Discretion

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In jurisprudence there is talk of a margin of appreciation if the legislature grants the executive an independent freedom of choice as to whether an element of a legal norm is fulfilled. The executive is only entitled to discretion in exceptional cases. First of all, an indefinite legal term is required ; Examples of indefinite legal terms are the public interest or the common good . When applying such terms to specific cases, it can sometimes happen that the question of the existence of the constituent element can be assessed differently and both views appear justifiable. In these cases it is questionable whether a court can fully review whether the authority has made the correct decision or whether it should be given a certain margin of appreciation. If the latter is the case, the decision of the authorities would only be subject to judicial review to a limited extent. This is viewed critically with regard to the fundamental right to effective legal protection (Article 19 (4 ) of the Basic Law ).

There is scope for assessment only at the so-called factual level. The discretionary decision , which is to be distinguished from the scope of assessment and which is fundamentally permitted , on the other hand, relates to the legal consequences.

If laws are only subject to judicial review to a limited extent, one speaks of legislative prerogatives .

Dogmatic genesis

The doctrine of the scope for judgment is largely based on an article by the legal scholar Otto Bachof that appeared in the Juristen-Zeitung in 1955 . Here the author set himself the task of solving the problem of how indeterminate legal terms are to be treated in administrative courts in a different way than was customary up to then. Up until the early 1950s, it was generally assumed that when indefinite legal terms were subsumed, the administration was given discretion as to the facts. The doctrine of measuring the facts came under increasing criticism with the theory of the scope of assessment developed by Bachof in 1955 and was eventually supplanted by it.

Recognized case groups

Official discretion is recognized by the case law where special expertise is required, which a particularly knowledgeable and predestined decision-maker has with regard to the matter. This is especially the case with prognostic decisions, i.e. decisions that have to be based on complex evaluations and diagnoses, such as in accounting within the framework of sensible business judgment . Examination decisions and evaluations by commissions such as the former Federal Examination Board for Writings Harmful to Young Persons can also fall into this area.

Examination and examination-like decisions

The fact that there can be room for maneuver in examination decisions has been recognized by the highest court in case law since a landmark judgment by the Federal Administrative Court in 1959. The court justified its decision at the time by stating that exam situations could not be repeated and that the necessary comparison with the examinations of other candidates was lacking for subsequent judicial control in individual cases. The court therefore only checked whether procedural regulations had been complied with, the assumption was made that the facts were correct, general assessment criteria were observed and the auditors were not guided by extraneous considerations. Objections by the examinee that his decisions were correct or at least justifiable were not taken into account, regardless of whether these objections were factually correct.

The Federal Constitutional Court has handed down judgments basic severely restricted with two in 1991, this far-reaching assessment and authorization granted to the inspectors only with "a study specific reviews" a final decision. The exam-specific assessments include, for example, the external form of a written work as well as the assessment of its linguistic and stylistic qualities. On the other hand, whether the examinee has argued in a justifiable manner or has reached justifiable results and the examiner wrongly assessed this as incorrect can be fully verified by a court.

The same principles also apply to examination-like decisions. This includes, for example, the assessment of the equivalence of the level of training in accordance with Section 3 (2) No. 1 of the Federal Doctors' Ordinance (BÄO).

Official decisions

In the case of civil servant law decisions, comparable standards apply to the restriction of judicial reviewability as in the case of examination decisions. This is the case, among other things, with rulings on the transfer and promotion of civil servants. The justification for the margin of appreciation is that such administrative decisions are usually based on long-term personal contact between the appraising superior and the civil servant to be appraised and are therefore highly personal and unjustifiable.

Decisions of independent expert bodies

Independent and expert committees continue to have a margin of appreciation when making decisions. A case by the Federal Administrative Court, which dealt with the indexing of writings harmful to minors, has received considerable attention in the literature. The Federal Testing Office for Writings Harmful to Young People decided that two issues of a magazine should be included in the indexing list. In 1972, the Federal Administrative Court granted the inspection body a margin of discretion on the grounds that it was a multi-person body formed according to special principles. Section 9 (1) of the GjS shows that the composition of the ruling body combines specialist knowledge and elements of social representation. Their opinion forming is unacceptable. For this reason it is contradictory if the administrative courts were empowered to substitute their decision instead of the decision of the reviewing body. According to the case law of the Federal Administrative Court of 2019, the authority, now designated as the Federal Inspectorate for Media Harmful to Young People, no longer has any discretion.

