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All power exercised by or on behalf of the state in the form of public administration in the Federal Republic of Germany is governed by Germany's administrative law (German: Verwaltungsrecht, abbreviated VerwR or VwR). What public authorities (German: Behörden) are allowed, empowered, and broadly instructed to do, which purposes , and what their rightful organizational structure and procedure, are determined by this branch of law, as are their rightful organizational structure and . Its focus have classically been the legal relationships between public and private entities.
In Germany, administrative law is wholly public law. It consists only of law that endows public authorities performing administrative functions with rights and obligations different from private actors. Administration may create legal rights and duties using the same laws that empower private entities to do so, but this does not make these laws part of administrative law. Rights and obligations in the law that are created (recognized, specified, conferred, agreed upon, altered, imposed) through the action of a public authority are subject to administrative law.
Public officials (German: Beamte) and employees of the administration have special duties to their superiors under internally-focused administrative law. Their outward actions as public officials, though, are imputed to the public authority on whose behalf they are acting.
Historical development and constitutional context
editFunctional and formal scope
editAdministrative law has been differentiated from other branches of public law by scholars, courts, and legislators, since the late 19th century in the German language area;[1] 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).[2] 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 in law
editGerman 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.[3] 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.[4]
Positive definitions abound, but none has won out over the others, or been entirely convincing to scholars of German administrative law.[5] 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.[6]
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.
Administration by function
edit- Ordnungsverwaltung (rectifying administration) – upholding and implementing prohibitions and granting exceptions from them
- Leistungsverwaltung (administration of services) – granting material assistance to individuals/groups and the public
- Daseinsvorsorge
- Bau-/Infrastrukturverwaltung
- Abgabenverwaltung (revenue administration)
- Steuerung/Lenkung (als Querschnittsfunktion) – influencing society (people not part of the state)
- Informationsverwaltung (als Querschnittsfunktion) (information administration) → und: Exekutive als "informierte Gewalt" in der staatlichen Funktionenverteilung?
- Innere Verwaltung/Eigenverwaltung (internal administration/self-administration)
Federalism and local autonomy
editThere are two levels of administration (disregarding the EU level, since the Union's administrative agencies very rarely interact directly with private persons): the Land level and the federal level. It is a particular feature of the German model of federalism that while the federation dominates the field of legislation, the bulk of legal competencies to execute law rest with the Länder.[7] Besides carrying out their own laws, it is also their responsibility to execute federal law (GG art. 83). As a rule, when a Land is executing a provision of federal law under its own responsibility, it legislates its own administrative procedure and organizational structure (GG art. 84I ).
The federation's ability to establish administrative authorities of the base and middle echelons is limited to specifically enumerated
Rechtsträger (Verwaltungsträger)
Deputized private actors
editPublic administration governed by private law
edit"Verwaltungsprivatrecht"
Types of administrative law
editLegal-theoretical analysis. Different parts of administrative law perform opposing functions. Among these are:
- Law that recognizes, confers, or determines the specifics of private persons' rights when faced with administrative authorities' behavior (actual, real-world behavior, as well as legal action). Since all private persons have the fundamental right to behave as they choose under German constitutional law (GG art. 2I ) unless there is an opposing duty in law, law that determines the rights of private persons is necessarily either declaratory, or it empowers them to take action in the law or in fact to clarify and defend these rights. Administrative law may also limit these rights, by empowering the administration to act in some way towards private persons (be this physically affecting their person or their property, imposing legal duties on them or altering the substance of their legal powers, or disadvantaging them comparatively by treating them unequally, e.g. subsidizing a market competitor);
- Law that
Organizational and civil service law
editGG art. 33IV, V
For a long time, doctrine refused to accept that legal relationships could exist within the administration.
Federal versus Land administrations
editInternal hierarchical mechanisms
editInstruction
editWeisung
Standing instructions
editVerwaltungsvorschrift
General doctrines pertaining to activities not purely internal
editThe main body of administrative law is concerned with administrative action that has external effects.
Sources of law
editGermany'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.[8] 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.[9]
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.[8]
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.[10] 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.[11] 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).[10]
Central principles
editCentral 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:[12]
- 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. 1III, 20III).[13] 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.[14]
- 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.[15]
Hierarchical authority – see Dreier, H. (1991). Hierarchische Verwaltung im demokratischen Staat (Habil.). Tübingen: Mohr Siebeck.
