Order of 5 December 2002

R e a s o n s:

A.

1

The proceedings concern the question of whether individual provisions of the Lippe Water Authority Act (Lippeverbandsgesetz) of 7 February 1990 (North Rhine-Westphalia Law and Ordinance Gazette, Gesetz- und Verordnungsblatt Nordrhein-Westfalen – GV.NW p. 162) and of the Emscher Water Authority Act (Emschergenossenschaftsgesetz) of 7 February 1990 (GV.NW p. 144) are incompatible with the principle of democracy enshrined in Art. 20(2) and Art. 28(1) first sentence of the Basic Law (Grundgesetz – GG) insofar as certain organs of the Water Authorities lack, either entirely or in part, an uninterrupted chain of organisational and personal democratic legitimation that can be traced back to the people.

I.

2

1. Water authorities were created in the area that is today known as North-Rhine-Westphalia through special laws starting as early as the start of the 20th century, when the region was part of Prussia ([…]). They were established due to the water management situation in the Rhenish-Westphalian industrial area; groundwater levels had risen due to mining and a high concentration of pollutants was found in the rivers as a result of strong population growth and rapidly advancing industrialisation. Since the legal options of tackling the various tasks arising from this situation were deemed insufficient, the establishment of a central water authority, initially for the entire valley of the river Emscher, was considered ([…]).

3

With the Emscher Act of 14 July 1904 ([…]), the Prussian legislator assigned the tasks of wastewater treatment and regulation of the receiving water in the Emscher region to a compulsory water authority. Its members included all districts and municipalities that drained in whole or in part to the Emscher and its tributaries.

4

The Emscher Act became a template for a number of other Prussian laws on the creation of water authorities through special laws, such as the Act on the Seseke Water Authority of 5 June 1913 ([…]). This Water Authority, which, among other things, was to regulate the receiving water of the Seseke, a tributary of the river Lippe, and its tributaries as well as assume the wastewater treatment of these rivers, was later incorporated into the Lippe Water Authority (Lippe Act, […]) created by the Prussian special law of 19 January 1926.

5

The two major water authorities for the rivers Lippe and Emscher remained unaffected by subsequent reforms of water legislation. […] This was the case even after 1945, when the Water Authority Ordinance was stripped of rules characterised by Nazi rule and the Führerprinzip; the ordinance continued to apply without these rules as the law of the Federal Republic of Germany until it was replaced in 1991 by the Water Authority Act (Wasserverbandsgesetz – WVG, Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 405). Pursuant to § 80 of the Water Authority Act, the provisions of this Act only apply to the water authorities created under special laws if such application is expressly provided for in the law.

6

2. By Act of 7 February 1990, the Lippe Act of 19 January 1926 was amended and renamed ‘Act on the Lippe Water Authority’ (Lippeverbandsgesetz – LippeVG). Among other things, a council was created, the composition of the executive board was changed and employee co-determination was introduced.

7

The Lippe Water Authority – which is not a regional or local authority – manages the upstream catchment area of the River Lippe as a body governed by public law; its purpose is to serve the public interest and its members (cf. § 1 of the Lippe Water Authority Act). The Water Authority performs all essential water management tasks for the Lippe catchment area. […]

8-11

[…]

12

The provisions of the Lippe Water Authority Act referred to the Federal Constitutional Court for review read as follows:

13

§ 6

14

Members of the Water Authority

15

(1) The following are members of the Water Authority:

16

1. the Land North Rhine-Westphalia;

17

2. the companies and other providers of public water supply as well as other commercial enterprises and the respective owners of properties or facilities that pump water as groundwater or withdraw it from surface waters in the Water Authority’s area in order to use it (with the exception of water withdrawals on the basis of the agreement between the Federal Republic of Germany and the Land North Rhine-Westphalia of 8 August 1968 – GV.NW. p. 343 –, amended on 22 December 1972 – GV.NW. 1973 p. 63 –);

18

and, furthermore

19

3. independent cities, cities belonging to districts, municipalities and

20

4. districts,

21

insofar as they are situated wholly or in part in the Water Authority’s area;

22

5. the respective owners of the mines situated wholly or in part in the Water Authority’s area;

23

6. commercial enterprises and the respective owners of properties, transport facilities or other facilities that cause, impede, are expected to cause or impede, or are expected to benefit from the undertakings of the Water Authority; insofar as a leasehold has been granted, the holder of the leasehold replaces the owner; insofar as public encumbrances exist, the obligor replaces the owner or the leaseholder.

24

Members of the Water Authority also include regional or local authorities, companies or owners within the meaning of the first sentence nos. 2 to 6 outside the Water Authority’s area that draw water directly from the Water Authority’s area or will do so on the basis of initiated procedures or whose tasks and obligations the Water Authority has assumed in accordance with § 2(2). Mines pursuant to the first sentence no. 5 also include mine property and licences within the meaning of the Federal Mining Act, as well as mines and mine property and licences that are cancelled or revoked or expire.

25

(2) Membership in the cases of section (1) first sentence nos. 2 and 6 and second sentence requires that minimum membership fees, to be determined in the by-laws, be paid and that the fee notice be sent to the assessed body (§ 27(1) and (2)). If a member falls short of the minimum membership fee in its fee group, its membership expires at the time the decision by the executive board to this effect is delivered to it. In the period between the decision and its delivery, no new rights or obligations arise for the member.

26

(3) The members are to be listed in a register. Further details are set out in the by-laws.

27

§ 12

28

Assembly of the Water Authority

29

(1) The assembly of the Water Authority consists of the delegates from the members pursuant to sections (2) and (3) and one delegate pursuant to section (4). The overall number of delegates is determined in the by-laws.

30

(2) Each unit of annual membership fees (fee unit), the amount of which is to be set out in the by-laws, entitles the member to send one delegate. The number of delegates a member sends to the assembly is determined by the number of full fee units of the member based on its annual membership fees; each delegate shall have one vote. No member may represent more than two-fifths of all delegates. In accordance with the preceding sentence, any membership fees that exceed two-fifths of all fee units do not entitle the member to send delegates or to form and join voting groups (section (3)). The determination of the fee units of a member is to be based on average fees paid over the last three years prior to the formation of the new assembly; in the case of membership of less than three years, the last annual membership fee determined by the executive board prior to the formation of the new assembly shall apply. As long as the annual membership fees of individual members have not yet been determined, the fee determined by the executive board shall apply. The wastewater levy pursuant to § 65(2) of the Land Water Act is not taken into account when determining the fee units.

