. The German side seemed to brace for a "confrontational course" (Deutscher Städtetag 2001: 130). Yet, in the "Brussels Compromise" of 17 July 2001 an agreement was reached with the EU on adapting the special guarantee arrangements of the German public banks to EU competition rules (13). The subsequent amendments to the legislation on the savings banks translated and effected these agreed upon changes.(14) 

It exceeds the scope of this article to give further details on the current or imminent liberalization processes of other traditional areas of the municipal public service sector, particularly public transport, which has come under pressure from the EU-wide mandate to invite bidding (cf. Libbe et al. 2002: 14 ff.), and water supply (cf. Deutscher Städtetage 2001: 111).

 

2.2 New Public Management/Neues Steuerungsmodell as a change agent

The fact that administration and policy modernization discourse in Germany has been increasingly influenced since the early 1990s by the ideas and demands of the neo-liberal New Public Management (NPM), derived from business administration principles, has opened up a growing number of traditional public services and utilities to the market economy. This has altered the range and the form of traditional local public services and utilities.

Until the late 1980s, the discussion about administrative reforms in Germany showed remarkable reluctance to heed international political and reform trends.(15) As a German derivation of New Public Management, the New Steering Model (Neues Steuerungsmodell, NSM) was formulated and propagated by KGS , a municipally funded non-for-profit agency which, founded in 1949, has played an authoritative role, over the years, in advising the local authorities in organizational matters. With Gerhard Banner, KGSt´s then director and mastermind, taking the conceptual and rhetorical lead (cf. Banner 1991), NSM rapidly found many adherents, first of all among the local authorities.(16) 

NSM has three basic objectives, which can be summarized as follows:

  • First, business-management-based intra-administrative modernization of the organizational and administrative structures, primarily by introducing "decentralized resource responsibility" and "performance management" forms and processes.
  • Second, redefining and strengthening management and controlling in policymaking and administration, giving the former dominance over the latter, mainly by introducing "output-oriented budget processes".
  • Third, restricting the local authorities to an "enabling" function for the provision of public services and utilities, while leaving the latter to the competition on the open market. These proposals coincide with demands, prompted by EU market liberalization, for outsourcing of public service ownership and organization. As mentioned above, the organizational repertoire is meant to include the local public organizational forms of intra-administrative Regiebetriebe and the legally dependent Eigenbetriebe. On the other hand, public services can be privatized, whether in the classic form (often called formal privatization) of handing tasks over to Eigengesellschaften, which are legally, organizationally and economically independent but which remain the property of the local community, or in the form (often called material privatization) of transferring public services to private organizations and firms (cf., for example von Kodolitsch 2002: 2 for a definition of terms). The private enterprise model, which attracts NSM advocates most, transforms local authorities into "corporations" or "holding companies". Local government activities would then be realized by a group of Eigengesellschaften with a great deal of entrepreneurial freedom (cf. Wohlfahrt/Zühlke 1999).

Many local authorities have now made extensive use of the possibilities and forms of outsourcing and have wholeheartedly embraced Eigenbetriebe and Eigengesellschaften. NSM ideas, along with budgetary pressures, spurred them to take this course of action, as "outsourced" organizational forms, geared to corporate accounting procedures, have promised to relieve or remedy their difficulties (cf. Oebbecke 2000: 13). Most frequently, services are hived off to public Eigenbetriebe and private Eigengesellschaften, particularly limited companies (cf. KGSt, Report 10 [1998] 48 ff.). Outsourcing is not restricted to municipal economic activities. All areas of local administration, including core activities such as building management, have been affected (cf. Held 2002: 17). One of the results of the increase in the number of outsourced formally privatized local and municipal companies is a "wide range of different company ownership structures in local government" (Trapp et al. 2002: 2) and the emergence of a kind of corporation or holding structure.(17) It is estimated that "the core administration now controls fewer than half of local government activities and financing (including the firms, such as Regiebetriebe, within the core area). This tendency will ... become stronger in the future" (Richter 2001: 405; cf. also von Kodolitsch 2002: 11 for a similar appraisal and further references).