Administrative-law relationship (Verwaltungsrechtsverhältnis)
editGerman: Verwaltungsrechtsverhältnis
Forms of administrative action
editThere is no exhaustive enumeration of the ways in which public administration may be conducted.[16] 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)
editThe central doctrinal category in German administrative law has traditionally been the administrative ordinance (German: Verwaltungsakt, abbreviated VA).[a] 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.[18]
The concept is a product of late 19th century scholarship. Otto Mayer's 1895 definition was the one to find widespread adoption:[19] "The Verwaltungsakt is an utterance of authority in the realm of administration that tells the subordinate of the state (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 when applied to a set of facts; the subject (the subordinate to rightful authorities) is thenceforth bound primarily by this utterance, rather than directly by the laws.[b]
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.[20] 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.[21]
Execution of law versus lawful decision-making
editAddressee
editAllgemeinverfügung
Legal force
editExcept 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 § 43II, III. Voidness (§ 44 VwVfG) – voidability
Lawfulness
editRechtmäßigkeit
Retraction and revocation
editRücknahme/Widerruf
Public-law agreement
editÖffentlich-rechtlicher Vertrag
By-law
edit(Autonome) Satzung
Delegated legislation
editRechtsverordnung
Acts-in-fact
editSchlichtes Verwaltungshandeln Art. 107 of the 1919 Weimar Constitution Persistence of this mindset for at least two decades after the VwGO's enactment, see: Ipsen, AllgVerwR (11th ed. 2019), mn. 313, 318
Administrative procedure
editJurisdiction
editLaw of enforcement and costs
editSpecialized areas of administrative law
editGerman 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).
Polizeirecht
editRelation of administrative law and the penal law (different ends: administration is preventive and socially-engineering; penal enforcement is not mainly for the prevention of imminent harms). Some institutions, such as the police force, may fulfill both tasks, and fall under different legal régimes depending on their ends in the particular situation.
Law concerning the response to hazards liable to interfere with the legal rights, or the lawful order of society, or to breach social norms (German: öffentliche Sicherheit und Ordnung)
What is not 'police law': Criminal investigation and prosecution
Subjective turn: Martens, Wolfgang. "Der Schutz des einzelnen im Polizei- und Ordnungsrecht", DÖV 1976, 457 ff.
Police as an institution executing and acting under administrative law
editGeneral police law
editPolizei refers not only to the institution of police, but also to a type of government activity, in which sense it is essentially coextensive with Gefahrenabwehr, 'threats abatement'. The task of police activity is to prevent or end any situation that is liable to jeopardize (gefährden) public security and order (öffentliche Sicherheit und Ordnung). Public security and order are known as the polizeiliche Schutzgüter, 'police-protected goods'.
Duty to the police (German: Polizeipflichtigkeit), who has; and responsible party (German: Verantwortliche(r)), who is
General material and procedural considerations specific to this branch of admin. law
General and special authorizations for acting
Legal basis for delegated legislation (German: Polizeiverordnung)
Specialized police law
editVersammlungsrecht
Bauordnungsrecht
Urban and land use planning law
editMunicipality law
editEnvironmental protection law
editBusiness-related administrative law
editWirtschaftsverwaltungsrecht (Öffentliches Wirtschaftsrecht)
Fields with a regulation approach
editReview of administrative action
editPresent areas of discussion
editSee also
edit- Administrative law#Germany
- Police power – especially in U.S. constitutional law, the legal power of the state to compel its citizens' obedience in order to promote public safety, order, welfare, and morals
References
editScholarly literature
editTextbooks and article-by-article commentaries
edit- 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.
- Huber, Peter M. [in German]; Voßkuhle, Andreas, eds. (2024), Grundgesetz: Kommentar [Basic Law: Article-by-Article Commentary], vol. 1–3, Munich: C.H. Beck, ISBN 978-3-406-79230-4, OCLC 1435156528
- Schoch, Friedrich [in German]; Schneider, Jens-Peter [in German] (eds.), Verwaltungsrecht (4 vols.) (loose-leaf collection), vol. 3–4 ~ VwVfG, Article-by-Article Commentary, Munich: C.H. Beck, ISBN 978-3-406-76161-4, OCLC 1241238821
- 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.
- Ipsen, Jörn [in German] (2019). Allgemeines Verwaltungsrecht [Generally Applicable Administrative Law] (11th ed.). Munich: C.H. Beck (Franz Vahlen imprint). ISBN 978-3-8006-5897-8. OCLC 1079601709.
Treatises
edit- Wellerdt, Alexander (2018). Organisation der Regulierungsverwaltung. Am Beispiel der deutschen und unionalen Energieverwaltung [The Organization of Regulatory Administration: Using the Example of German and Union Energy Administration.]. Berlin and Heidelberg: Springer. ISBN 978-3-662-56451-6. OCLC 1024311309.