31

(3) Members may form voting groups with annual membership fees that do not reach, or exceed, a full fee unit (partial fee units). The number of delegates of a voting group is determined by the full fee units resulting from the combined fees or fee parts, with each delegate having one vote. Each member may only participate in one voting group. Each voting group elects its delegates and sends them to the assembly. Further details on the formation of voting groups and the election of their delegates are set out in the by-laws.

32

(4) The assembly shall also include an elected member of the Westphalia-Lippe Chamber of Agriculture who is delegated by the latter. The delegate has one vote in the assembly.

33

§ 14

34

Tasks of the assembly

35

(1) (...) It elects the members of the council of the Water Authority.

36

(...)

37

§ 15

38

Meetings of the assembly,
decision making

39

(...)

40

(6) The assembly makes decisions by a majority of valid votes cast. For decisions and elections, abstentions and invalid votes count towards the quorum, but not towards the calculation of the majority. In the event of a tied vote, the resolution is rejected.

41

(...)

42

§ 16

43

Composition, election and term of office
of the council

44

(1) The council of the Water Authority consists of fifteen members. For the Land North Rhine-Westphalia, the competent minister delegates one member to the council. A further fourteen members of the council are elected by the assembly. Initially, the respective groups have the following number of members:

45

1. Members pursuant to § 6(1) first sentence no. 2 (companies and other providers of public water management and other water withdrawers): 1 member,

46

2. Members pursuant to § 6(1) first sentence no. 3 (independent cities, cities belonging to districts and municipalities): 2 members,

47

3. Members pursuant to § 6(1) first sentence no. 4 (districts): 1 member,

48

4. Members pursuant to § 6(1) first sentence no. 5 (mines): 1 member,

49

5. Members pursuant to § 6(1) first sentence no. 6 (commercial enterprises, properties, transport facilities and other facilities): 1 member,

50

6. Representatives of the employees of the Water Authority: 5 members.

51

The remaining three seats on the council are distributed among the member groups pursuant to the fourth sentence nos. 1 to 5 according to the D’Hondt method (greatest divisor method). § 13(5) second sentence applies accordingly to the representatives of the districts, cities and municipalities. The basis is the fee ratio resulting for these member groups from the average fees paid over the last three years prior to the formation of the council; § 12(2) third, fourth and seventh sentence applies accordingly.

52

(2) The members of the council pursuant to section (1) fourth sentence no. 6 are elected by the assembly on the basis of a proposal by the staff committee of the Water Authority pursuant to the second sentence nos. 1 and 2. The proposals must contain at least twice the number of members of the council to be elected, namely for:

53

1. three employee representatives who are employed by the Water Authority;

54

2. two further employee representatives who are not employed by the Water Authority. The proposals by the staff committee are based on proposals from the trade unions represented in the Water Authority.

55

The election is a vote for individuals. Further details are set out in the by-laws.

56

(...)

57

(4) […]

58

(...)

59

§ 17

60

Tasks of the council

61

(...)

62

(2) The council elects the executive board and appoints one of its members as the chair of the executive board. The member of the executive board responsible for personnel and social affairs of the Water Authority may not be elected against the votes of the majority of the employee representatives. If the Lippe Water Authority and the Emscher Water Authority have joint management, the council of the Lippe Water Authority and the council of the Emscher Water Authority shall together elect at least two members of the executive board.

63

(...)

64

§ 18

65

Meetings of the council,
decision-making

66

(...)

67

(5) The council makes decisions by a majority of valid votes cast; each member of the council has one vote. For decisions and elections, abstentions and invalid votes count towards the quorum, but not towards the calculation of the majority. In the event of a tied vote, the resolution is rejected.

68

(...)

69

3. By Act of 7 February 1990, the Emscher Act of 14 January 1904 was amended and renamed ‘Act on the Emscher Water Authority’ (Emschergenossenschaftsgesetz – EmscherGG); the amendments correspond to the amendments to the Lippe Water Authority Act.

70

The Emscher Water Authority is a body governed by public law for the upstream catchment area of the River Emscher that performs the majority of essential water management tasks for the catchment area of the Emscher. […]

71

[…]

72

The provisions of the Emscher Water Authority Act referred to the Federal Constitutional Court for review read as follows:

73

§ 5

74

Members of the Water Authority

75

(1) The following are members of the Water Authority:

76

1. independent cities, cities belonging to districts, municipalities and

77

2. districts,

78

insofar as they are situated wholly or in part in the Water Authority’s area;

79

3. the respective owners of the mines situated wholly or in part in the Water Authority’s area;

80

4. commercial enterprises and the respective owners of properties, transport facilities or other facilities that cause, impede, are expected to cause or impede, or are expected to benefit from the undertakings of the Water Authority; insofar as a leasehold has been granted, the holder of the leasehold replaces the owner; insofar as public encumbrances exist, the obligor replaces the owner or the leaseholder.

81

Members of the Water Authority also include regional or local authorities, companies or owners within the meaning of the first sentence nos. 1 to 4 outside the Water Authority’s area whose tasks and obligations the Water Authority has assumed in accordance with § 2(2). Mines pursuant to the first sentence no. 3 also include mine property and licences within the meaning of the Federal Mining Act, as well as mines and mine property and licences that are cancelled or revoked or expire.

82

(2) Membership in the cases of section (1) first sentence no. 4 and second sentence requires that minimum membership fees, to be determined in the by-laws, be paid and that the fee notice be sent to the assessed body (§ 26(1) and (2)). If a member falls short of the minimum fee in its fee group, its membership expires at the time the decision by the executive board to this effect has been delivered to it. In the period between the decision and its delivery, no new rights or obligations arise for the member.

83

(3) The members are to be listed in a register. Further details are set out in the by-laws.

84

§ 11

85

Assembly of the Water Authority

86

(1) The assembly of the Water Authority consists of the delegates from the members pursuant to sections (2) and (3). The overall number of delegates is determined in the by-laws.