Local councils and politicians encountered many difficulties already in the past in controlling the Eigenbetriebe and Eigengesellschaften when the latter were still much less numerous. The recent wave of organizational outsourcing and (formal) privatization has multiplied these problems. Municipalities have developed various kinds of holding control methods to counteract this loss of influence and control. This function may be handled internally by a staff unit or an auditing department, or externally by a consultant or management firm (cf. Richter 2001: 404). Partly due to pressure from Land legislation (cf. Held 2002: 19), a great number of cities and larger towns "have produced holding reports as an initial step towards creating more transparency - although such assessments are not particularly useful as a controlling tool in their current form" (Richter 2001: 403).

In the wake of recent developments, a chorus of alarmed voices has begun to make itself heard. They warn of "the danger of unchecked spin-offs" which could lead to "an atomization of the municipality" (Dieckmann 1996: 341) and suggest that the readiness of local councils to promote or at least to approve continuing outsourcing and privatization constitutes a "voluntary capitulation of the local politicians" and thus a "disenfranchisement for the local citizens" (Bogumil/Holtkamp 2002).

Some Länder (up to now Bavaria and Thuringia) have even felt compelled to counteract the "outsourcing folly" of local authorities by passing legal previsions which are expected to be enforced by the state agencies in charge of legally supervising the local authorities. One regulation is that "the tasks to be outsourced must be performable outside the general (public) administration".(18) 

 

2.3 The budgetary crisis as a "whip" of change

Throughout the 1990s, pressure for change was increasing (and continues to do so) due to worsening budget plight of local government (cf. Karrenberg/Münstermann 2002).

  • Many local authorities have faced a widening of the gulf between revenue and expenditure which means that in a growing number of municipalities the budget deficits are mounting. The rise in local expenditures has also been by the inclination of the federal and Land governments to shift ever more tasks and costs to the local authorities without offsetting finances. Such extra burdens significantly include the costs of the current high unemployment, since local authorities, as was already highlighted, are financially responsible for providing social assistance benefits (cf. Karrenberg/Münstermann 2002: 51).

At the moment, the financial plight of local authorities is aggravated by the tax reform, which gives them the responsibility for making up shortfalls, and by the severe loss in revenue (particularly from the local business tex, Gewerbesteuer) resulting from the recession (cf. Karrenberg/Münstermann 2002: 14 ff.).

The financial woes of local governments and their all but desperate attempts to consolidate the budget have profoundly impinged upon their activities.

  • They have drastically reduced personnel. From 1991 to 2001 the number of full-time employees of local authorities in the West German Länder (19) fell by 22 percent (20) (cf. Karrenberg/Münstermann 2002: 52).
  • The job cuts hit optional activities hardest, i.e. tasks which federal and Land laws do not oblige local authorities to fulfil.
  • This includes crucial components of the (above mentioned) "local welfare state". With the exception of administering and financing the social assistance scheme which is a mandatory local government task, a good deal of this local social policy sector falls within the "voluntary" (and traditionally highly cherished) commitments of the local authorities. Hence, the reduction of personnel has been particularly severe in such "voluntary" fields. An conspicuous exception is child day care. In fact, the number of employees in child day care has increased in order to "fulfil the commitments to provide kindergarten places imposed on local authorities by the federal and Land governments without financial compensation" (Karrenbery/Münstermann 2002: 52).
  • Cultural activities such as theatres, orchestras, museums, libraries and music centers are further traditional optional amenities and are thus "of peripheral importance and particularly vulnerable to the economy drive" (cf. Glaser 1999: 678).

In conclusion, it is clear that the discretionary items of the local government budget which were traditionally crucial for fulfilling and maintaining "optional" tasks in the fields of sport, culture, welfare and youth is shrinking rapidly. "It is not unreasonable to fear that these financial crises could usher inthe erosion and demise of of local self-government" (Dieckmann 1999: 300).

 

2.4 Assessment of the impacts on the traditional local government model

The above discussion has demonstrated that German local government has experienced a number of impulses and currents which are, in part, premised on conflicting principles and objectives.

