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The discretion grants a decision-maker a certain freedom in the application of the law. If a legal norm contains a discretion on the legal side , the authority does not make a binding decision , but can choose from several possible decisions. Indeterminate legal concepts are found, however, in the event of certain legal regulations. The legally relevant content must be determined through interpretation before the law is applied . If a provision contains an indefinite legal term and also opens up a margin of discretion, it is referred to as a coupling provision .

By far the greatest importance is discretion in administrative law . However, legal provisions with discretion also exist in other areas of substantive law and the investigation procedure .

Discretion in administrative law

Discretion is of great importance in administrative law. Discretion is one aspect of the legal consequences of an authority decision, i.e. it concerns the question of whether an authority must or can make a certain decision if all legal requirements are met . An authority has discretion if it has “scope for its own decision” despite the existence of all the factual requirements of a legal norm . Structurally, discretion is the opposite of a bound decision , in which a very specific legal consequence is ordered and the authority has no room for maneuver.

Constitutional admissibility

Insofar as the legislature waives final regulations, it transfers responsibility for the correctness of the action to the authority and expects it to make the decision that best takes into account the particular circumstances of the individual case. It is generally recognized that the legal granting of discretion is constitutionally permissible. For example, the Federal Administrative Court declared in a judgment that the administrative authorities' freedom of discretion is “a legitimate part of the legal and constitutional order”. The freedom of discretion therefore has a place in the rule of law because it is subject to restrictions, namely those that allow the administration to be guided by the meaning of the law.


Whether a legal norm provides for a binding decision or grants the authority a margin of discretion can usually be determined from the wording in the law itself. In some cases, the law expressly allows "discretion". On the other hand, open formulations such as “generally”, “may”, “may”, “is authorized” or “is authorized” are more common.

In the case of bound decisions, on the other hand, formulations such as “is”, “has”, “must”, “... it is established that ...”, “may not” or simply the indicative are used (eg: “If the probationary period is shortened, it is sufficient an assessment. "). However, this interpretation is not mandatory in every case.

Demarcation from the margin of appreciation

The so-called discretionary scope (also misleadingly called factual discretion) does not represent any form of discretion . In contrast to discretion, the legal consequences side of the standard does not allow any leeway here. Rather, the legislature has kept certain facts vague and broad, so that the user of the law has a margin of appreciation when subsuming a specific fact under the facts of the respective norm. The filling of the indefinite legal terms can in principle be fully checked in court, whereas the exercise of discretion can only be checked in court in the area of ​​discretionary errors.


Judging by the objective of the discretion, a distinction must be made between the discretionary measure and the discretionary measure.

Resolution fairs

An authority has a power of resolution if it can decide for itself whether it will act at all - if the conditions are met. There is primarily a discretionary power in law to avert danger , i.e. in areas where the principle of opportunity applies. An authority can, however, be bound by decisions already made in the same circumstances in its discretion (up to the so-called reduction of discretion to zero ).

There is also a difference between the concept of free judgment and that of dutiful judgment. The first practically does not appear in German administrative law. In the case of “intended discretion”, the law usually prescribes a certain official response and only grants discretion in atypical cases. In the law, this form of discretion is often identified by the use of the word “shall”.

An example of a mass of resolution is that the police are not required to tow a car parked in the no- parking zone.

Selection fairs

If the authority has a selection fair, it can choose in which form and against whom (so-called disruptor or responsible party selection ) to proceed - as long as the external limits of discretion are observed; whether it is actually active within the framework of the legally opened alternative courses of action is a matter of discretion.