87

(2) Each unit of annual membership fees (fee unit), the amount of which is to be set out in the by-laws, entitles the member to send one delegate. The number of delegates a member sends to the assembly is determined by the number of full fee units of the member based on its annual membership fees; each delegate shall have one vote. No member may represent more than two-fifths of all delegates. In accordance with the preceding sentence, any membership fees exceeding two-fifths of all fee units do not entitle the member to send delegates or to form and join voting groups (section (3)). The determination of the fee units of a member is to be based on average fees paid over the last three years prior to the formation of the new assembly; in the case of membership of less than three years, the last annual fee determined by the Executive Board prior to the formation of the new assembly shall apply. As long as the annual membership fees of individual members have not yet been determined, the fee determined by the executive board shall apply. The wastewater levy pursuant to § 65(2) of the Land Water Act is not taken into account when determining the fee units.

88

(3) Members may form voting groups with the annual membership fees that do not reach, or exceed, a full fee unit (partial fee units). The number of delegates of a voting group is determined by the full fee units resulting from the combined fees or fee parts, with each delegate having one vote. Each member may only participate in one voting group. Each voting group elects its delegates and sends them to the assembly. Further details on the formation of voting groups and the election of their delegates are set out in the by-laws.

89

§ 13

90

Tasks of the assembly

91

(1) (...) It elects the members of the council of the Water Authority.

92

(...)

93

§ 14

94

Meetings of the assembly,
decision making

95

(...)

96

(6) The assembly makes decisions by a majority of valid votes cast. For decisions and elections, abstentions and invalid votes count towards the quorum, but not towards the calculation of the majority. In the event of a tied vote, the resolution is rejected.

97

(...)

98

§ 15

99

Composition, election and term of office
of the council

100

(1) The council of the Water Authority consists of fifteen members, which are elected by the assembly. Initially, the respective groups have the following number of members:

101

1. Members pursuant to § 5(1) first sentence no. 1 (independent cities, cities belonging to districts and municipalities): 2 members,

102

2. Members pursuant to § 5(1) first sentence no. 2 (districts): 1 member,

103

3. Members pursuant to § 5(1) first sentence no. 3 (mines): 1 member,

104

4. Members pursuant to § 5(1) first sentence no. 4 (commercial enterprises, properties, transport facilities and other facilities): 1 member,

105

5. Representatives of the employees of the Water Authority: 5 members.

106

The remaining three seats on the council are distributed among the member groups pursuant to the second sentence nos. 1 to 4 according to the D’Hondt method (greatest divisor method). § 12(4) second sentence applies accordingly to the representatives of the districts, cities and municipalities. The basis is the fee ratio resulting for these member groups from the average fees paid over the last three years prior to the formation of the council; § 11(2) third, fourth and seventh sentence applies accordingly.

107

(2) The members of the council pursuant to section (1) second sentence no. 5 are elected by the assembly on the basis of a proposal by the staff committee of the Water Authority pursuant to the second sentence nos. 1 and 2.  The proposals must contain at least twice the number of members of the council to be elected, namely for:

108

1. three employee representatives who are employed by the Water Authority;

109

2. two further employee representatives who are not employed by the Water Authority. The proposals by the staff committee are based on proposals from the trade unions represented in the Water Authority.

110

The election is a vote for individuals. Further details are set out in the by-laws.

111

(...)

112

(4) […]

113

§ 16

114

Tasks of the council

115

(...)

116

(2) The council elects the executive board and appoints one of its members as the chair of the executive board. The member of the executive board responsible for personnel and social affairs of the Water Authority may not be elected against the votes of the majority of the employee representatives. If the Emscher Water Authority and the Lippe Water Authority have joint management, the council of the Emscher Water Authority and the council of the Lippe Water Authority shall together elect at least two members of the executive board.

117

(...)

118

§ 17

119

Meetings of the council,
decision making

120

(...)

121

(5) The council makes decisions by a majority of valid votes cast; each member of the council has one vote. For decisions and elections, abstentions and invalid votes count towards the quorum, but not towards the calculation of the majority. In the event of a tied vote, the resolution is rejected.

122

(...)

II.

123

1. a) On 12 December 1990, the assembly of the Lippe Water Authority established in accordance with the amended law convened for its first meeting. It included 66 delegates from the cities, municipalities and districts, six representatives from the Land, a representative from the Chamber of Agriculture and 74 delegates from private companies and owners. The council elected by the assembly at this meeting was composed of six members from the cities, municipalities and districts and the Land, four members from the mines and other ‘commercial enterprises’ as defined by the law and five employee representatives. The first meeting of the newly elected council was likewise held on 12 December 1990. At this meeting, the five-member executive board was elected, which was made up of the chair, three further board members and the member responsible for personnel and social affairs.

124

b) On 29 November 1990, the newly established assembly of the Emscher Water Authority, including 50 delegates from the cities, municipalities and districts, 67 delegates from the mines and 31 delegates from commercial enterprises and private owners convened for its first meeting. The assembly elected the council, which was made up of five representatives of the districts, cities and municipalities, five representatives of the mines and private owners and five employee representatives. On the same day, the council convened for its first meeting and elected the executive board, including its chair, three further board members and the member responsible for personnel and social affairs.

125

c) Two members of the Lippe Water Authority and four members of the Emscher Water Authority, all from the group of commercial enterprises and mines, lodged constitutional complaints in the course of 1990. They directly challenged the provisions on employee co-determination. The constitutional complaints were not admitted for decision (Orders of the competent Chamber of the Federal Constitutional Court of 26 June 1991, 2 BvR 1735/90 and 2 BvR 1736/90) as not all legal remedies had been exhausted.

126

d) By letter of 13 September 1991, these members challenged the elections of the employee representatives and their deputies to the councils and the elections of the board members responsible for personnel and social affairs. The assemblies of the Lippe Water Authority and of the Emscher Water Authority declared the elections valid in their respective meetings of 12 December 1991 and 26 November 1991.

127

2. Previously, the same members had brought actions seeking a declaration that the elections to the council and assembly of the Water Authorities and the elections of the board members responsible for personnel and social affairs were invalid on the grounds that employee co-determination violated their fundamental right under Art. 2(1) of the Basic Law. […]

128

By judgments of 11 September 1992, the Gelsenkirchen Administrative Court (Verwaltungsgericht) dismissed the actions as inadmissible because the plaintiffs lacked standing. The Administrative Court held that the challenged elections constituted internal organisational acts that did not have external effects; the plaintiffs, which were neither bodies of the respective Water Authority nor part of such bodies, could not be affected by such internal acts.

