Special-purpose agreement; notification and application for approval

The special-purpose agreement is the instrument by which participating local authorities can transfer individual or all tasks associated with a specific purpose to one of them or carry them out jointly. It can also be agreed that the employees of one local authority can also work on a pro rata basis to fulfill the tasks of other participating local authorities. A special-purpose agreement requires a written contract under public law between the parties involved.

Only municipalities, counties and districts and their equals (administrative communities, owners of land not belonging to municipalities, special-purpose associations and municipal companies) can be parties to a special-purpose agreement. In particular, the tasks that are to be transferred to one of the participating local authorities or that are to be carried out jointly must be specified in the agreement.

If tasks are transferred, the transferring local authority loses responsibility for their fulfillment. In relation to the citizen, only the local authority to which the task was transferred is then responsible and accountable. The special-purpose agreement may provide for an appropriate reimbursement of costs for the performance of the transferred tasks. In the case of joint performance of a task, the special-purpose agreement must determine the scale according to which the costs are distributed among the parties involved. The special-purpose agreement may also stipulate that the local authority to which tasks are transferred also has the right to issue bylaws and ordinances for the area of the other parties involved in order to fulfill these tasks.

If a special-purpose agreement is not limited in time or concluded for more than twenty years, the special-purpose agreement must stipulate under which conditions, within which period and in which form ordinary termination by a party is possible. Irrespective of this, any special-purpose agreement can also be terminated without notice for good cause.

A special-purpose agreement under which only tasks are transferred or jointly performed must be notified to the supervisory authority. The supervisory authority must also be notified of the amendment or termination of such a special-purpose agreement.

If a participating local authority also obtains powers through a special-purpose agreement - e.g. the right to issue notices to citizens - the special-purpose agreement requires the approval of the supervisory authority. If a special-purpose agreement requiring approval is amended or terminated, this also requires the approval of the supervisory authority.

The supervisory authority must officially publish in its official gazette any special-purpose agreement requiring approval, its amendment and termination as well as the approval granted in each case. The special-purpose agreement becomes effective on the day after the official announcement. A special-purpose agreement requiring notification becomes effective without official publication as soon as it has been adopted and signed by all parties involved. Parts of a special-purpose agreement requiring approval that only affect the relationship between the parties involved without affecting the rights or obligations of third parties do not need to be officially published.

Competent authority

The supervisory authority is

• the State Ministry of the Interior, Sport and Integration,
  • if a district or the Free State of Bavaria is involved,
  • if another state, a municipality or an association of municipalities of another state or the federal government is involved;
• the government, if a district or an independent municipality is involved;
• otherwise the district administrative authority.

Municipalities, administrative districts and boroughs may cooperate in order to jointly perform tasks which they are entitled or obliged to perform. This does not apply to municipalities that belong to the same administrative community if the administrative community can perform the task just as effectively and economically.

Approval can only be refused if the conclusion of the special-purpose agreement is contrary to the public interest, the conclusion of the special-purpose agreement is not permitted or the agreement does not comply with the statutory provisions.

If special approval is required for the implementation of a matter for the fulfillment of which a special purpose agreement is to be concluded, the agreement cannot be approved if it is to be expected that the special approval will be refused.

The approval of a termination or amendment due to a termination can only be opposed by reasons of public interest if the requirements for a mandatory agreement are met.

• Art. 12 Law on Municipal Cooperation (KommZG)
• Art. 14 Law on Municipal Cooperation (KommZG)

Notifications must be submitted to the competent supervisory authority. This authority is also responsible for approving special-purpose agreements that require approval. If the special-purpose agreement is to cover matters within the delegated sphere of activity, the supervisory authority shall decide on the approval at its own discretion after consulting the specialist supervisory authority. The supervisory authority shall officially publish the special-purpose agreements requiring approval, including the necessary approvals, in its official gazette.

If the conclusion of a special-purpose agreement for the fulfillment of mandatory tasks of a local authority is required for compelling reasons of public interest, the supervisory authority may set a reasonable deadline for the participating local authorities to conclude the special-purpose agreement. If the special-purpose agreement is not concluded within the deadline, the supervisory authority shall issue a regulation that shall apply as an agreement between the parties involved (mandatory agreement).

• Special-purpose association; notification and application for approval of changes