Draft:Administrative law of Germany

For broader coverage of this topic, see Administrative law.

The administrative law (German: Verwaltungsrecht, abbreviated VerwR or VwR) of Germany governs all uses of state power by administrative public authorities (German: Behörden) in the Federal Republic of Germany at the national and sub-national (Land) level. In this context, public administration is the execution of laws and lawful action in the public interest. The classical focus of German administrative law is the legal relationship between public entities exercising sovereign authority and legal actors subject to that authority (generally private persons). To some extent, administrative law now serves as an instrument of administrative direction and agenda-setting (Steuerung), rather than only measuring the rightfulness of administrative actions. This is because technological progress, the advent of democratic government, globalization and privatization in Germany have made the ends and means of public administration more complex – administrative law doctrine has expanded its reach and methods to maintain its relevance to the field.

Not every action of an administrative authority is subject to administrative law (being a subset of public law); public authorities may create legal rights and duties under private law, that is, using the same laws that empower private entities to create rights and duties. They are then subject to the same rules and jurisdiction as a private actor. Administrative law only includes law that imposes duties or grants powers specific to public entities. Disputes arising under a provision of administrative law are not adjudicated by the same courts that hear civil and criminal cases (ordinary courts). Such cases are subject to general administrative jurisdiction (German: Verwaltungsgerichtsbarkeit): This jurisdiction is exercised by a fully independent branch of courts with the Federal Court of Administration as its apex court (whose decisions are not revisible by the ordinary courts). Administrative jurisdiction does not attach to the fact that one or more parties are public entities; rather, the point of differentiation is the classification of the operative legal rule as being of a public-law or private-law nature.

Administrative law posits both formal and material rules to determine the lawfulness and legal effects of administrative actions. A formal rule might make voidable an order issued by an office outside of its assigned function, even if it is impeccable in substance; a material rule might declare void an order if it is physically impossible to obey.

The field of general administrative law (German: allgemeines Verwaltungsrecht) contains broad, cross-sectional criteria for the lawfulness of administrative behaviour, such as following required decision-making procedure. By contrast, special administrative law (German: besonderes Verwaltungsrecht) comprises administrative law specific to a certain area of life, such as measures against disturbances of public safety and order (German: Polizeirecht, lit. 'police law') or urban planning and land use planning (German: Baurecht, lit. 'construction law'). These are usually highly codified. This category also includes the law of public officials (German: Beamtenrecht) and administrative organization (German: Verwaltungsorganisationsrecht), whose rules almost never directly impact private persons. Outward actions of officials are imputed to the public authority on whose behalf they are acting. Public authorities may have an independent legal personality, or may be mere agents of their parent legal entity (German: Rechtsträger, lit. 'legal carrier'), a Land or the federation.

Foundations

Historical and constitutional foundations

Relation of law to administration

Administrative 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; the precise delimitations of the term, however, are in contention. Administrative law defines all aspects of public administration in the modern German state, as part of its commitment to the Rechtsstaat doctrine.

Legal definition

German legal scholarship does not have an agreed-upon definition for public administration. Since only administration is subject to administrative law, the distinction between administration and not administration can become relevant.

One definition for administration subsumes all state activity of a certain functional type into the term (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.

Delegated legislation

Rechtsverordnung

Public administration governed by private law

"Verwaltungsprivatrecht"

Constitutional law and administration

Federalism and local autonomy

There 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. 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. 84_I ).
The federation's ability to establish administrative authorities of the base and middle echelons is limited to specifically enumerated

Rechtsträger (Verwaltungsträger) Federal versus Land administrations

Importance for administrative organization and personnel

GG art. 33_{IV, V}

Administrative law as a cohesive body of law and academic subject

Expansion of administration and administrative law

• 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)

Sources of administrative law and legislative history

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).

Theoretical types of provisions of administrative law

Legal-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. 2_I ) 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

General administrative law

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

Central principles of lawfulness and justice for administrative action

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 art. 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

The administrative public authority (VwVfG § 1)

Including deputized private actors

Legal forms of administrative action (VwVfG §§ 35, 56 inter alia)

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.

Its unique legal effect is that an ordinance voidable through the legal recourse of affected parties may become non-voidable if not properly challenged within the time limit (ordinarily, one month after sufficient notice has been given).

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 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.

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.

Addressee

Allgemeinverfügung

Public-law agreement

Öffentlich-rechtlicher Vertrag

By-law

(Autonome) Satzung

Acts-in-fact

Before the 1960 enactment of the Code on Administrative Courts (VwGO), the judicial revisibility of informal real-world acts by administrative authorities – such as the police beating a protestor with a baton – was very limited. Courts in the early decades of the Federal Republic often extended judicial review by construing any act-in-fact as being implicitly accompanied by an administrative ordinance ordering the addressee to willingly suffer it (Duldungsanordnung).