129

3. With their appeals (Berufung), the plaintiffs sought an order requiring the assemblies of the Lippe Water Authority and the Emscher Water Authority, which have since also been sued by the plaintiffs, to declare the elections of the employee representatives invalid, or, in the alternative, to order the Lippe Water Authority and the Emscher Water Authority to refrain from adopting decisions with the participation of the employee representatives, insofar as the decisions do not exclusively concern water management matters.

130

By judgments of 9 June 1995, the Higher Administrative Court (Oberverwaltungsgericht) for the Land North Rhine-Westphalia rejected the appeals. It held that the actions were unfounded. […]

131

4. The Higher Administrative Court granted leave to appeal its judgments, and the plaintiffs subsequently challenged the judgments in appeals on points of law (Revision) before the Federal Administrative Court (Bundesverwaltungsgericht). With its orders of 17 December 1997 ([…]; Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 106, 64), the Federal Administrative Court suspended the proceedings in accordance with Art. 100(1) of the Basic Law. It referred to the Federal Constitutional Court the question of whether §§ 6, 12, 14(1) second sentence, 15(6), 16(1), (2) and (4), §§ 17(2), 18(5) of the Lippe Water Authority Act as well as §§ 5, 11, 13(1) second sentence, 14(6), 15(1), (2) and (4), 16(2), 17(5) of the Emscher Water Authority Act are compatible with the requirement of democratic legitimation of appointees and organisations, which is essential for the performance of public service tasks under Art. 20(2) and Art. 28(1) first sentence of the Basic Law, insofar as the Water Authorities’ organs – their assembly, council and executive board – are made up of officials that lack, either entirely or in part, an uninterrupted chain of legitimation that can be traced back to the people. The Federal Administrative Court held that a self-governing body of the type at issue, which has significant tasks relating to the protection and regulation of the common resource of water for a large catchment area and its entire population, could only satisfy the requirements arising from the principle of democracy through the democratic legitimation of appointees and organisations, and not in any other way, such as through functional-substantive legitimation only.

132-138

[…]

III.

139

1. The Land North Rhine-Westphalia considers the provisions referred for review to be constitutional. […]

140

[…]

141

2. The RAG Aktiengesellschaft (plaintiff no. 1 in the initial proceedings regarding 2 BvL 5/98) considers the Lippe Water Authority Act to be constitutional in an overall assessment. […]

142

3. The other plaintiffs in the initial proceedings maintain that their challenge is directed solely against the provisions regarding employee co-determination. […]

143

4. The joined party in the two initial proceedings – an employee representative on the councils of both Water Authorities – considers the Federal Administrative Court’s assessment that water authorities serve the public interest to be misguided. […]

144

[…]

145

5. The defendants in the initial proceedings, the Emscher Water Authority and the Lippe Water Authority as well as the assemblies of both Water Authorities, ultimately consider the provisions under review to be constitutional. […]

146-148

[…]

B.

149

The referrals are admissible. […]

150-152

[…]

C.

153

The referred provisions in the Lippe Water Authority Act and the Emscher Water Authority Act are compatible with the Basic Law.

I.

154

The challenged provisions satisfy the requirements set by Art. 20(2) of the Basic Law regarding the organisational structure of state authority derived from the people.

155

1. a) According to the case-law of the Federal Constitutional Court, on which the Federal Administrative Court based its orders of referral, the principle of democracy enshrined in Art. 20(2) and Art. 28(1) of the Basic Law requires that all state authority be derived from the people and be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies. These bodies require a form of legitimation that can be traced back to the citizens, i.e. the people (cf. BVerfGE 38, 258 <271>; 47, 253 <272>; 77, 1 <40>; 83, 60 <71>; 93, 37 <66>). ‘The people’ within the meaning of these constitutional provisions, and thus the subject of legitimation, are the respective citizens of the Federation or a Land (cf. BVerfGE 83, 60 <74>). All acts of public authority of a decisional character constitute an exercise of public authority that requires democratic legitimation (cf. BVerfGE 47, 253 <272 f.>; 77, 1 <40>; 83, 60 <73>; 93, 37 <68>). This applies both to decisions that have direct external effects and to those that are internal in nature and merely set the framework for the exercise of official tasks (cf. BVerfGE 93, 37 <68>); it also applies to the exercise of co-decision making powers, including rights of proposal (cf. BVerfGE 83, 60 <73>).

156

The following considerations apply with regard to direct state administration and municipal self-government: The democratic legitimation mandated by constitutional law requires an uninterrupted chain of legitimation from the people to the organs and officials entrusted with state tasks (cf. BVerfGE 47, 253 <275>; 52, 95 <130>; 77, 1 <40>; 83, 60 <72 f.>; 93, 37 <66>). When determining whether a sufficient level of democratic legitimation has been reached, the different forms of legitimation – institutional, functional, substantive and personal –, which are set out in the case-law of the Federal Constitutional Court and in legal scholarship, are not to be considered in isolation, but in interaction. What is decisive under constitutional law is not the form of democratic legitimation of state action, but its effectiveness; however, a certain level of legitimation is always required (cf. BVerfGE 83, 60 <72>; 93, 37 <66 f.>).

157

The exercise of state authority has democratic legitimation when the appointment of public officials can be traced back to the people (personal legitimation) and the actions of public officials have sufficient substantive legitimation, i.e. the officials act on behalf of the government and in accordance with its instructions, thus enabling the government to assume substantive responsibility vis-à-vis the people and Parliament (cf. BVerfGE 93, 37 <67 f.>).

158

Public officials have unrestricted personal democratic legitimation if they have been elected by the people or by Parliament, or if they have been appointed by or with the approval of another public official who in turn has personal legitimation. If public officials are appointed by a body which only in part consists of public officials with personal legitimation, full democratic legitimation requires that the majority supporting the decision also comprises a majority of the body’s members with unrestricted democratic legitimation (principle of double majority, cf. BVerfGE 93, 37 <67 f.>).

159

The principle of democracy also allows some room for the involvement of employee representatives, provided that this does not affect the principle that all who are subject to state authority must have the same influence on the exercise of state authority (BVerfGE 93, 37 <69>). The constitutionality of the involvement of employee representatives must be determined by an assessment of the significance of the measures for which their involvement is required.

