Fictitious administrative act

from Wikipedia, the free encyclopedia

The approval fiction is a legal figure in German administrative law . If the competent authority does not decide on an application for a license within a certain period, the license is deemed to have been granted. The fictional effect occurs after the deadline. As a result, the applicant is the owner of a fictitious or fictitious administrative act . In Section 42a of the Administrative Procedure Act (VwVfG), the legislator has legally defined this type of administrative act.

General

The fictitious approval serves to simplify and accelerate the procedure. With the created legal figure, the legislature has implemented the administrative procedural provisions of the European Services Directive (DLRL), in particular Art. 13 Para. 4 DLRL.

The purpose of the fictitious approval is to help the applicant to get over procedural obstacles beyond his sphere of influence that result from delayed processing of his application by the approval authority. On the other hand, it does not make sense of fiction to bring about other simplifications of procedures or to lower material approval requirements.

However, Section 42a VwVfG itself does not regulate which types of permits are deemed to be granted after the deadline has expired without an official decision, but refers in this respect to the specialist laws. These include, for example:

Numerous state building regulations also provide for a fictitious permit for building permits in a simplified procedure.

If there are no special provisions on the fictitious permit, the provisions of the general administrative procedural law must be used. An analogous application of the fictional effect to cases that are not directly legally recorded is ruled out, for example in pollution control law .

Requirements of § 42 a VwVfG - content

First of all, a person must strive for behavior that is subject to the authorization requirement of the authority.

In order for the fictitious approval to apply, it must be ordered by legal regulation in the form of a specialized law, a statute or a statutory ordinance.

An application is necessary. The application must be sufficiently specific. This means that the applicant's intention must be recognizable to the authority.

The authority must also have the complete documentation to be submitted by the applicant. This enables the authority to decide on the licensing requirements. The decision period begins to run. This is usually three months, but it can be determined differently by legal regulation.

The authority is then obliged to decide on the application within the specified period and to issue an administrative act. However, if the deadline expires without an official decision, the fictitious approval applies. The law fabricates an administrative act. The applicant is presented as if the authority had given him a positive decision.

The authority can postpone the fictitious approval by issuing an interim decision before the deadline.

Legal nature of the fictitious permit and the legal consequences

The fictitious administrative act is - despite its name - not an administrative act within the meaning of § 35 VwVfG. On the one hand, the fictitious approval lacks the measure. The measure is any active action by the authority that has an explanatory content. However, the fictional effect only occurs in the event of inaction or failure of the authority within the period.

On the other hand, the requirement of the regulation is not fulfilled, since the rights of the person concerned are not justified directly and willingly by the authority. The authority does not necessarily have to know or approve of the fictional effect of their behavior.

However, the legislature can assess processes that lack elements of Section 35 VwVfG as administrative acts. In Section 42a (3) VwVfG, this indirectly names the approval fiction as an administrative act.

The fictitious approval is thus an administrative act by virtue of a legislative decision.

The provisions on the legal force of administrative acts and on the appeal procedure thus apply. In particular, the regulations on the nullity of administrative acts (Section 44 VwVfG), the withdrawal of unlawful administrative acts (Section 48 VwVfG), the revocation of lawful administrative acts (Section 49 VwVfG) and actions for annulment (Section 42 (1) VwGO) apply accordingly.

Effectiveness against addressees and third parties

The regulations on the legal force of administrative acts apply accordingly. This generally requires disclosure to the addressee of the bogus administrative act in order to be effective. This is not the case here. However, it is replaced by the expiry of the deadline or accordingly fabricated. Thus, the fictitious administrative act is effective and legally existent for the addressee. A materially illegal administrative act is also effective.

A distinction must be made between the group of third parties:

The fictitious administrative act is also effective against the third parties involved, who have been actively consulted by the authority in the actual administrative procedure. These are “involved”, so that a fictitious announcement has also taken place to this group of people.

Compared to the other third parties affected, who were not actively involved by the authority in the administrative procedure, the fictitious administrative act initially exists.

The differentiation has an impact on the course of the appeal periods.

Certificate of the fictitious approval

After the fictitious approval has commenced, the parties involved have the right to request a written certificate of the fictional effect being issued. The certificate is to be classified as a non-administrative act. It assumes a function of evidence for the holder of the bogus license; it documents the entry into fiction. The certificate is the point of contact with legal remedies in accordance with Section 37 (6) sentence 2 VwVfG. The certificate with attached information on legal remedies can be used to limit the deadlines for legal remedies for those affected by third parties.

Legal protection of third parties

The third parties concerned can attack the fictitious approval by objection and / or legal action if they assert a violation of their own subjective rights. An administrative act is contested through the action for avoidance in accordance with Section 42 (1) VwGO. It is irrelevant whether it is an administrative act according to the legal definition of § 35 sentence 1 VwVfG or an administrative act based on a legislative decision.

