Draft:Administrative law of Germany

Functional and formal scope

In Germany, administrative law (German: Verwaltungsrecht) has been differentiated from other branches of public law by scholars, courts, and legislators, since the late 19th century; the precise delimitations of the term, however, are in contention (which is especially relevant because German legal scholarship uses a terminological approach to conceptualizing the law). Administrative law defines all aspects of public administration in the modern German state.

German scholarship on administrative law usually presents its description of Germany's body of rules for public administration in two parts: General doctrines of administrative law (German: allgemeines Verwaltungsrecht), and doctrines pertaining to particulate fields of administrative law (German: besonderes Verwaltungsrecht, lit. 'special law of administration').

Definition of administration

German legal scholarship does not have an agreed-upon definition for public administration.

All that is administration, and is thus subject to administrative law, might be deemed to extend to all state activity of a certain type (material definition of public administration). Where the parliament imposes a fine on one of its members for misbehavior, or a presiding judge directs a disruptive member of the public to be removed from the viewing gallery, the question arises whether to treat these acts of public authority as acts of administration (and therefore executive in nature), even though they are performed by component parts of the state (that is to say, the government) that the law formally classifies as a legislative or a judicial body, respectively.
The opposite approach – the formalist definition of public administration – begins its examination by considering all those public authorities intended (judging by their lawful charter, organizational context, internal structure, and performed tasks) to do the work of public administration, and equates their functioning with public administration. There is some danger of circular reasoning, since the formal categorization of the organizational unit may in turn derive from some material conception of its function. Some functions that might, in the material view, be seen as not of the executive type, and thus not as belonging to the field of administration (such as the creation of rules with the force of law, which are usually thought of as legislative), would then be held to the standards of administrative law, and not another field of law.

This discussion is of seen as being of particular importance when considering the role of administrative law in maintaining the division of government powers. A traditional, negative approach tries to define administration by subtracting those operations of the state which cannot be called administration, namely law-making and adjudication. Using this negative definition, though, requires law-making and adjudication to be defined first, and leaves some activities that are a poor fit for the term "administration", such as the cabinet government's political leadership decisions, within the bounds of the definition.
Positive definitions abound, but none has won out over the others, or been entirely convincing to scholars of German administrative law. Nonetheless, certain features may be seen as being charactersitic of administration: According to Maurer and Waldhoff, administration is social engineering (exerting influence on the non-state, societal domain) oriented towards some conception of the (ever-changing) public interest; it consists of taking action in the present, with a view to engineering the future; and it is the taking of concrete measures to regulate individual cases and to realize particular plans.

Administrative law, then, determines the organizational pre-conditions, the action and forms of action, and the completion of which duties and the fulfillment of which purposes will determine the face of public administration.

Federalism and local autonomy

Rechtsträger (Verwaltungsträger)

By function

• Ordnungsverwaltung (administration by direct intervention)

Organizational and civil service law

GG art. 33_{IV, V}

Internal hierarchical mechanisms

Standing instructions

Verwaltungsvorschrift

Instruction

Weisung

General provisions and doctrines

The main body of administrative law is concerned with administrative action that has external effects.

Sources of law

Germany's principal piece of legislation concerning the legal forms and principles common to most fields of its public administration is the Law on Administrative Procedure (German: Verwaltungsverfahrensgesetz, abbreviated VwVfG); before the enactment of this law in 1977, these rules had only been general principles developed in the scholarly literature and the courts. The VwVfG is not a full codification of the generally applicable ground rules of German administrative law, since it mostly only determines the procedure to be followed by public authorities in the fulfillment of their tasks, rather than mandating the substance of public administration.
The VwVfG is a federal law that only applies to administration carried out by the German federal authorities. The vast majority of public administration in Germany, however, is performed by its component federal states (German: Bundesländer), as they are responsible for the execution both of federal laws and their own laws, with execution of the laws directly by authorities of the Federal Republic being the exceptional case (pursuant to article 83 of the 1949 German Constitution). All 16 German Länder have enacted a State Law on Administrative Procedure of their own that is nearly word-for-word identical with the federal VwVfG.