160

b) These rules for the development of the principle of democracy, which the Federal Administrative Court relied on in its orders of referral, were developed by the Federal Constitutional Court for direct state administration at the federal and the Land level and for municipal self-government. The requirement of personal democratic legitimation (chain of legitimation) also applies to municipalities, as the scope of their self-governance is not subject to any additional limitations in terms of substance or function. The aim of Art. 28(1) second sentence of the Basic Law is not to further strengthen the participatory aspect inherent in all forms of self-government, but to ensure the uniformity of democratic legitimation by the people in the state order. […]

161

[…]

162

2. Water authorities of the type under review here are a form of non-municipal self-government that has evolved historically and is recognised under constitutional law in principle; this type of self-government is very heterogeneous and is summarised under the term ‘functional self-government’ ([…]).

163

a) The term ‘functional self-government’ is not used in the Basic Law. The term ‘self-government’ is merely used in Art. 90(2) of the Basic Law in the context of the administration of federal roads and motorways and in Art. 28(2) second sentence of the Basic Law. Art. 86, Art. 87(2) and Art. 130(3) of the Basic Law set out rules regarding federal bodies and institutions under public law. The drafters of the Constitution were aware of such historically evolved forms of functional self-government that existed when the Basic Law entered into force, and, by mentioning them, recognised their compatibility with the Constitution in principle ([…]).

164

b) The judgment of the First Senate of 25 July 1959 (BVerfGE 10, 89 ff. – Erft Water Authority) was concerned with a water authority organised as a self-governing body. In those proceedings, the operators of lignite mines had challenged their compulsory membership of the Erft Water Authority. The Federal Constitutional Court recognised the existence of units of indirect state administration and their exercise of public tasks in the form of self-government as self-evident and considered them to be unobjectionable under constitutional law. […]

165

[…]

166

In its subsequent case-law, too, the Federal Constitutional Court accepted the existence of forms of indirect state administration and the associated outsourcing of public tasks from direct state administration (cf., e.g., BVerfGE 15, 235 <242> […]; 37, 1 <26 f.> […]; 38, 281 <299> […]; 58, 45 <62 ff.> […]). However, the Court repeatedly emphasised that the powers of self-governing bodies are limited – including vis-à-vis its members –, and in particular with regard to the granting and exercise of the freedom to establish their own by-laws (cf. BVerfGE 33, 125 <157 ff.> […]; see also BVerfGE 36, 212 <216 f.>; 37, 1 <25>; 101, 312 <322 f.>).

167

3. a) Art. 20(2) of the Basic Law contains a fundamental national objective and a constitutional principle. In light of the latter, Art. 20(2) of the Basic Law is open to further development. Both the people and state organs must be able to see that ‘all state authority is derived from the people’, and it must be given practical effect. When circumstances change, adaptations may become necessary ([…]). Outside of direct state administration and that municipal self-government which is unrestricted in terms of substantive tasks, the principle of democracy allows different forms of organisation and exercise of state authority, in particular, those that deviate from the requirement that all decision-makers must have comprehensive democratic legitimation. Such an interpretation also makes it possible to give sufficient effect to the principles of self-government and autonomy, which are rooted in the principle of democracy (cf. BVerfGE 33, 125 <159>). Within the framework of rule by the people through their representatives, the Basic Law also allows special forms of stakeholder participation in the exercise of public tasks.

168

In this regard, the system of functional self-government complements and reinforces the principle of democracy. It can be seen as a manifestation of this principle insofar as it serves to realise the overarching objective of free self-determination for everyone (cf. BVerfGE 44, 125 <142>; […]). Under the Basic Law, the principle of democracy and self-government do not conflict with one another. Both the principle of democracy in its traditional manifestation of an uninterrupted chain of legitimation for public officials that can be traced back to the people and the system of functional self-government which ensures the organised involvement of stakeholders in the decisions affecting them realise the overarching idea of individuals living in a free order in self-determination (Art. 1(1) of the Basic Law; […]). The principle of democracy under Art. 20(2) of the Basic Law therefore allows the creation of special forms of self-government for limited public tasks through legislation – that is, through an act of the parliamentary legislator elected by the people that thereby has classic democratic legitimation. Firstly, the legislator may thus give stakeholders an effective say and mobilise expertise from outside the public administration. Secondly, the legislator may pursue the aim of facilitating an appropriate reconciliation of interests and thus help ensure that the purposes and objectives it adopted are achieved more effectively (cf. BVerfGE 37, 1 <26 f.>; […]). If the autonomous exercise of public tasks can successfully be combined with the protection of private interests, this increases the effectiveness of the parliamentary legislation in question. The exercise of those public tasks by the citizens involved in self-government is then in line with their own best interest; they are not just passively subject to public authority, but are actively involved in its exercise.

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If the parliamentary legislator chooses self-government for the exercise of certain public tasks, it may not stipulate a structure that would be incompatible with the fundamental idea of autonomous self-government that serves all interests concerned on the one hand, and with the effective exercise of public tasks on the other. Therefore, provisions regarding the organisational structure of the self-governing units must contain sufficient institutional safeguards to ensure that affected interests are taken into account properly and that particular interests are not favoured over others (cf. BVerfGE 37, 1 <27 f.>; […]).

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b) For the most part, it is for the legislator to choose the tasks to be conferred on self-governing bodies and to specify the structures and decision-making processes for performing these tasks (cf. BVerfGE 10, 89 <102, 104>; see also BVerfGE 37, 1 <26>). This will mostly concern limited areas of responsibility for which performance of the tasks by self-governing bodies has evolved historically and traditionally has been successful. Public tasks that are state tasks in the narrower sense – i.e., those performed by the state itself through its authorities – are excluded from such conferral (cf. BVerfGE 38, 281 <299>).

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Furthermore, the tasks that must be performed by the state as state tasks in the narrower sense cannot be derived from the principle of democracy under Art. 20(2) of the Basic Law. In particular, it cannot be inferred from Art. 20(2) of the Basic Law that services of general interest or other tasks must be performed by the state itself solely because such tasks are essential for the common good. This also applies to the task of preserving and protecting water that is at issue here. This is demonstrated by comparing this task with similarly important tasks such as waste management and energy supply, which are mostly performed by private companies, and as to which no constitutional concerns have been raised in light of Art. 20(2) of the Basic Law.