Discretionary limits

Limits for the exercise of discretion arise for federal authorities from Section 40 VwVfG and Section 39 SGB ​​I , for federal state authorities from the identical or similar provisions of the Administrative Procedure Act of the respective state. Accordingly, as soon as an authority is entitled to a discretion, it must exercise this dutifully and comply with the legal limits of the discretion, which usually result from the standard itself ("..., if ..."). If this is not the case, there is an error of judgment. As a rule, a distinction is made between the following discretionary errors according to what is known as the doctrine of discretionary errors, although the terminology (technical language) is not uniform:

Loss of discretion

Loss of discretion (also referred to as non-use of discretion or undershooting ) occurs when the authority does not exercise the discretion it is entitled to, for example because it does not recognize that it is entitled to any discretion at all or because it deliberately fails to do so. However, it is crucial that the authority makes it clear to the addressee in the discretionary decision that it has recognized its discretion, i.e. has not assumed a bound decision. Even if the civil servant has recognized his discretion, there is an error of judgment if this cannot be seen from the administrative act itself.

Misuse of discretion

Misuse of discretion (or abuse of discretion ) means that the authority does not correctly understand the purpose of the law and bases its judgment on incorrect considerations. In other words: something was stopped at the discretion that was not allowed to be stopped at all. This group of cases, which is the most extensive in practice, includes the following subcases of misuse of discretion:

Purposeful or irrelevant consideration
The concerns or considerations on which the decision was based were not allowed to be discontinued at all, as they have no relation to the discretionary facts or are otherwise unsuitable in the specific case (e.g. withdrawal of an administrative act because the person concerned is viewed and / or economically important ).
Other logical errors: In the process of judgment, the laws of thought of logic and experience are violated (other structural deficiencies in the considerations).
Discretionary weighting
The importance (weighting) of the public and private interests concerned, which result from the ascertained facts, is misunderstood in the context of subsumption by either a) an overestimation or b) an underestimation or a complete failure to consider the facts at the level of the weighing of interests ( ie no or insufficient consideration of essential and known circumstances for the weighting of interests).
Disproportionality of discretion
The balance between the public and private concerns concerned is made in a way that is disproportionate to the objective weighting of individual concerns (that is, the weighting is correct in its approach, but the priority of the concerns is incorrectly related to one another or misunderstood ).
Principle of equal treatment
Violation of the principle of equal treatment of Art. 3 Paragraph 1 of the Basic Law (in particular violations of the self-commitment of the administration as a result of discretionary administrative regulations or in the case of previous constant practice).
Excess of discretion
is to be assumed if the authority does not adhere to the framework specified by law as the ultimate decision-making limit, d. H. a legal consequence is chosen that is generally or in individual cases inadmissible. This is the case when an administrative act receives an ancillary provision that is not provided for in the law.

Primacy of law

Under the validity of the Basic Law, there is no “free”, but only bound discretion, since the authority, as part of state power, is bound by fundamental rights ( Article 1, Paragraph 3 of the Basic Law) and by higher-ranking law. Official actions must never violate the Basic Law, laws or regulations. Insofar as the primacy of the law applies, these are the only limits to the authority's discretion. The official intervention is then independent of special authorizations - an authority can act if it is responsible for the area concerned.

Reservation of the law

Narrower limits arise as soon as the reservation of the law applies. This is the case in particular with encroachments on fundamental rights, files relevant to fundamental rights and with “otherwise essential”. If the reservation of the law applies, the authority may only take action if it has a legal basis and the requirements of this standard are met. It is also possible that the authority relies on an ordinance for an act, provided that the ordinance itself is lawful.

The authorization basis can then dictate a decision to the authority so that it has no discretion. It can also open up discretion in atypical cases (for example with the formulation “should”), or leave the action entirely to the decision of an authority. It should be noted, however, that the discretion granted in this way can also be restricted again in individual cases by the fundamental rights concerned ( constitutional interpretation ).

Consequences of an error of judgment

If there is an error of judgment, the decision of the authority is fundamentally unlawful. Exceptionally, according to the legal concept of Section 46 VwVfG, the error of judgment may be irrelevant if the result is within the margin of discretion and it is objectively clear that the authority would have made the same decision without the error of judgment. The authority is responsible for proving this, but it is rarely able to do this in practice. If the official decision is incorrectly judged and the error is not negligible, the administrative act, as long as it has not yet become final , can be challenged with a legal remedy , in practice regularly with a lawsuit .