Miscellany
editCourt decisions
edit- Entscheidungen des Bundesverwaltungsgerichts [Decisions of the Federal Court of Administration], edited by members of the court: 178 volumes (1955–present). Cologne: Wolters Kluwer (Carl Heymanns imprint). ISSN (print ed., 1991–present): 0013-9106. OCLC 645091255.
Notes
editExplanatory notes
edit- ^ Possible translations include administrative act or act of administration (very literal), and administrative decision or administrative ordinance. Verwaltungsakt derives from the French acte administratif, both terminologically and conceptually;[17] compare to the acte administratif unilatéral décisoire in modern French administrative law.
- ^ Deutsches Verwaltungsrecht, 1st ed., vol. I (1895), p. 95, available via Deutsches Textarchiv.
- ^ As late as 1980, the Federal Court of Administration had to admonish the appeals courts that legal relief was not conditional on the presence of an administrative ordinance (see BVerwGE, vol. 60, pp. 144–154, at p. 145).[22]
Citation notes
edit- ^ Bull & Mehde 2022, at margin notes 501 and 502.
- ^ Maurer & Waldhoff 2024, § 2, at margin notes 8 and 9.
- ^ Maurer & Waldhoff 2024, § 1, at margin note 6, name Otto Mayer (Deutsches Verwaltungsrecht, 1895/96, vol. I, p. 7) and Walter Jellinek (Verwaltungsrecht, 1928, p. 6) as early and influential proponents of this model.
- ^ Maurer & Waldhoff 2024, § 1, at margin note 6.
- ^ Maurer & Waldhoff 2024, § 1, at margin note 8.
- ^ Maurer & Waldhoff 2024, § 1, at margin notes 9–12.
- ^ H.-H. Trute, in: Huber/Voßkuhle, GG, art. 83, at margin note 6.
- ^ a b Maurer & Waldhoff 2024, § 3, at margin note 2.
- ^ Maurer & Waldhoff 2024, § 5, at margin note 1.
- ^ a b Hufen 2024, § 2, at margin note 22.
- ^ Hufen 2024, § 1, at margin note 2.
- ^ Cf. Detterbeck, Steffen (2023). Allgemeines Verwaltungsrecht [Generally Applicable Administrative Law], 21st ed. Munich: C.H. Beck, at margin notes 226 et seq.
- ^ Maurer & Waldhoff 2024, § 6, at margin note 2.
- ^ Maurer & Waldhoff 2024, § 6, at margin note 16.
- ^ Oberrath, öffentliches Wirtschaftsrecht pp. 12–14
- ^ Bull & Mehde 2022, at margin note 159.
- ^ M. Ruffert, in: Ehlers & Pünder 2022, § 21, at margin note 6.
- ^ M. Ruffert, in: Ehlers & Pünder 2022, § 21, at margin note 5.
- ^ Maurer & Waldhoff 2024, § 9, at margin note 2.
- ^ M. Knauff, in: Schoch/Schneider, VwVfG, article-by-article commentary, as updated last by supplement no. 4 (Nov 2023), § 35, at margin note 40.
- ^ M. Knauff, in: Schoch/Schneider, VwVfG, article-by-article commentary, as updated last by supplement no. 4 (Nov 2023), § 35, at margin note 43.
- ^ Ipsen 2019, at margin note 318, fn. 13.
Further reading
edit- Goodnow, Frank J. (1893). Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany. London; New York: G.P. Putnam's Sons. OCLC 60730085.
- Schoch, Friedrich [in German]; Eifert, Martin [in German], eds. (2023). Besonderes Verwaltungsrecht [Specialized Areas of Administrative Law] (2nd ed.). Munich: C.H. Beck. ISBN 978-3-406-80573-8. OCLC 1406021937.
- Stober, Rolf [in German]; Kluth, Winfried [in German], eds. (2023). Wolff/Bachof/Stober/Kluth Verwaltungsrecht II [Wolff, Bachof, Stober and Kluth's Administrative Law, vol. 2] (8th ed.). Munich: C.H. Beck. ISBN 978-3-406-64071-1. OCLC 1371212818.
- 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: C.H. Beck (Franz Vahlen imprint). ISBN 978-3-8006-7196-0. OCLC 1391783853.
- 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.
- Kingreen, Thorsten [in German]; Poscher, Ralf [in German] (2022). Polizei- und Ordnungsrecht [Police and Order Law] (12th ed.). Munich: C.H. Beck. ISBN 978-3-406-79576-3. OCLC 1347215637.
- Bäcker, Matthias [in German]; Denninger, Erhard [in German]; Graulich, Kurt [in German], eds. (2021). Lisken/Denninger Handbuch des Polizeirechts [Lisken and Denninger's Handbook of Police Law] (7th ed.). Munich: C.H. Beck. ISBN 978-3-406-74370-2. OCLC 1277313845.