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c) The legislator’s leeway in creating and designing self-governing bodies also allows it to authorise self-governing bodies to perform binding acts with decisional character; this also applies to acts vis-à-vis third parties, i.e. non-members, albeit only to a limited extent. It is not the performance of public tasks as such, but the power to perform binding acts with decisional character that makes it necessary to review measures taken by a self-governing body in the context of the tasks conferred on it against the standard of Art. 20(2) of the Basic Law. With regard to functional self-government, this does not mean that such measures must be based on an uninterrupted chain of personal legitimation from the people to individual decision-makers. Yet under constitutional law, the organs of functional self-governing bodies may carry out binding acts of a decisional character only insofar as the people’s right to self-determination is ensured through the decisive influence of the people on such acts. This requires that the tasks and powers of self-governing bodies be sufficiently determined by a law adopted by Parliament and that their exercise be subject to oversight by democratically legitimated officials ([…]).

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4. Based on these standards, the organisational and decision-making structures of the Lippe Water Authority and the Emscher Water Authority do not give rise to any constitutional concerns arising out of Art. 20(2) of the Basic Law.

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a) The two laws under review here contain detailed directives regarding the tasks of the self-governing bodies, the creation of their organs and their powers.

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aa) The objective and purpose of the Lippe Water Authority are set out in § 1(1) third sentence of the Lippe Water Authority Act, which states that the Lippe Water Authority serves the public interest and its members. § 2(1) of the Lippe Water Authority Act sets out the tasks of the Water Authority, which include the regulation of water runoff and the maintenance of surface waters, renaturation and the regulation of groundwater levels as well as wastewater disposal and the disposal of waste produced in the course of carrying out the Water Authority’s tasks. § 2(2) and (4) of the Lippe Water Authority Act sets out further tasks outside the Water Authority’s area and tasks that go beyond the ‘mandatory tasks’ pursuant to section (1), which the Water Authority can assume following a decision of its assembly. Pursuant to § 3(1) of the Lippe Water Authority Act, undertakings of the Water Authority include the planning, construction, operation and maintenance of the facilities required to fulfil the tasks as well as all other evaluations and work required for the implementation of the tasks.

176

§ 7 of the Lippe Water Authority Act lays down the obligations of the Water Authority’s members: Members must provide information and documents to the Water Authority’s officials and install and operate necessary measuring equipment at their own expense when this is required to fulfil the Water Authority’s tasks (cf. § 7(1) first sentence of the Lippe Water Authority Act). Moreover, members are obliged to allow entry on their properties and in their facilities and take all actions necessary to allow the performance of water management surveys and the necessary preparatory and implementing work for the Water Authority’s undertakings (cf. § 7(2) of the Lippe Water Authority Act); pursuant to § 7(5) of the Lippe Water Authority Act, those affected can demand financial compensation for any disadvantages suffered in this regard. Pursuant to § 8 of the Lippe Water Authority Act, similar obligations can extend to non-members, which then also have a right to financial compensation (§ 8(2) fourth sentence in conjunction with § 7(5) of the Lippe Water Authority Act). In extreme cases, expropriation in accordance with the relevant Land legislation to carry out the Water Authority’s tasks is permissible (§ 9 of the Lippe Water Authority Act).

177

§ 11 grants the Water Authority the freedom to establish its own by-laws with regard to its internal affairs; in its section (3), it gives examples of some of the matters to be set out in the by-laws. § 14 of the Lippe Water Authority Act concerns the tasks of the assembly. The assembly adopts the by-laws, amendments to the by-laws and rules by which fees are assessed; moreover, it elects the members of the council (§ 14(1) of the Lippe Water Authority Act). Its further tasks are set out in detail in § 14(2) nos. 1-10 of the Lippe Water Authority Act.

178

§ 17 of the Lippe Water Authority Act defines the tasks of the Water Authority’s council. The council oversees the conduct of operations by the executive board (§ 17(1) third sentence of the Lippe Water Authority Act), elects the executive board and appoints one executive board member as chair (§ 17(2) first sentence of the Lippe Water Authority Act). Further tasks are described in detail in § 17(4) and (5) of the Lippe Water Authority Act.

179

The tasks of the executive board are set out in § 20 of the Lippe Water Authority Act. The executive board deals with day-to-day administrative matters and is responsible for all tasks that do not fall under the responsibility of the other organs of the Water Authority according to the law or the by-laws (cf. § 20(2) first sentence of the Lippe Water Authority Act). The chair of the executive board prepares the decisions of the organs and implements them; he or she is head of the administration of the Water Authority (cf. § 20(2) second and third sentence of the Lippe Water Authority Act). The executive board can object to decisions of the council adopted in accordance with § 17(4) and (5) of the Lippe Water Authority Act if these run counter to the Water Authority’s interests (§ 20(4) of the Lippe Water Authority Act). § 21 of the Lippe Water Authority Act governs representation of the Water Authority by the executive board or individual board members.

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Based on the foregoing, the general requirement that the Water Authority serve the public interest and its members (§ 1(1) third sentence of the Lippe Water Authority Act) is specified through the detailed itemisation of individual tasks in § 2 of the Lippe Water Authority Act. The tasks are precisely defined, as are the powers of the Water Authority (§ 3 of the Lippe Water Authority Act) and the associated obligations of its members and non-members (§§ 7 and 8 of the Lippe Water Authority Act). The rules on the internal organisation of the Water Authority regarding the freedom to establish its own by-laws, the tasks of the organs and representation of the Water Authority (§§ 11, 14, 17, 20, 21 of the Lippe Water Authority Act) also contain detailed and far-reaching directives, which are complemented by a comprehensive framework regarding finances (§§ 22 ff. of the Lippe Water Authority Act). It is difficult to envisage a more specific statutory determination of tasks, internal organisation and powers without the Water Authority losing its quality as a self-governing body.

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bb) An assessment of the provisions of the Emscher Water Authority Act leads to the same conclusion. Pursuant to § 1(1) third sentence of the Emscher Water Authority Act, the Emscher Water Authority likewise serves the public interest and its members; § 2(1) nos. 1-9 of the Emscher Water Authority Act, which sets out the tasks incumbent upon it, has the same wording as the provision on tasks in the Lippe Water Authority Act. § 3 of the Emscher Water Authority Act also corresponds to § 3 of the Lippe Water Authority Act. With regard to the obligations of members and non-members (§§ 6 and 7 of the Emscher Water Authority Act), the assessment made with respect to §§ 7 and 8 of the Lippe Water Authority Act applies accordingly. To the extent relevant for review here, the provisions regarding the freedom to establish its own by-laws (§ 10 of the Emscher Water Authority Act), the tasks of the assembly (§ 13), the council (§ 16), the executive board (§ 19) and representation of the Water Authority (§ 20) do not deviate from the corresponding provisions in the Lippe Water Authority Act.