  • If an onerous administrative act is "incorrectly judged", it must be canceled.
  • If a favoring administrative act has been rejected “incorrectly”, it is also unlawful and therefore revoked. However, this does not automatically mean that the person concerned is now entitled to the (previously denied) service: as a rule, he only has a right to a “non-discretionary” new decision. In terms of content, it can still lead to the coveted service being rejected as long as this decision can be based on other (non-discretionary) reasons. Something else only applies in the event that the discretion is reduced to zero.

The administrative authority can also supplement its discretionary considerations with regard to the administrative act in administrative court proceedings by adding reasons ( Section 114 sentence 2 VwGO).

Examples of errors of judgment

Often discretion also plays a role in connection with fines .

  • Discretionary non-use or underflow:
No amount is applied or it is shown under fixed values; no use is made of an “optional clause” in that no notification is issued.
  • Misuse of discretion:
Duties are imposed on the citizen that are not relevant or that do not serve their purpose. The discretionary scope is not used, although the authority is aware of recognizable circumstances (intended discretion); or the official rejection of an application occurs (largely) without comprehensible justification.
  • Exceeding of discretion:
The fine is set too high; the authority exceeds the prescribed legal framework.

special cases

Reduction of discretion to zero

In certain situations, the discretion is so narrow that only one decision is correct (free of legal errors). Then one speaks of reduction of discretion to zero (or reduction of discretion to zero ).

The reduction in discretion to zero results in a binding decision .

In the case of a binding decision, the administration must bring about the legal consequences provided for in the law if all the prerequisites are met. So you have no discretion. A reduction in discretion to zero is given if there are special circumstances that only make a single decision-making option appear legitimate, if the administration binds itself ( self- binding of the administration ), for example through uniform administration within the meaning of Art. 3 I GG; whereby it is fundamentally obliged to exercise discretion in the same way in future, similar cases; or if the trust of the person concerned in a certain decision is particularly worthy of protection, for example through a previously issued official commitment that deviates from the administrative act or its omission .

If there is a reduction of the discretion to zero, an administrative court according to Section 113 (5) sentence 1 VwGO procedurally the obligation of the authority to carry out the requested official act, to implement it by hand (so-called ruling maturity ) and to issue a commitment judgment.

The reduction in discretion to zero is mostly only available in exceptional cases. Occasionally, however, it is also the rule. For example, the “can” in Section 16 (3) sentence 1 of the HwO is understood to mean that if the factual prerequisites are met, there is usually a reduction in discretion to zero, which is justified for the purpose of the authorization. Unless there are special circumstances, the operating ban is then the only appropriate discretionary decision.

Intentional discretion

The so-called intended discretion is a special case . The legal figure of the intended discretion goes back to the case law of the Federal Administrative Court .

A classic example of a regulation with intentional discretion is Section 15 (2) sentence 1 GewO, according to which the competent authority can close a business if it is run without the prescribed commercial license. The standard is interpreted in such a way that the company closure is the (rule) decision prescribed by the legislature. Refraining from taking the measure is, according to this, the exception.

The legal figure of the intended discretion should not be confused with a “should” provision . In the case of a “should” provision, there is basically a bound decision, which, however, contains an opening for atypical cases.

Discretion in civil law

Usually, discretion refers to public law. The discretion is also found in civil law with completely different content and purpose. In civil law , one of several contracting parties may have discretion. There are constellations in which the contracting parties have not determined the subject matter of the contract from the outset, but have left the determination of the subject matter of the performance to one party. In these cases, the entitled party determines the subject of performance at its reasonable discretion ( Section 315 BGB ). It is imperative to note that this is a purely civil law interpretation or fairness regulation based on good faith and not a sovereign measure.

