Repeal (administrative act)

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The suspension referred to in German administrative law , the possibility of administrative acts by existing power to eliminate again. This right follows from the principle of the legality of the administration anchored in Article 20.3 of the Basic Law , according to which all state organs, including the executive , are bound by law and order.

Insofar as there are no special regulations in special laws for the repeal, there are various possibilities in the Administrative Procedure Act to carry out the repeal. The authority can ex officio withdraw or revoke administrative acts . It can also decide on the cancellation or amendment at the request of the person concerned.

Ex officio repeal

The withdrawal of an administrative act that was illegal when it was issued, for example through bribery , is based on § 48 VwVfG . Section 49 VwVfG applies to the revocation of an administrative act that was lawful when it was issued, which the authorities reserved the right to revoke from the outset or which has subsequently become illegal due to non-compliance with a condition . Based on the idea of ​​protecting legitimate expectations , these options are tied to different requirements.

Basically one can say that an illegal administrative act can be withdrawn with effect for the past as well as for the future. This leeway is limited only in the event that the administrative act provided a cash or non-cash benefit and the recipient's trust in the existence of the administrative act is worthy of protection. However, the authority can only get rid of the illegal administrative act for a period of one year. This period begins to run from the point at which the authority becomes aware of the facts that justify the withdrawal. However, the case law generally assumes that the authority must have full knowledge of the facts, which in some cases significantly delays the start of the period.

In relation to the illegal administrative act, the (originally) lawful administrative act can only be revoked for the future; unless he grants a one-off or ongoing cash benefit or a divisible benefit in kind to fulfill a specific purpose, d. H. a subsidy ( Section 49 (3) VwVfG).

Cancellation upon request

Outside of an appeal procedure , the authority can take up a completed administrative procedure under the conditions of § 51 VwVfG at the request of the person concerned and cancel or change the administrative act ( reopening the procedure ). This applies in particular if certain circumstances subsequently arise which would have justified a more favorable decision for the person concerned if the relevant administrative act had been adopted. However, through no gross negligence, the person concerned must have been unable to assert these circumstances at an earlier point in time, for example before the expiry of the objection period. The authority can either make a new decision on the matter ( second decision ) or reject it and adhere to the regulation in the first decision ( repeated decision ).

See also

Individual evidence

  1. ^ Hinnerk Wissmann: General Clauses. Administrative powers between legality and open norms. Mohr Siebeck, 2008 ISBN 978-3-16-149555-7
  2. ↑ Günter Haurand: Diagrams and examination schemes for the cancellation of administrative acts according to administrative procedural law ( Memento of August 15, 2017 in the Internet Archive ) DVP 2014, pp. 179–182
  3. ↑ Hartmut Maurer: General administrative law. 18th edition. Munich 2011, § 11
  4. ↑ BVerwG 7 C 3.08 Judgment of December 11, 2008 on the distinction between repeated rulings and second rulings