182

b) Both the Lippe Water Authority Act and the Emscher Water Authority Act contain detailed and comprehensive provisions regarding state oversight; in addition to legal oversight, this also comprises some administrative oversight. For instance, a representative of the oversight authority – the Minister for the Environment, Regional Planning and Agriculture – must always be invited to meetings of the assembly and the council of both Water Authorities (§ 35(1) of the Lippe Water Authority Act, § 34(1) of the Emscher Water Authority Act). The oversight authority may request information regarding all matters concerning the Water Authorities at any time (§ 35(2) of the Lippe Water Authority Act, § 34(2) of the Emscher Water Authority Act). If the Water Authorities do not fulfil the tasks or obligations laid down in the law or the by-laws, or if they do not do so in due time or to the required extent, the oversight authority can order the Water Authority to take the necessary steps to rectify the matter within a specified time period. If the Water Authority does not comply, the oversight authority can undertake these tasks itself or have someone else do so at the expense of the Water Authority (§ 36(1) of the Lippe Water Authority Act, § 35(1) of the Emscher Water Authority Act). In case of a refusal to comply, the oversight authority can also order that necessary financial resources be included in the budget or determine the extraordinary expenses and order the collection of the necessary fees (cf. § 36(2) of the Lippe Water Authority Act, § 35(2) of the Emscher Water Authority Act). If the executive board objects to a decision of the assembly and the council, and these bodies do not revoke the decision, the oversight authority decides on the lawfulness of the objection (cf. § 36(3) of the Lippe Water Authority Act, § 35(3) of the Emscher Water Authority Act). Finally, the oversight authority may revoke decisions and orders of the Water Authorities that are in breach of the law or the by-laws or that run counter to the tasks and obligations of the Water Authorities; it may also demand that measures taken on the basis of such decisions or orders be reversed (cf. § 36(4) of the Lippe Water Authority Act, § 35(4) of the Emscher Water Authority Act). As a last resort, in order to ensure that the tasks are performed properly, the oversight authority can appoint a representative to perform all or individual tasks at the expense of the Water Authorities (cf. § 37(1) of the Lippe Water Authority Act, § 36 of the Emscher Water Authority Act). In addition, a number of significant operations of the Water Authorities are subject to approval by the oversight authority (cf. § 38 of the Lippe Water Authority Act, § 37 of the Emscher Water Authority Act).

183

c) The provisions on employee co-determination (§ 16(1) and (2) of the Lippe Water Authority Act, § 15(1) and (2) of the Emscher Water Authority Act and § 17(2) of the Lippe Water Authority Act, § 16(2) of the Emscher Water Authority Act) also do not violate Art. 20(2) of the Basic Law. In principle, employee co-determination in self-government is compatible with the fundamental idea – rooted in the principle of democracy – of the participation of stakeholders in the exercise of public tasks. It is true that the employees working in the self-governing body are not directly responsible for the exercise of the tasks set out in § 2 of the Lippe Water Authority Act and § 2 of the Emscher Water Authority Act, nor are they the addressees of the obligations pursuant to § 7 of the Lippe Water Authority Act and § 6 of the Emscher Water Authority Act. However, they indirectly participate in the exercise of the tasks of the self-governing bodies in question by virtue of their employment. It is therefore justified under any circumstances to grant the employees limited participation rights so that they can protect their interests and contribute to shaping their working conditions (cf. BVerfGE 93, 37 <69>). In the area of functional self-government, it can be permissible to appoint employee representatives to the organs of self-governing bodies in order to increase their effectiveness and to let them and external representatives participate in the general exercise of tasks. The involvement of non-stakeholders can be justified by the goal of increasing the effectiveness of the exercise of public tasks.

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aa) The Land Government’s explanatory memoranda to the draft acts (Landtag North Rhine-Westphalia, documents 10/3919 and 10/3920, both p. 39) state that employee co-determination is a specific instrument for the transfer of information at ‘management’ level. According to the explanatory memoranda, co-determination means co-responsibility and is capable of promoting both the efficiency of the Water Authority’s work and peaceful cooperation within the authority. In view of the democratically legitimated legislator’s leeway when it comes to functional self-government, these considerations are still compatible with the constitutional requirements of Art. 20(2) of the Basic Law. The Federal Constitutional Court can only find a violation of the principle of proper consideration of interests and of the prohibition on privileging vested interests if the legislator does not pursue constitutionally permissible purposes with its chosen organisational structure or if the purpose can evidently not be achieved due to a clearly incorrect factual basis. This is not the case here.

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(1) The aim pursued by the legislator – increasing effectiveness – is a permissible purpose under the principle of democracy. Where the Water Authorities perform the public tasks legally conferred on them more effectively due to the presence of employee representatives in their organs, this strengthens the principle of democracy, as the will of the people manifested in the law can only be realised in the framework of practical implementation.

186

(2) When taking into account the parliamentary legislator’s prerogative of assessment, it also cannot be found that the restriction of the principle of stakeholder participation at issue here is unsuitable per se for achieving the purpose of increasing effectiveness and promoting peaceful cooperation with the authority (cf. BVerfGE 71, 206 <215 f.>). However, doubts may arise insofar as peaceful cooperation does not require that the employee representatives have co-determination in all affairs of the Water Authorities, including those that do not concern matters affecting employees. Doubts can also be raised regarding the question of the extent to which external employee representatives that are not employees of the Water Authorities and are elected on proposals of the trade unions represented in the Water Authorities (§ 16(2) no. 2 of the Lippe Water Authority Act, § 15(2) no. 2 of the Emscher Water Authority Act) are capable of ensuring a transfer of information that increases effectiveness, given that they do not need to have any know-how in the field of water management or other technical expertise. In this respect, the Land legislator might have reason to reconsider the assessment that its co-determination model ensures both a balance of interests within the Water Authorities and the decision-making ability of the fee-paying member groups regarding the proper exercise of their public tasks and obligations (Landtag document, Landtagsdrucksache – LTDrucks 10/3919, p. 33; LTDrucks 10/3920, p. 33); however, the Federal Constitutional Court cannot find that the model is evidently unsuitable to fulfil its purpose in the present case.