  • Within the EU´s basic premises for action, the principles of an open market and free competition, based on the "one space without internal frontiers" philosophy (Article 2 of the Treaty on European Union), are bound to conflict with traditional principles of local government. While the former revolves around the principle of "economic rationality", that is, of profit-maximizing and cost-minimizing (which also entails the "externalization" of costs), the latter is concerned with the "common wealth" and "common good" of the local community and promotes the common good by introducing organizational forms and procedures meant to ensure the achievement of "common good", including quasi-monopolies and "protected markets" (within its jurisdiction) when necessary.
  • Market philosophy and traditional local government are diametrically opposed to one another also institutionally. The market system is usually based on single purpose organizations and globally operating "footloose" organizations and companies. The various sectors and actors are to be coordinated via the market. By contrast, traditional local government is characterized by territorially defined, multipurpose organizational principles. Sectors and actors are supposed to be coordinated through the comprehensive, unitary organization of a local political unit and, in the last resort, by collective decision-making (cf. Wollmann 2002a).
  • Moreover, the market model and the conventional local government model differ fundamentally. Market forces, competition and "customers"/"clients" are the crucial determinants of the former. By contrast, local self-government is primarily shaped by the political premises of local councils and civil servants, the democratic decision-making process and political accountability to the community.

On the one hand, the modernization impulses, coming from globalization, from the EU's open markets and competition policies as well as from the New Public Management/New Steering Model can be seen as a positive stimulus which has allowed maxims of economic rationality, business management and free trade to enter the sphere of local politics and administration. Traditionally, local government was very strongly marked by legal regulations and hierarchical control, and by local "zones of protection" in various local economic activities, including public services which falls in line with the political and administrative system in the Federal Republic at large. It has often hindered or even prevented innovative, economical action. In this respect, the factors and developments mentioned have set a much-needed dynamism in motion.

On the other hand, considerable disadvantages and problems need to be identified.

  • The EU's policy of competition, and the market forces of the "one space without internal frontiers" have put public services at risk of being ruled by the "social and ecological blindness" which is an inherent defect of profit-driven, cost-externalizing market principles. Local utilities might feel forced to adopt similar attitudes to keep up with the competition and the competitors in the area of efficient management. The liberalized public service market is already threatening to neglect social, environmental and other dimensions of "common good" oriented policy-making. It seems to be engaged in a "race to the bottom" (cf. Libbe et al. 2002; Bogumil 2002: 6). By contrast, normatively speaking, the local authorities should consider to put in place and to retain in place a corrective to the free market by creating local "special markets" with, for example, community-minded and politically motivated fees and prices for services and utilities. They should keep in mind that even a "reduction of competition" might result from abandoning such "sheltered local markets" (cf. Püttner 1999: 550). It seems unlikely that any form of local "enabling and guarantee management" in conjunction with contract and licence agreements would be able to promote community interests (as the EU Commission suggests in the above-mentioned bulletin of 7 September 2000).(21) 
  • Outsourcing local tasks to single-purpose organizations and companies jeopardizes the traditional territorial, multifunctional, unitary model of local (self-)government and its ability to coordinate and manage many different areas and actors of activity (cf. Bogumil/Holtkamp 2002). Of the three coordination and management options - hierarchy, interaction, market - the market does not seem to offer a particularly promising mode because of its strategies of individualistic and specific profit maximization, cost minimization, if not cost externalization (cf. Wollmann 2002a). It also seems doubtful whether holding management models (cf. Richter 2001: 401) constitute a viable measure to discipline and to contain the centrifugal tendencies commonly found in newly independent organizations (cf. Trapp et al. 2002: 247).
  • Finally, the peril this entails for local democracy needs to be addressed. Outsourcing many municipal government tasks to independent local Eigengesellschaften or private businesses is liable to deprive local elective bodies of all formal or practical means of political guidance and control. Local democracy, the decision-making and participatory rights of local councils and citizens are in danger of losing their political substance. Local (self-)government is under threat of becoming little more than an implementing agent of tasks prescribed and delegated by the federal and Land government levels and of, thus, degenerating into a "subordinate organizational and social agency" (Thallmair 2001: 4). The recent introduction of direct-democratic citizen rights participatory rights made this trend still more contradictory and fraught with tensions, because it has further accentuated the political profile of local self-government and strengthened citizens' institutional avenues to shape and control policies. The occasionally expressed hope that a kind of "client democracy" could compensate for this loss of political democracy seems somewhat vain. (Bogumil/Holtkamp 2001: 39 and Libbe et al. 2002: 22 also criticize this view).