Discretion in criminal law

The public prosecutor's office decides whether to discontinue criminal proceedings for reasons of opportunity at its best discretion.

Discretion in tax law

The admissibility of the tax authorities' discretion is standardized in Section 5 of the Tax Code (AO). The regulation largely coincides with § 40 VwVfG. In tax law, discretionary provisions are relatively common. It is Z. B. for ancillary provisions in accordance with 120 AO, in the case of late payment acc. 152 AO, with the amendment standards acc. § 130 , § 131 AO, for examination orders acc. § 193 ff. AO, for all liability notices according to § 191 AO and relevant in enforcement proceedings. When reviewing the tax authority's discretion, the restrictions of § 102 Tax Court Regulations (FGO) apply in the tax court proceedings . This provision corresponds to Section 114 of the Administrative Court Code (VwGO). The finance court may because of Art. 20 Abs. 3 GG acc. § 102 FGO only review the authority's discretion, but do not exercise it yourself. The necessary consequence is the so-called decision ruling, according to which the administration must exercise its discretion again, taking into account the legal opinion of the court. A breakthrough is the group of cases where discretion is reduced to zero.

Discretion in tax assessment

The tax assessment is the basic model of the bound administration according to § 85 AO. That is the opposite of discretion. So anyone who justifies his objection to a tax assessment with a discretionary error by the tax office or the city tax office has made a systematic error: these administrations have no discretion in terms of tax assessments. § 5 AO. There can therefore be no error of judgment. This is repeated in the tax offsetting acc. § 226 AO, as it is not an administrative act and therefore no discretion can exist.

Discretion in liability notices

The number of errors of judgment in liability notices is high. It must be stated in the notice of liability that the authority recognized its discretion and exercised the selection process. If the notice of liability only states that the tax debtor has not paid the tax debt and the liability debtor must therefore be claimed, this is only the justification for a bound administrative act and does not reveal the discretionary decision.

Judicial discretion

The administration reserves the right to discretion if it is not a matter of bound administrative action. However, the courts also have a discretion to distinguish how they handle the proceedings. This is the judge's discretion as to which litigation support - and how - takes place and whether a decision is made by court order or after an oral hearing. These so-called procedural orders cannot be attacked in isolation.

Case studies

Loss of discretion

A wants to go on vacation and instructs C to continue running the business in his absence. When A is absent, a hygiene check is carried out by the competent authority. The inspector K determines that C is not operator A named in the license document. There is also no deputy permission from the authority in accordance with § 9 GastG NRW. According to Section 15 (3) No. 3 GastG NRW, the authority sees / believes that it is forced to withdraw A's permission to operate the restaurant, which reads: “You [permission] can be revoked if […] the trader has his business run without permission from a deputy. "

Since there are no discretionary considerations in the present case, even though the standard contains the signal word “can”, the authority incorrectly assumes that it would have to withdraw the license to operate a restaurant if the lack of authorization for C became known.

Undershooting of discretion

In this modification, too, the restaurant at A is operated by C without authorization to act as a representative. The competent authority recognizes that it has a discretion with regard to the revocation of the permit through § 15 Abs. 3 Nr. 3 GastG NRW. However, the responsible clerk S presumably ascertains within his deliberations that a subsequent application for deputy permission would violate the principle of equal treatment under Article 3 of the Basic Law and that, with regard to other restaurateurs, he would therefore have no choice but to revoke A's permission. S wrongly assumes that the subsequent application would be inadmissible.

Misuse of discretion

In this case it is the case that Chef A has taken the popular Pizza alla Chef from the menu and replaced it with Pizza alla Mama. The clerk S, who is responsible for granting the permit, is disappointed when he learns that this pizza is no longer available and withdraws A's permission to operate a restaurant in accordance with Section 15 (3) No. 1 GastG. The norm reads: "It [the permission] can be revoked if [...] unauthorized drinks or food are served." The clerk is of the opinion that the new Pizza alla Mama is an unapproved meal in the Within the meaning of this law. The assessment of discretion thus misses the legal purpose, which provides to protect the guest from potentially dangerous food, and not to take into account the personal preferences of administrative employees.