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b) Nor can an unacceptable privileging of vested interests or an obstruction of the proper consideration of the interests of the fee-paying stakeholders be established on the grounds that the legislator provided for a high proportion of employee representatives in comparison to the proportion of representatives from commercial enterprises that are subject to mandatory membership fees. It must be taken into account that the five employee representatives do not form a majority in the 15-member council and that fundamental decisions, such as the adoption of the by-laws, fall to the assembly, which is formed solely on the basis of the principle of stakeholder participation. The provisions on employee co-determination merely affect the council and the executive board, where one of five members – the member that is responsible for personnel and social affairs – must be elected with the votes from the employee representatives. Moreover, the employee representatives in the respective councils are not appointed by the staff committee alone. The assembly – excluding the employee representatives – elects them by majority vote on a proposal from the staff committee, which must submit proposals for twice the number of the members to be elected (cf. § 16(2) first and second sentence of the Lippe Water Authority Act, § 15(2) first and second sentence of the Emscher Water Authority Act).

188

The provisions regarding the election and tasks of the executive board member responsible for personnel and social affairs also do not lead to an unconstitutional imbalance between the public and private interest groups that make up the Water Authorities. Despite the veto right of the majority of employee representatives in the council arising from § 17(2) second sentence of the Lippe Water Authority Act and § 16(2) second sentence of the Emscher Water Authority Act, the head of personnel must receive the majority of votes of all council members in order to be elected. Given that all important matters require a decision of the entire executive board (§ 21(3) of the Lippe Water Authority Act, § 20(3) of the Emscher Water Authority Act), the head of personnel does not have a veto right on the five-member executive board. Even though the head of personnel is the employees’ superior pursuant to § 20(2) fourth sentence of the Lippe Water Authority Act and § 19(2) fourth sentence of the Emscher Water Authority Act, this does not affect the authority of the other board members to issue instructions to the employees in the respective areas assigned to them. In addition, the entire executive board decides on the basic principles of employment for the employees (cf. § 17(5) no. 8, § 21(3) first sentence of the Lippe Water Authority Act, § 16(5) no. 8, § 20(3) first sentence of the Emscher Water Authority Act). When concluding work agreements, it is primarily the head of the authority – which in the present case is the chair of the executive board – that acts on behalf of the authority (§ 20(2) third sentence of the Lippe Water Authority Act, § 19(2) third sentence of the Emscher Water Authority Act).

II.

189

The other provisions referred for review by the Federal Administrative Court are also compatible with the Basic Law. No violation of the principle of the rule of law (Art. 20(3) of the Basic Law) or of Art. 2(1) of the Basic Law can be ascertained.

190

1. Insofar as § 6(1) nos. 2, 5 and 6 of the Lippe Water Authority Act and § 5(1) nos. 3 and 4 of the Emscher Water Authority Act provide for compulsory membership by private actors, this is compatible with the fundamental rights within the framework of the constitutional order (cf. BVerfGE 10, 89 <102 ff.>; 38, 281 <299>; 78, 320 <329>).

191

Both Acts are in line with the principle of the lawful conduct of the administration that is rooted in the principle of the rule of law. For interferences with the legal sphere of the individual, this principle requires a limited and specific legal authorisation from the executive branch (established case-law of the Federal Constitutional Court, cf., e.g., BVerfGE 6, 32 <42>).

192

The legislator has satisfied the principle of the lawful conduct of the administration with regard to acts giving rise to interference of the Lippe Water Authority and the Emscher Water Authority by setting out a detailed legal framework. Both the Lippe Water Authority and the Emscher Water Authority have powers giving rise to interference, for instance, when it comes to the use of properties or facilities of members and third parties (cf. § 7(5), § 8(2) of the Lippe Water Authority Act, § 6(5), § 7(2) of the Emscher Water Authority Act). Such decisions are made by the entire executive board (cf. § 17(5) no. 3, § 21(3) first sentence of the Lippe Water Authority Act, § 16(5) no. 3, § 20(3) first sentence of the Emscher Water Authority Act). The head of personnel is clearly in the minority on the executive board. Moreover, just like the other members of the executive board, the head of personnel is also bound by the legal prerequisites that must be met to issue an order for the use of properties. Such an order must be adopted by a majority of executive board members and is subject to the consent of the council (cf. § 17(5) no. 3 of the Lippe Water Authority Act, § 16(5) no. 3 of the Emscher Water Authority Act). The council thus acts as a check on the executive board, which ultimately benefits those whose properties might be used. Conversely, the executive board can object to unlawful decisions of the council and submit the matter to the assembly for decision (cf. § 14(3), § 20(4) first sentence of the Lippe Water Authority Act, § 13(3), § 19(4) of the Emscher Water Authority Act). Moreover, affected members and third parties can lodge an objection. If no remedy is provided by the executive board, an independent committee of complaints decides, which does not include any employee representatives (cf. § 7(5) third and fourth sentence, § 8(2) fourth sentence of the Lippe Water Authority Act, § 6(5) third and fourth sentence, § 7(2) fourth sentence of the Emscher Water Authority Act). The same applies to the enforcement of orders directed at the use of properties and facilities (cf. § 17(5) no. 10, § 30, § 32 of the Lippe Water Authority Act, § 16(5) no. 10, § 29, § 31 of the Emscher Water Authority Act). It also extends to the collection of membership fees. The executive board is responsible for issuing the fee notices (cf. § 27(1) third sentence of the Lippe Water Authority Act, § 26(1) third sentence of the Emscher Water Authority Act). In doing so, it not only must comply with the formal and substantive requirements provided for in §§ 25 ff. of the Lippe Water Authority Act or §§ 24 ff. of the Emscher Water Authority Act; it must also adhere to the supplementary provisions in the by-laws, including the principles of fee assessment. The council, and thus the employee representatives, are not involved in this process. Fee notices can also be appealed to the committee of complaints. Insofar as expropriations for the purpose of performing the Water Authorities’ tasks are concerned, only the executive board and the council have a right to request such expropriations (§ 17(5) no. 4 of the Lippe Water Authority Act, § 16(5) no. 4 of the Emscher Water Authority Act), while the decision on whether to carry out an expropriation is taken by the district government as the competent authority (cf. § 9 second sentence of the Lippe Water Authority Act, § 8 second sentence of the Emscher Water Authority Act). The tasks and powers of the assembly, which does not have employee representation, are derived from § 14 of the Lippe Water Authority Act and § 13 of the Emscher Water Authority Act.