Counties and Municipalities in Germany's Legal State StructureStructure

The local government has decision-making responsibility for development plans and budgets. It sets out emission reduction and renewable energy targets, amends the legal framework for renewables expansion, provides institutional and nancial support and monitors achievements.

(Feldho, 2016, 273) When wanting to study processes at the local level, the communal level is the level of choice. The term `commune' encompasses hereby municipalities, free cities, county-aliated cities, and counties (Bogumil and Holtkamp, 2013, 9). The municipalities must have the guaranteed right to deal with all issues regarding their local community in their own responsibility, within the legislative scope. (GG, 1949, Art.28 II). This sentence in the German constitution [Grundgesetz] is the constitutional guarantee of German mu-nicipalities as self-governing bodies (Naÿmacher and Naÿmacher, 2007, 19; Bogumil and Ruddat, 2013, 120). The level of the communes, which consists of counties and munici-palities, is the third administrative layer in Germany, below the states [Länder] and the

8Results from the US show, that while large cities have per capita emissions between 1.8 and 2.3 tons e.g. New York: 2.3 tons; Los Angeles: 1.8 tonsrural areas have much higher emissions. The highest emissions are found in rural northern New Mexico (Farmington) with 69 tons per person (Florida, 2012). Negative relations between population density and per capitaGHGemissionthe more people within a specic area, the smaller their per capita emissionsare widely observed and explained by eects like a better provision of public transport, smaller homes and shorter commutes.

federal level (Voigt,1976, 48;BT- Drs.,1976). AsBogumil and Ruddat(2013, 120) clarify, Judicially [. . . ] they are part of the Länder and therefore subject to their regulatory law and decisional authority. The specic conguration of municipal functions, powers and structures is dened by the respective state constitution (Landesverfassung) and by the state-authored municipal constitutions (Gemeindeordnung). However, local representa-tions like the city council [Gemeinderat] and the county council [Kreistag] are seen as parliament-like bodies, due to their possibility to perform political decisions, their bud-getary rights, their authority for norm setting, their control function, and not least their direct election from the citizens (see for example Schmidt-Eichstaedt, 1985; Ott, 1994).

Thus, the construct of a county and municipality performing exclusively administrative tasks exists neither in political science (Wollmann, 1999) nor in jurisprudence (Bogumil and Holtkamp, 2013, 67f.).

Counties vary considerably in terms of sizebetween 100 km² and 3.000 km²as well as in terms of number of inhabitantsbetween 50.000 and 600.000. Yet, they can be considered as the most homogenous administrative level and are much more homogenous than the municipalities, where inhabitant numbers vary between a few hundred and three million (von der Heide, 1999, 123). Counties are thus a good comparable level to study local policy processes.

Due to the layered administrative structure communal tasks are regulated within the re-spective state constitution and their communal constitutions (Bogumil and Holtkamp, 2013, 50). Thus, communal tasks can vary from one state to another. Generally, com-munes (municipalities and counties) are responsible for tasks that need the direct contact to citizens, and for providing necessities to the citizens. But it has to be dierentiated between delegated and self-administered communal tasks (Bogumil and Ruddat, 2013, 120; Naÿmacher and Naÿmacher, 2007, 111; von der Heide, 1999, 129). Delegated tasks are mandated by and performed for the national state and the federal states (GG, 1949, Art.83 ). By fullling those delegated tasks, the communes have no room for maneuver, e.g. vehicle registration, passport, and registration aairs. The self-administered tasks guaranteed in the GG (1949, Art.28 II)include obligatory as well as voluntary tasks of a commune. Regarding the self-administrative functions the municipal council is the responsible omnicompetent authority. The state level only exercises legal supervision, su-pervising if the municipalities are not violating the law in fullling their tasks. However, the voluntary part of municipal functions has been constantly diminishing due to the further contraction of already tight municipal budgets and the legal requirements of the European Union (EU), the national state, and the federal states regarding the establish-ment of equal living conditions (Bogumil, 2005). (Bogumil and Ruddat, 2013, 120f.).

While municipalities are responsible for tasks that are directly related to the municipal community, the tasks of a county are intercommunal, complementary or compensatory in

nature (Janning,1999, 79;von der Heide,1999, 127). The relation between the county and its municipalities is therefor not hierarchical but rather a functional collaboration (von der Heide, 1999, 127). A county takes on the tasks that the municipalities are not able to perform in an ecient manner or for which they do not have the economical strength (Naÿmacher and Naÿmacher, 2007, 78f.). Therefor the tasks of counties can vary signif-icantly, depending on the size and structure of their municipalities, and are individually regulated in a county's constitution [Kreisordnung] (Janning, 1999, 79). The municipali-ties and counmunicipali-ties perform numerous tasks and have decisive responsibilimunicipali-ties in areas that are directly related to the energy transition (Berry,2013;Denis and Parker,2009). Those tasks include land planning, constructional planning, and land development, local public transport, provision of public goodssuch as electricity, gas, water, heating, and street lightingand waste managemente.g. disposal of waste and waste water (Naÿmacher and Naÿmacher, 2007, 89/111; Bogumil and Holtkamp, 2013, 18). A trend to remunicipalize tasks like electricity provision through deprivatizing public service providers [Stadtwerke]

can be observed in the recent years (Ohlhorst et al., 2014, 97; Müschen, 1999, 668.).

This trend is based on the assumption that only if the communes are at charge over their electricity provision a social and ecological energy provision is possible. The remunicipal-ization thus aims at a democratic reappropriation of a policy sector which is crucial for and close to the living situation of the citizens (Müschen, 1999, 665). This assumption is challenged by the belief that an ecient provision of RE is only feasible in a coher-ent and smart grid Ohlhorst et al. (see below 2014, 103). This reects the claim of the citizens to participate in policy-making concerning their local provision structures. With two thirds of all state investments made at the communal level (e.g. through building activities), and more than three-quarter of federal law implemented here (Naÿmacher and Naÿmacher,2007, 90;Bogumil and Holtkamp,2013, 9), the local level plays a crucial role within the transition process towards a renewable energy supply.

The important role of cities and counties for the transition process is also understood by policy-makers who try to support them by choosing more sustainable pathways, for example the act to support the climate conscious development of cities and municipalities [Kommunalrichtlinie] (BT- Drs.,2011;BMUB,2016a). This act, which was rst enacted in 2008 and last updated in 2016, aims to support counties and municipalities by consulting and nancing actions that will drastically decrease the cities energy consumption, increase energy eciency and/or decrease GHG emissions, such as funding a position for climate protection management or supporting concrete projects, e.g. in the area of sustainable mobility or energy ecient lighting of public buildings and in the street (BMUB,2016a).

However, this support can only be seen as priming, because the funding depends on calls for proposals and is generally not available to all communes.

This subsection described how communes (municipalities and counties) are embedded in

Regional interests

Inhabitants Citizens Local public Public agency Public interests

Public administration Council Divisions/

Departments

Technical committees

Parties

Initiatives, Clubs, Associations Press

Commercial enterprises Regional

administrations (Federal state/

State/ District)

Figure 2.4: System of Local Decision-Making (translated from Naÿmacher and Naÿ-macher, 2007, 229)

the German administrative and political structure. It emphasizes the responsibilities and competences that the local level has in areas that directly aect the energy transition.

The next subsection will have a closer look at the role of the citizens at this local level.