Excess of discretion

A was able to come to an agreement with clerk S and subsequently applied for the deputy permit for C in accordance with § 9 GastG. S requested a certificate of good conduct weeks ago, which was not submitted even after several deadlines were set and the deadline subsequently passed. So S revokes A's permission in accordance with Section 15 (3) No. 3 GastG. At the same time he arranges for the A's driver's license to be revoked. He believes that such an unreliable person should not participate in road traffic. With this measure, however, the S clearly exceeds the limits of its discretion, since the withdrawal of a driver's license is not intended as a legal consequence of § 15 GastG NRW.

Reduction of discretion to zero

A celebrates the appearance of his favorite soccer team once a week with a big and very loud party. The neighbors have already complained to the responsible authorities about this noise several times. Even after repeated requests to use the premises in accordance with the content of the operating permit, the complaints persist. When the neighbors are harassed by clearly drunk football madmen, the only thing left for the responsible clerk S is to withdraw A's permission. All other alternative courses of action would no longer comply with the principle of proportionality, since this condition violates the neighborhood's basic right to physical integrity. The discretion is thus reduced to zero due to the special constituent elements and constitutional law.

If S is now also a fan of the same soccer team and still does not withdraw A's operating license, he is committing a judgment error.

See also


  • Robert Alexy : Error of judgment. In: Legal journal . 1986, pp. 701-716.
  • Udo Di Fabio : The reduction of discretion. Case groups, system considerations and test program. In: Verwaltungsarchiv (journal), Vol. 86, 1995, pp. 214-234.
  • Thomas Groß: The German doctrine of discretion in the European context. In: Journal for Public Law (ZÖR), Vol. 61, 2006, ISSN  0948-4396 , pp. 625–641.
  • Ulla Held-Daab : Free discretion. Dissertation. Duncker and Humblot, Berlin 1996, ISBN 3-428-08643-0 .
  • Harald Hofmann, Jürgen Gerke: General administrative law with notification technology, administrative enforcement and legal protection. 10th edition, Kohlhammer, Stuttgart 2010, ISBN 978-3-555-01510-1 .
  • Christian Hufen: discretion and indefinite legal concept. ZJS 2010, 603 ( PDF ; 82 kB)

Web links

Wiktionary: discretion  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ Friedrich Schoch : The administrative court discretion. In: JURA 2004, pp. 612–618 (here p. 613).
  2. Raimund Brühl: The treatment of the administrative discretion in notification and judgment. In: JuS 1995, pp. 249-254.
  3. ^ OVG Münster, MDR 1982, p. 787 f.
  4. BVerwGE 11, 95.
  5. ^ A b Schwabe, Winfried / Finkel, Bastian: General administrative law and administrative procedural law , 9th edition. Cologne 2017, p. 272.
  6. BVerwGE 72, 1.
  7. ^ Steffen Detterbeck: General administrative law with administrative procedural law. 4th edition, Verlag CH Beck, Munich 2006, p. 111.
  8. a b c Jörn Ipsen : General administrative law . 10th edition. Munich 2017, p. 134
  9. a b BVerwG, NVwZ 1987, 132 (133); VGH Kassel, NVwZ 1991, 280 (281).
  10. ^ German administrative gazette . 1998, p. 146 .
  11. Hessischer Verwaltungsgerichtshof (VGH Kassel), February 20, 1996 - 14 TG 430/95 , trade archive 1996, p. 291.
  12. ^ Pump / Leibner: The discretion in tax law. StBp 2006, p. 37 ff.
  13. ^ Pump / Leibner: The discretion in tax law. StBp 2006, p. 37 ff.
  14. Nacke: Discretionary errors in liability notices against GmbH managing directors. GStB 2006, p. 371.