Demarcation

A distinction must be made between the fictitious administrative acts and the implied administrative acts . In contrast to the fictitious administrative act, an authority not only remains silent when issuing the implied administrative act, but takes a measure and declares its will. This declaration of intent is not made expressly - i.e. not in writing, electronically or orally - but “in another way” in accordance with Section 37 (2) sentence 1 VwVfG .

The expression fictitious administrative act is also used homonymously for situations in which the arrangement of coercive measures is legally given an administrative act quality. Such a fiction was already developed in the 19th century through judicial law and codified in Section 44 (1) sentence 2 of the Prussian Police Administration Act in 1931 . A similar regulation can be found, for example, in Section 18 (1) sentence 1 of the Administrative Enforcement Act . However, it is not the purpose of these provisions to link the silence of an authority to a specific legal consequence. Instead, the citizen should be given the same legal remedies that he or she would be entitled to if an administrative act were issued.

literature

  • Franz-Joseph Peine : General administrative law. CF Müller, Heidelberg 2006. Rn. 490 ff. ISBN 978-3-8114-8007-0
  • Johannes Caspar: The fictitious administrative act - To systematize a current administrative law institute. In: Archives of Public Law . Year 2000, p. 131 ff.
  • Martin Oldiges: The fictitious administrative act - comments also on § 15 para. 2 BImSchG. In: Environmental and Technology Law . Year 2000, p. 41 ff.
  • Stelkens, Paul / Bonk, Heinz Joachim / Sachs, Michael (eds.), Administrative Procedure Act - Commentary, 8th edition, Munich 2014
  • Kopp, Ferdinand O./Ramsauer, Ulrich (Ed.), Administrative Procedure Act - Commentary, 14th edition, Munich 2013
  • Weidemann, Holger: Trade Regulations and Permit Fiction, DVP 2012, p. 226
  • Detterbeck, Steffen, General Administrative Law, 11th edition, Munich 2013

Footnotes

  1. ↑ Stelkens, in: Stelkens / Bonk / Sachs, § 42 a, Rn. 6th
  2. ↑ cf. Art. 1 of the fourth law amending administrative procedural regulations (4th VwVfÄndG) of December 11, 2008, Federal Law Gazette I p. 2418
  3. ↑ Markus Krajewski : Specifications of the service directive for the licensing law , in: Hartmut Bauer , Christiane Büchner, Frauke Brosius-Gersdorf (ed.): The European service directive : Challenge for the municipalities . Universitätsverlag Potsdam 2010, pp. 37–63
  4. ↑ Henning Biermann: Procedural and Decision Deadlines - Useful Instruments to Accelerate Administrative Procedures or “Wrong Path of Fictions”? NordÖR 2009, pp. 377–384
  5. ↑ VG Sigmaringen, judgment of April 5, 2016 - 4 K 900/15 marginal no. 33; VG Karlsruhe, judgment of May 27, 2014 - 1 K 1747/12
  6. ↑ cf. Art. 1 of the law for the implementation of the Services Directive in trade law and in other legal provisions of July 17, 2009, Federal Law Gazette I p. 2091
  7. ↑ Weidemann, DVP 2012, 226 (227).
  8. ^ Jan Niklas Gestefeld: Permission requirement and duration of the procedure in pollution control law. Procedural deadlines and assessment times Hamburg, Univ.-Diss. 2016, pp. 56, 59
  9. ↑ Kopp / Ramsauer, § 42a, Rn. 10.
  10. ↑ Kopp / Ramsauer, § 42a, Rn. 11.
  11. ↑ Detterbeck, VwVfG, Rn. 433.
  12. ↑ Stelkens, in: Stelkens / Bonk / Sachs, § 42a, Rn. 3.
  13. ↑ Weidemann, DVP 2012, 226 (229).
  14. ↑ Stelkens, in: Stelkens / Bonk / Sachs, § 42a, Rn. 4th
  15. ↑ Weidemann, DVP 2012, 226 (229).
  16. ↑ Stelkens, in: Stelkens / Bonk / Sachs, § 42a, Rn. 56.
  17. ↑ Stelkens, in: Stelkens / Bonk / Sachs, § 42a, Rn. 57.
  18. ↑ Kopp / Ramsauer, § 42a, Rn. 30th
  19. ↑ Paul Stelkens, Heinz Joachim Bonk, Michael Sachs: Administrative Procedure Act. 6th edition 2001. Section 35 Rn. 49 ff.
  20. ↑ Rainer Pietzner : The immediate execution as a fictitious administrative act. In: VerwArchiv 1991, p. 291 ff.
  21. ↑ Oldiges, p. 41 f.