The traditional model of local (self-)government can be seen as a socio-politico-administrative biotop, with its roots firmly planted in German political tradition and culture. Damaging it would have far-reaching consequences for the political and democratic system in the Federal Republic as a whole.

 

3. "Lines of defense" for the traditional model of municipal self-government

In conclusion, we offer some thoughts on which institutional, legal and political "lines of defense" exist to protect and secure the basic features of the traditional model of municipal self-government in Germany in the face of the challenges which we looked at in this paper. We shall deal, in sequence, with the pressures posed at European, national and local level.

 

3.1 EU level

The institutional position of the German local authorities to voice their interests at the EU level is very weak. In the EU Council of Regions - " Council consisting of representatives of regional and local bodies" (Article 198a, Paragraph 1 of the Treaty Establishing European Community) - the Länder have claimed and occupied the lion's share of the 24 seats allotted to Germany. The three local government associations obtained a total of three seats, and even this was not until after the Federal Parliament and the Chancellor had intervened (cf. Thränhardt 1999: 386 f.). The fact that the three local government associations have run a joint "Europabüro der deutschen kommunalen Selbstverwaltung" (European office of German local self-government) in Brussels since 1991, and that the German Association of Cities established its own office in the city in June 2002 (cf. Articus 2002: 1) does not really compensate for the weak formal institutionalization of the voice of local government in the advisory decision-making concert in Brussels.

German local government also has a tenuous legal and conceptual foothold in the political arena in Brussels. EU constitutional law has no equivalent of Article 28, Paragraph 2 of Germany's Basic Law to recognize municipal self-government. It certainly offers it no institutional guarantees. Although the European Charter of Local Self-Government, passed by the European Council in 1985, has been ratified by the EU Member States (by the Federal Republic in a law of 22 January 1998), no analogue has yet been adopted for the EU itself, either by the European Council or the European Parliament.

The German local self-government model's politically and functionally strong profile puts it in a difficult position among the other EU Member States, as the majority of them have politically and/or functionally weaker local government types and often have a unitary and/or more centralized state. Austria, Finland and Sweden's accession to the EU has swelled the ranks of "North and Middle European" local government models, but the continuing dominance of the EU Commission's, as it were, "Latin" approach to state organization and administration still obstructs understanding of and sympathy for a distinctly more decentralized and multifunctional local government model (cf. Dieckmann 2001: 22). Nevertheless, the principle of subsidiarity, adopted from the German constitutional tradition and embodied in Article 5 of the Treaty Establishing the European Community,(22) has prepared some ground for the idea of intergovernmentally devolving responsibilities and thus granting more political and functional clout to local government.

 

3.2 Intra-German intergovernmental level

The institutionalized right of local government to exert influence is also quite limited within the Federal Republic's own intergovernmental decision-making process. The Federal Republic is constitutionally set up as a two tier state cosisting of the Federation and the Länder while the local government level is seen as part of the Länder. Reflecting (and jealously guarding) their constitutional status, the Länder claim to represent "their" municipalities and counties in the country´s intergovernmental decision-making processes. The local authorities have largely to rely on the lobbying and representative function and skills of their local government associations. The only formal intergovernmental bodies of which the local government associations are members are the Financial Planning and Economic Councils formed in the 1960s (which has little influence). For the rest, mention should be made of of the procedural rights which were introduced in the mid-1970s and which give the local government associations the "right to be heard" in an advisory function in legislative procedures of the federal parliament and the Länder parliaments (cf. Jaedicke/Wollmann 1999: 315 ff.).

The federal and Land governments have their own vested interests in maintaining the traditional local government model, defending its specific features in the European Council and protecting it from being impaired by European legal provisions. First of all, municipalities have a crucial functional role in the entire political and administrative process of the Federal Republic's constitutional system. Secondly, local democracy is an institutional, cultural and normative component of Germany's democratic constitutional system. If either one or both of these aspects of local government were damaged, it may deal a severe blow to the democratic and administrative system of the Federal Republic as a whole.