Schlichtes Verwaltungshandeln Art. 107 of the 1919 Weimar Constitution Persistence of this mindset for at le

Legal force and lawfulness

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

Retraction and revocation of an administrative ordinance

Rücknahme/Widerruf

Special administrative law

Explanation of the entrenched material fields of administrative law that do not really exist in Anglosphere, which did not formally legitimize and constitutionalize/subject to material legal principles the growth of administration; unlike Napoleon-influenced areas:

'Police' (being the activity of preventing and ceasing injuries to legal rights/legal goods) used to be considered a purpose (German: Staatszweck) and an inherent power of the state, just nother form of sovereignty or authority over its citizens; and exercises of the police power were not seen as legal matters in and of themselves. 'Police' used to be synonymous with 'administration' as a function of the state; by nature, an administrative entity, created in whatever manner was traditionally/constitutionally prescribed, would have inherent power to take all necessary and proper measures (cf. Allgemeines Landrecht für die preußischen Staaten, Title 17, Part II, § 10), including giving orders, without it being understood to be a 'legal' relationship (though alternate standards of justice might apply, e.g. orientation toward the common good, and perhaps non-interference with acquired rights and privileges).

In time, the state's power of legislation became not only about reshaping the body of traditional civil laws (customary law or Roman law), but also a tool to limit the police power (administrative power) and other powers of the state (e.g. spending power, power of excise) – cf. the 19th-century struggle in Germany between the territorial sovereigns of the German states' claims, raised in the 17th century, to absolute authority of every type (plenary power, plenipotency), and the economically upsurgent (but non-noble and therefore not integrated into the state/monarchic power structure) bourgeois class.

Even further along, in Germany, law in the form of positive legislation or recognized customary laws (German: materielle Gesetze of different sorts), became a requisite for the exercise of the other inherent sovereign powers of the state wherever it interfered with the two very broad categories of citizens' liberty or property. By the time of the adoption of the present constitution, the legal order (sum of laws) became the basis and authorization for any other exercise of power by the state, and all enforcible relationships, as between private persons, or between the state and private persons, or later, between parts of the state. The separation of powers doctrine shifted from an institutional separation of coördinate powers directly derived from the state's (general or enumerated) natural right/authority to command its citizens' obedience to a functional hierarchy between types of power, with the definitional supremacy of law and of the power to legislate becoming the fount of all other powers.

Cf. Heyde, W.G. (1837). Polizei-Strafgewalt in den Königlich Preußischen Staaten, oder auch Darstellung des Verhältnisses der Polizeigewalt zu der Justizgewalt, ... ein Handbuch für Polizei- und Justizbeamte [Penal Police Power in the Royal Prussian States; Or, Also, Illustration of the Relation of the Police Power to the Justiciary Power, ...: a Handbook for Police and Justice Officials Original location of publication: Magdeburg, Saxony-Anhalt
See also: Simon, Thomas (Oct 2019 edition). "Ius eminens (eminent domain)", in: Jaeger, Fr. (ed.). Encyclopedia of Early Modern History Online.

Nuisance abatement (policing) law

Relation 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.

Polizei 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)

Special nuisance abatement law

Gewerberecht
Versammlungsrecht
Bauordnungsrecht

Land use and town planning law

For broader coverage of this topic, see Land use and town planning in Germany
GG art. 28_{II sntc. 1} grants local self-administration authorities (municipalities – Gemeinden) the sole general right to devise land use plans (German: Planungshoheit, lit. 'planning prerogative'), within the latitudes established by law. These municipalties are permitted and obligated to draw up a plan if, and only if, "ordered/pre-arranged town planning development" (geordnete städtebauliche Entwicklung) requires it (BauGB § 1_{III sntc. 1}).

Spatial coordination law

Räumliche Gesamtplanung

Special town planning law

Construction Code Chapter Two (§§ 136–191 BauGB)

Local governance law

The vast majority of all land in Germany – and virtually all inhabited land – is under the jurisdiction of a local government entity (Kommune), constitutionally empowered to assign itself any tasks serving the public. The first instance of administrative action is, as a rule, supposed to be the local entity. Kommunalrecht is the field of administrative law that specifically empowers and restricts these local governments. They demand special legal rules because they are meant to serve a dual purpose as local residents' self-government and also as an organizationally independent part of the respective Land's administration.

The smallest complete unit of local governance is the municipality (German: Gemeinde, lit. 'parish'). Gemeinden can vary in size from a few hundred residents in rural areas to several million (in the case of the city-states of Berlin and Hamburg, where the Land acts as the local authority). More typically, these territorial entities range in population size from a few thousand to several hundred thousand.
Unless the municipality is considered large enough by itself under Land law to take on the role, there is another level of local governance between the Gemeinde and the Land government: the district (German: Landkreis).

Municipalities and districts are legally classed as "territorial personal legal entities" (German: Gebietskörperschaften).

Administrative organization and civil service law

For a long time, doctrine refused to accept that legal relationships could exist within the administration.

Supervision

Weisung Verwaltungsvorschrift

See also

• 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

Scholarly literature

Textbooks and article-by-article commentaries

• 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.
• Huber, Peter M. [in German]; Voßkuhle, Andreas, eds. (2024), Grundgesetz: Kommentar [Basic Law: Article-by-Article Commentary], vol. 1–3 (8th ed.), Munich: C.H. Beck, ISBN 978-3-406-79230-4, OCLC 1435156528
• 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.
• 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.
• 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.
• 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

Treatises

• 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.

Index of periodicals

• Entscheidungen des Bundesverwaltungsgerichts [Decisions of the Federal Court of Administration], edited by members of the court: 179 volumes (1955–present). Hürth: Wolters Kluwer (Carl Heymanns imprint). ISSN (print ed., 1991–present): 0013-9106. OCLC 645091255.

Further reading

• 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.

• Freund, Ernst (1928). Administrative Powers over Persons and Property: A Comparative Survey. The University of Chicago Press. OCLC 833228133.

• 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.