Forecast and risk decisions

Another group of cases concerns prognosis and risk decisions. Administrative authorities often have to make prognoses, for example in planning, environmental and economic administration law. Often a probability judgment has to be made ex ante according to recognized empirical principles, even if it is unclear which direction and which outcome the case to be assessed will take. This fact presents the case law with extraordinary difficulties in controlling such official forecasts. For this reason, the administration is given a margin of appreciation in this regard. However, a prognostic application of a legal norm alone is not enough. Rather, there must be additional positive criteria. As an example, a case decided by the Federal Administrative Court's legal challenge to name against the partial approval to build a nuclear power plant. With regard to the question of whether the necessary precautions against damage caused by the construction of a nuclear facility (Section 7 (2) No. 3 AtG), the court granted the licensing authority a margin of appreciation in this case.

Administrative decisions

There is also scope for discretion in decisions of an administrative-political nature. An example of this is the decision of a Federal Minister of Defense on the approval of military flights below the minimum safety height stipulated in the air traffic regulations. In the case, the court only examined whether the minister assumed the facts were correct, whether he recognized the framework determined by Section 30 (1) sentence 3 LuftVG and whether he was guided by appropriate considerations. Because in this case the minister acts within the framework of Article 87.1 sentence 1 GG largely according to political considerations and on his own responsibility.

literature

  • Otto Bachof : Scope of judgment, discretion and indefinite legal concept in administrative law . In: JZ 1955, pp. 97-102.
  • Gerhard Czermak : Administrative judicial review of the indefinite legal terms . In: NJW 1961, pp. 1905-1907.
  • Hans-Uwe Erichsen : Indefinite legal term and scope for judgment . In: VerwArch Volume 63 (1972), pp. 337-344.
  • Matthias Herdegen : Scope and discretion in a structural comparison . In. JZ 1991, pp. 747-751.
  • Roman Herzog : Constitution and administrative courts - back to more control? In: NJW 1992, pp. 2601-2605.
  • Hugo Kellner: The so-called margin of appreciation in administrative court practice . In: NJW 1966, pp. 857-863.
  • Albert von Mutius : Indefinite legal term and discretion in administrative law . In JURA 1987, pp. 92-101.
  • Friedrich Schoch : The indefinite legal term in administrative law . In: JURA 2004, pp. 612–618.
  • Hellmuth Schulze-Fielitz: New criteria for the density of administrative controls when using indefinite legal terms . In: JZ 1993, pp. 773-781.

Web links

Individual evidence

  1. ↑ Otto Bachof: Scope of judgment, discretion and indefinite legal concept in administrative law . In: JZ 1955, pp. 97-102
  2. ↑ See BVerwGE Volume 4, pp. 89ff.
  3. ↑ See LVG Minden, DÖV 1952, p. 117ff.
  4. ↑ BVerwGE Volume 8, p. 272ff.
  5. ↑ BVerfGE Volume 84, 34ff.
  6. ↑ BVerfGE Volume 84, 59ff.
  7. ^ Steffen Detterbeck: General administrative law with administrative procedural law, 10th edition 2012, § 8, Rn 367–368.
  8. ↑ OVG Münster, DÖV 1991, 655f.
  9. ↑ BVerwGE Volume 80, p. 224ff; Volume 103, p. 4ff.
  10. ↑ Eyermann, § 114, Rn. 69.
  11. ↑ BVerwGE NJW 1972, 596ff.
  12. ^ Felix Hilgert: Bushido album rightly indexed. In: Legal Tribune Online. Wolters Kluwer Deutschland GmbH, November 6, 2019, accessed on January 13, 2020 .
  13. ↑ Friauf / Höfling-Ibler, Article 19, Paragraph 4, Rn 277.
  14. ↑ BVerfGE Volume 88, pp. 40ff.
  15. ↑ Fehling / Kastner-Schwarz, § 114 VwGO, Rn 57f.
  16. ↑ BVerwGE Volume 72, p. 300ff.
  17. ↑ BVerwG NJW 1995, 1690ff.