Advocating the interests of German local government in EU decision-making processParticularly the federal government (as a member of the European Council, the EU's supreme decision-making body) is called upon to give the interests of the German local authorities the attention they deserve in treading the line between the EU's Community interests and Germany's own "best interests". It is imperative to broadly interpret the principle of subsidiarity as a viable basis for preserving and guaranteeing the special features of the "national" local government model (cf. Thallmair 2001: 4).

Implementation, specification and "flanking" of EU legislation in federal legislationThe national legislative process which adopts EU directives in Germany should sound out and make full use of its interpretative and discretionary powers when implementing EU regulations, to maintain national and, not least, local peculiarities. One particularly useful method could be to appeal to the principle of subsidiarity.

Land legislationSimilar demands are to be placed on Land legislation, particularly with regard to local government charters and related legislation. Recent Land legislation, which seeks to dampen local authorities' enthusiasm for outsourcing, represents a remarkable example of how the Länder can protect local authorities from themselves, by hindering the "sellout" process.

Reform of municipal financesThe federal government and the Länder should work together to introduce far-reaching local financial reform to help municipalities out of their deep financial crises, which are threatening to choke the traditional local government task model. The expert commission appointed in spring 2002 seems to be making progress in this direction.

 

3.3 Local level

Although the legal and financial framework within which local government is bound to operate is quite tight, the local authorities still have some noteworthy scope to manoeuvre when deciding whether and to what extent the traditional range of local tasks should be maintained and how it can be developed.

  • For example, it is up to local councils whether to use the "cushioning" federal legislation, for instance, to continue their environmentally sensitive energy policies in the wake of the liberalization of the electricity market, or whether to wield their power to pass local by-laws for locally accentuate and target their waste disposal policy (cf. Deutscher Städtetag 2001: 101).
  • They are also free to decide whether to yield to budget pressures and sell local assets and utilities for drawing a one-time cash revenue or or whether to think in the long term and remain operative in the respective service or utility.
  • It is particularly the local councils that can also draw their own conclusions on whether they should maintain their current range of tasks and organizational profile despite financial adversity, or abandon them and thus willingly "capitulate" and give themselves up politically (cf. Bogumil and Holtkamp 2002).
  • The introduction of the direct democratic citizen rights in the early 1990s have given the citizens a handle on determining the future structure of local government in their own community. Initial examples demonstrate that local referenda have mainly tended to retain the existing range of local government tasks.(23) 
 

Notes

(1) The various terminology and concepts behind the "shifted" tasks will not be covered here. Cf. Schmidt-Eichstaedt (1985) for example. (back)

(2) Cf. Wagener (1981: 76 f.). According to the "horizontal territoriality-based organizational principle ... all public duties within a certain territory are to be performed by a single administrative unit ... The territorial organizational formula includes key principles such as 'universality of local government responsibilities' and 'administrative unity'" (Wagener 1981: 76 f.) (back)

(3) In this context, mention should be made of a legislative formulation in the Federal Stability Act of 1967 which has "entirely fallen into oblivion" (Dieckmann 2001:18) . It refers to the "equality of federal, Länder and municipal tasks". (back)

(4) This term was cointed by Ernst Forsthoff in the 1930s. It has been used in the legal languagein the legislation of several Länder (cf. Held 2002: 12). (back)

(5) Sparkassen pay no or limited dividends. (back)

(6) Cf. the resolution adopted, on September 19 2001, by the board of the German Association of Cities: "The local savings banks... provide complete and adequate banking service primarily to small and middle-sized business and economically weaker segments of the population." (back)

(7) At the end of the 1990s, 150 German towns and cities were subsidizing municipal or public theatres with varying levels of assistance from the respective Länder. 25 of these theatres were in towns with fewer than 50,000 inhabitants (!) (cf. Statistisches Jahrbuch Deutscher Gemeinden 1999: 292 ff.). (back)

(8) Voter turnout for Swedish local elections is over 80 percent (cf. Back et al. 1995: 273), in France it is also around 60 percent (cf. Hoffmann-Martinot 1995: 115) and in Britain often 40 percent or less (cf. Scarborough 1995: 136). (back)