With regard to the law of social safety nets and welfare (German: Sozialrecht), the VwVfG is supplanted by Volume X of the Social Law Code (German: Zehntes Buch Sozialgesetzbuch, abbreviated SGB X), and other general rules for administration in this area may be found in parts of Volume I and IV; the Revenue Code (German: Abgabenordnung, abbreviated AO) also supersedes the VwVfG with respect to the procedures of the tax authorities.

The law governing the adjudication of questions of administrative law before the courts of general administrative jurisdiction (German: Verwaltungsgerichte) is the Code on Administrative Courts (German: Verwaltungsgerichtsordnung, abbreviated VwGO), which was enacted in 1960. Though the VwGO was not conceived as a full codification of court process for the courts of general administrative jurisdiction, and VwGO § 173 directs these courts to apply Germany's Code of Civil Procedure wherever the VwGO lacks special rules, proceedings before the courts of general administrative jurisdiction are mostly distinct from civil proceedings before the courts of general jurisdiction. The VwGO also does not apply to the courts of special administrative jurisdiction over tax disputes (German: Finanzgerichte) or over social benefits disputes (German: Sozialgerichte).

Central principles

Central legal principles in the field of public administration ‒ mostly developed before the adoption of the modern 1949 German Constitution, but buttressed and expanded after its advent ‒ include:

• The principle of legality (lawfulness) of the executive: administrative agencies are bound to act where a law (of parliament, or of delegated legislation) prescribes it, and to not violate any laws (see GG artt. 1_III, 20_III). Where its actions may burden or comparatively disadvantage a person, they must rest on a grant of authority by the legislature: this concept is called the (grundrechtliche) Vorbehalt des Gesetzes or Eingriffsvorbehalt, meaning that limiting interference with (fundamental) rights is a sphere of action that is reserved to statute.
• The principle of legal security, which includes a principle of legal certainty and the principle of non-retroactivity.
• The principle of proportionality, which means that an act of an authority has to be suitable, necessary and appropriate.

Hierarchical authority – see Dreier, H. (1991). Hierarchische Verwaltung im demokratischen Staat (Habil.). Tübingen: Mohr Siebeck.

Administrative-law relationship (Verwaltungsrechtsverhältnis)

German: Verwaltungsrechtsverhältnis

Forms of administrative action

There is no exhaustive enumeration of the ways in which public administration may be conducted. There are, however, several formalized methods of operation (German: Handlungsformen) that are legally defined or identified by courts and legal scholars, and several academic legal classifications developed to conceptualize various types of informal action.

Administrative ordinance (Verwaltungsakt)

The central doctrinal category in German administrative law has traditionally been the administrative ordinance (German: Verwaltungsakt, abbreviated VA). An administrative ordinance is any act-in-the-law (juridical act) by which a public authority (Behörde) unilaterally, in exercise of its right to do so in its capacity as a public authority (Hoheitsrecht), outwardly determines a right or obligation pertaining to a private person. Its distinguishing feature is that it creates a new binding rule whose legal effect is not directly dependent on the legal basis for its creation.

Otto Mayer, anon. 1932 portrait, Strasbourg.

The concept is a product of late 19th century scholarship. Otto Mayer's 1895 definition was the one to find widespread adoption: "The Verwaltungsakt is an obrigkeitlicher Ausspruch (authoritative dictum), in the realm of administration, that tells the Unterthan (subordinate, subject) what shall be his rightful course of action in the individual case." In this view, the administrative ordinance is, like a court judgment, a specification of what the law is given a particular set of circumstances; the subject (the subordinate to rightful authorities) is thenceforth bound primarily by this utterance, rather than directly by the laws.

This Bescheid contains several administrative ordinances: declining to accord the status of refugee to the applicant; declining to recognize the applicant's right to asylum and other protections; determining that legal prohibitions against deportation do not apply; and notifying the applicant that they are obliged to leave the country within 30 days, lest they be deported.

