Edition (administrative law)
The support is in the dogma of the German administrative law an independent secondary determination to an administrative (VA), with a the recipient of the VA Tun , toleration or omission is prescribed. The requirement is legally defined in Section 36 (2) No. 4 VwVfG .
Edition
The condition can only be linked to a beneficiary VA, since a condition is a burden and it makes no sense to add a further burden to a non-beneficiary VA in the form of an ancillary provision.
The legal nature of the edition was disputed for a long time. In part, it was viewed as an independent VA. However, this is not to be agreed, as the condition contains an independent regulation, but according to § 36. 2 VwVfG with the main VA connected is. It is therefore accessory.
Example: A is granted a building permit (beneficiary main VA) with the condition to build two additional parking spaces (accessory charge).
Requirements in the law of assembly
A gem. Section 15 (1 ) of the General Assembly Act (VersG) is not a secondary provision within the meaning of Section 36 (2) no. 4 VwVfG. Because § 14 VersG only standardizes an obligation to notify, not an authorization requirement for assemblies. There is therefore no main VA to which the “condition” could be attached. Orders according to Section 15 (1) VersG are therefore separate administrative acts.
Modifying edition
A modifying or amendment requirement exists if the requested administrative act is changed by the requirement in such a way that it no longer corresponds to the originally intended VA.
- Example: A applies for a building permit for a three-story house, but only two floors are approved.
In terms of content, the modifying condition does not constitute an ancillary provision to the VA originally applied for, but the rejection of the three-story building applied for. Because the essence of an ancillary provision is that it stands next to the main provision and does not change the actual subject of the approval.
Subject to conditions
The proviso is aimed at changing the VA after it has been issued ( Section 36 (2) No. 5 VwVfG). The authority reserves the right to add a condition to the main VA at a later point in time, which prevents the creation of trust worthy of protection.
Demarcation from the condition
A provision according to which the occurrence or the elimination of a benefit or a charge depends on the uncertain occurrence of a future event is a condition ( Section 36 (2) No. 2 VwVfG). According to Friedrich Carl von Savigny , the condition suspends but does not force, while the condition forces but does not suspend.
If the effectiveness of the main provision is then to depend on the fulfillment of the secondary provision, there is a condition. The effectiveness of the main VA is postponed (suspended) until the condition occurs or ceases to exist when the condition occurs. The (non-) fulfillment of the condition as an independent regulation does not affect the effectiveness of the main VA. Unlike the occurrence of the condition, the fulfillment of the condition can be enforced by way of administrative enforcement.
In case of doubt, a condition can be assumed as the less restrictive means.
Legal protection
According to recent case law of the Federal Administrative Court, there is an action for annulment against onerous ancillary provisions of an administrative act . Whether this can lead to the isolated annulment of the ancillary provision, on the other hand, is a question of the justification and not of the admissibility of the request for avoidance, unless an isolated annulability is evidently ruled out from the outset. This view is supported by the fact that Section 113 (1) sentence 1 VwGO provides for the possibility of partial contestation. According to this, a VA can be revoked if it is unlawful and the plaintiff's rights are thereby violated.
The action for annulment or continuation of the declaratory judgment according to Section 113, Paragraph 1, Clause 4 VwGO is also permissible against requirements under the law of assembly.
In the case of modifying conditions, on the other hand, an obligation action for waiver of the VA that was originally applied for is permissible.
Individual evidence
- ↑ § 10: Ancillary provisions according to Art. 36 BayVwVfG VII. Edition. University of Würzburg, accessed on May 1, 2019
- ↑ OVG Koblenz, judgment of 10 February 2010 - 7 A 11095 / 09.OVG
- ↑ BVerfG, NVwZ 2007, 1183
- ↑ Juracademy: Ancillary provisions for the administrative act , accessed on January 1, 2020.
- ↑ Supplementary, amendment edition, partial rejection of the University of Trier, accessed on May 1, 2019
- ↑ cf. BVerwG, judgment of February 17, 1984 - 4 C 70.80 para. 14th
- ↑ cf. to other views § 10: Ancillary provisions according to Art. 36 BayVwVfG X. Legal protection. University of Würzburg, accessed on May 1, 2019
- ↑ BVerwG, judgment of November 22, 2000 - 11 C 2/00 LS 1
- ↑ so also BVerwG, judgment of February 17, 1984 - 4 C 70.80 official LS
- ↑ cf. For example, OVG Koblenz, judgment of 10 February 2010 - 7 A 11095 / 09.OVG