(9) Further categories are the "Franco Group" (the main member being France which is seen as havingpolitically strong but functionally weak local government) and the "Anglo Group" with local authorities that are both politically and functionally weak, with post-Thatcherist Great Britain being the main example). (back)

(10) See statement of 3 May 2000 of directors of the German Association of Cities and of the German Association of Cities and Towns (back)

(11) Cf. ibid. (back)

(12) The German Association of Cities (DST) sharply rejected this EU commission statement and issued the following comment: "This restricted interpretation of non-market activities and the subordination of most local services to European competition policy -...(are)not acceptable to municipalities" (DST Presidium resolution of 7 November 2000). (back)

(13) Cf. German Association of Cities, resolution by the directing board of 19 September 2001, www.städtetag.de. (back)

(14) Cf. ibid. (back)

(15) A discussion of this development and its causes is beyond the scope of this article, cf., for example, Wollmann (1996). (back)

(16) There is a mountain of literature on the subject. Good references include Banner (1991; the "pioneering" programme of the NSM) and Reichard (1994; the multi-edition standard work). Cf. also Bogumil (2001: 108 ff.). Cf. Banner (2001) for a remarkably (self-)critical evaluation of NSM-inspired local government modernization. (back)

(17) Cf. Wohlfahrt/Zühlke (1999) for examples of such "corporate structure". (back)

(18) Article 87, Paragraph 1, Clause 4 GO-Bayern, Cf. Held (2002: 18). This legislation is intended to ensure that "excessive outsourcing and spinning-off" does not lead local authorities to "adopt the mere role of a holding company". Held (2002: 19) cites the official declaration on the introduction of this regulation to the Bavarian Municipal Charter. (back)

(19) Local authorities in the former East Germany have reduced their personnel by 66 percent in the last ten years. For the interpretation of this (startling) figure one has to bear in mind, however, that, in the wake of German Unification, the number of local government employees temporarily skyrocketed. So the (at first sight outrageously) high reduction rate is a reaction to the "personnel explosion" in the immediate aftermath of Unification and as attempt to bring the "personnel density" in East German local government to the "normalcy" in West German local governments (cf. Wollmann 2002d). (back)

(20) When interpreting these statistics, it is important to remember that a large part of the reductions can be explained, in the narrow sense, by the outsourcing of some administrative departments (and outplacing personnel) to legally independent Eigengesellschaften. (back)

(21) Cf. Schuppert (2001: 412). He considers this a crucial issue and the litmus test and the "to be or not to be" of the "guarantor state". (back)

(22) Cf. the 1997 report on the application of the principle of subsidiarity and the principle of reasonability. (back)

(23) Some local referenda have asked the people whether local public service institutions (such as municipal utilities) should be liquidated or sold. The public electorate said no (cf. Stuhlmann 2001: 20; Bogumil/Holtkamp 2002: 16 for further examples). (back)

 

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 Wollmann, Hellmut (1998), "Modernisierung der kommunalen Politik- und Verwaltungswelt - zwischen Demokratie und Managementschub", Grunow, Dieter/Wollmann, Hellmut (eds.), Lokale Verwaltungsreform in Aktion, Basel inter alia, p. 400 ff. (back)

 Wollmann, Hellmut (1997), "Transformation der Kommunalstrukturen", Wollmann, Hellmut et al. (eds.), Transformation der politisch-administrativen Strukturen in Ostdeutschland, Opladen, pp. 259-327. (back)

 Wollmann, Hellmut (1996), "Ausgangsbedingungen und Diskurse der kommunalen Verwaltungsmodernisierung", Reichard, Christoph/Wollmann, Hellmut (eds.), Kommunalverwaltung im Modernisierungsschub?, Opladen, pp. 1-50. (back)

 Wollmann, Hellmut (1995), "Variationen institutionaler Transformation in sozialistischen Ländern: Die (Wieder-)Einführung der kommunalen Selbstverwaltung in Ostdeutschland, Ungarn, Polen und Rußland", Wollmann, Hellmut/Wiesenthal, Helmut/Bönker, Frank (eds.), Transformation sozialistischer Gesellschaften: Am Ende des Anfangs, Opladen, pp. 554-596. (back)

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