Instruction (Germany)

In organizations ( companies and public administration ), the right to issue instructions or to issue orders is the right to dictate to other bodies , authorities or legal entities which actions are to be taken and which are to be omitted .

General

A right to give instructions results from a legal or contractual superordinate and subordinate relationship, according to which the instructing or instructing person may give the recipient of instructions clear and legally compliant instructions. The authority of the employer has a right to issue known. Within a group , the parent company has the right to issue orders to its subsidiaries under stock corporation law . The public administration is empowered by public law to issue instructions in the context of administrative acts or notices . Each superordinate administrative body is authorized to issue instructions to the subordinate administrative body. Instructions are vertical communication on the designated channels , which can be made orally or in writing. Not all employment relationships are subject to the authority to issue instructions. Freelance journalists and cameramen are subject to e.g. B. not the authority to issue instructions, otherwise they are not allowed to work as a freelancer.

species

There are labor law, group law, administrative law and military authority to issue orders:

• Right of direction : A distinction is made between technical and disciplinary authority to issue instructions :
  • The technical authority to issue instructions is the right to issue the instructions necessary to fulfill the task . This includes technical or economic expertise , experience and control competence . It is the line manager accepted.
  • Disciplinary authority to issue directives is the right to take personnel policy measures towards other bodies. This includes staff appraisals , approval of vacation requests or sanctioning of employee behavior . It is reserved for the disciplinary superior.
• Group law : the right to issue instructions to the management board of the dependent company ( Section 308 (1 ) AktG ) is only possible if the controlling company has concluded a domination agreement . An instruction is every expression of will by the ruling company, regardless of its external appearance or designation. The decisive factor is whether the controlling company assumes that the expression of will will be followed by the controlled company. The controlling company exercises its right to issue instructions according to Section 78 AktG ( stock corporation ), Section 37 GmbHG ( GmbH ), Section 161 (2) and Section 125 HGB ( KG ) and Section 709 , Section 714 BGB ( GbR ) through its legal representatives .
• Public administration :
  • In the act of sovereignty , the state decides from above ( sovereign ), state and citizens are in a super-subordinate relationship (subordination relationship) to one another. From this position, the state can issue orders and instructions within the framework of laws , administrative acts , notices or judicial decisions .
  • The federal government's right to issue instructions results from Article 85 of the Basic Law ( order administration and federal administration ). According to this, the state authorities are subject to the instructions of the competent highest federal authorities . Unless the federal government deems it urgent, the instructions are to be addressed to the highest state authorities. The highest state authorities must ensure that the instructions are implemented.
  • In intervention administration in particular , the citizen is given an act , toleration or omission and thus his general freedom of action is interfered with. Here the state issues orders and enforces them. Can trade government not only government agencies but also organs of municipalities and administrative support of functional self-government .
  • Special rights of instruction exist in the event of an internal emergency , in the event of a defense and in the event of natural disasters .
• Military :
  • In the BundeswehrThe following applies: “An instruction contains an order. It often only indicates the overall intention of the superior, the objective in general and is usually valid for a longer period of time. It allows the recipient extensive freedom of action in the implementation and in the choice of the means to be used. The issuance of instructions is generally reserved for the supreme and senior management. ” BMVg instructions are also referred to as decrees .
  • From the transfer to differ are official instructions (often mistakenly referred to as transfer): "Are in the military soldiers placed under an official / employee or civil servant / employee a soldier, so the manager does not give orders but official instructions. The same applies to integrated subordination ... The duty to follow these orders arises for soldiers from their duty to serve faithfully ( § 7 SG ), for civil servants from § 61 and § 62 Federal Civil Service Act and for employees from the service contract. "

Content and scope

The content of instructions must be clear and legally compliant. It is unambiguous if instructions give the instruction recipient clear, non-interpretable instructions for action, whereby only the permitted or non-permitted activities may be listed. The instruction itself and its consequences must be consistent with the applicable legal system . The limits of the instruction are generally formed by the principle of good faith and the ban on harassment , especially the legality of its issuing and its content.

consequences

Numerous laws also show the consequences of not following clear instructions. Failure to comply with an instruction from the employer represents a refusal to work due to the existing follow-up obligation and - after a previous unsuccessful warning - can be the reason for dismissal ( termination of the employment relationship ). The civil service law sees failure to comply with an instruction as an administrative offense . According to Section 308 (2) AktG, the management board of the dependent company is obliged to follow instructions given to it. If this does not happen, the management board of the controlling company can sue the dependent company. Non-compliance is even a legal obligation in those cases if the instructions obviously do not serve the interests of the group and are disadvantageous.

Individual evidence

1. ↑ Rolf Bühner: Betriebswirtschaftliche Organizationslehre , 2004, p. 65.
2. ↑ Jens Kuhlmann / Erik Anis: Corporate and Transformation Law , 2010, Rn. 594.
3. ^ Sven Timmerbeil: Outline of corporate and transformation law , 2012, p. 19.
4. ↑ BVerfG, decision of December 5, 2002, Az. 2 BvL 5/98, full text = BVerfGE 107, 59 .
5. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1558.
6. ↑ Central Service Regulations (ZDv) 1/50, Basic Terms for Military Organization - Subordination - Official Instructions , No. 305
7. ↑ Central Service Regulations (ZDv) 1/50, Basic Terms for Military Organization - Subordination - Official Instructions , No. 311

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