VwVfG § 35 sentence 1 now provides a statutory definition for the administrative ordinance: It is any decree, decision, or other official measure that a public authority takes within the sphere of public law to . The placement of the provision in the statute's system of rules supports the conlcusion that the Verwaltungsakt is intended to be the standard way for the administration to act when making individualized decisions. Whether some action by a public authority is to be qualified as an administrative ordinance or not depends on what must objectively be seen to have been declared in the legal sense; any communicative action by the authority, regardless of form, may qualify.

Legal force

Except in the narrowly prescribed cases of VwVfG § 44, an administrative ordinance maintains its legal force for as long as and insofar as it has not become moot or been formally lifted, VwVfG § 43_II, III.

Voidness (§ 44 VwVfG) – voidability

Lawfulness

Rechtmäßigkeit

Retraction and revocation

Rücknahme/Widerruf

Public-law agreement

Öffentlich-rechtlicher Vertrag

Generalized administrative decision

Allgemeinverfügung

By-law

(Autonome) Satzung

Delegated legislation

Rechtsverordnung

Acts-in-fact

During the first decades of the Federal Republic's existence, courts construed some real-world actions – such as a police officer beating a protestor with a baton – as implicitly being accompanied an administrative ordinance ordering the addressee to willingly suffer the real-world action (Duldungsanordnung). This construction enabled courts to review the legality of these real-world actions at a time when the law did not yet provide for judicial review of real-world action by administration.

Schlichtes Verwaltungshandeln

Law of specialized areas of public administration

German legal scholarship traditionally organizes the body of German administration-related law into the following fields, each with its particular legal doctrines and written rules:

• the law governing preventative measures against hazards to common goods (or, if civil process cannot be timely availed to remedy the hazard, against individual goods), especially public safety and order (Polizeirecht or Gefahrenabwehrrecht);
• environmental protection law (German: Umweltschutzrecht, including protection against emissions (German: Immisionsschutz) and wildlife protection (German: Naturschutz));
• Urban and land use planning law (Städtebaurecht and Raumordnungsrecht);
• the law regulating commerce and trades (German: Gewerberecht).

References

• Maurer, Hartmut [in German]; Waldhoff, Christian [in German] (2024). Allgemeines Verwaltungsrecht [Generally Applicable Administrative Law] (21st ed.). Munich: C.H. Beck. ISBN 978-3-406-80559-2. OCLC 1415299836.

• Hufen, Friedhelm [in German] (2024). Verwaltungsprozessrecht [Law of Judicial Procedure in Administrative Matters] (13th ed.). Munich: C.H. Beck. ISBN 978-3-406-80591-2. OCLC 1416406060.

• Schoch, Friedrich [in German]; Schneider, Jens-Peter [in German] (eds.), Verwaltungsrecht (loose-leaf collection) (in German), vol. 3, 4 / VwVfG, part 1 & 2, Munich: C.H. Beck, ISBN 978-3-406-76161-4, OCLC 1241238821

• Koch, Hans-Joachim [in German]; Rubel, Rüdiger [in German]; Heselhaus, F. Sebastian M. [in German]; Hofmann, Ekkehard [in German] (2023). Allgemeines Verwaltungsrecht [Generally Applicable Administrative Law] (4th ed.). Munich: Franz Vahlen. ISBN 978-3-8006-7196-0. OCLC 1391783853.

• Bull, Hans Peter; Mehde, Veith [in German] (2022). Allgemeines Verwaltungsrecht. Mit Verwaltungslehre [Generally Applicable Administrative Law. Comprising the Study of Administration] (10th ed.). Heidelberg: C.F. Müller. ISBN 978-3-8114-5961-8. OCLC 1347435679.

• Ehlers, Dirk [in German]; Pünder, Hermann [in German], eds. (2022). Allgemeines Verwaltungsrecht [Generally Applicable Administrative Law] (16th ed.). Heidelberg: C.F. Müller. ISBN 978-3-8114-5951-9. OCLC 1371143620.

• Voßkuhle, Andreas; Eifert, Martin [in German]; Möllers, Christoph [in German], eds. (2022). Grundlagen des Verwaltungsrechts [Foundations of Administrative Law] (3rd ed.). Munich: C.H. Beck. ISBN 978-3-406-75448-7. OCLC 1338993925.