Consequences removal claim

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The claim to remedy the consequences is a claim recognized under customary law from the legal complex of German state liability law . It can be used to eliminate unlawful sovereign action that has arisen through the execution of an administrative act , provided that the interference represents a violation of the subjective rights of the claimant.

Unlike numerous other legal institutions of state liability law, which go to monetary compensation, the claim is directed to natural restoration of the original lawful condition. Since this is not a claim for damages , restitution in kind , which is aimed at the creation of a hypothetical existing situation, is out of the question, instead the original condition must be restored.

The administrative court process has been opened . The action for avoidance comes into consideration , along with the general action for performance and the action for obligation .

History of origin

The development of the right to remedy the consequences began in jurisprudence after the Second World War : Since numerous buildings were destroyed during the war, there was a lack of living space. The public authorities therefore regularly directed homeless people into unfamiliar living space. In some cases, such admissions were subsequently found to be illegal, which is why they were revoked. In the case of others, the prerequisites for instruction did not apply, for example because the measure was limited in time. In such cases, the owners affected by the briefing requested that the responsible authorities expel the inmates. However, the law did not provide them with an appropriate entitlement to achieve this goal. From Section 113 (1) sentence 2 of the Administrative Court Code (VwGO), the addressee of an illegal administrative act has the right to demand the removal of the immediate consequences of its implementation after the administrative act is repealed. However, this standard does not justify a claim for removal, but merely describes a possibility of enforcing a claim in court. Thus there was no public legal right to removal. In order to remedy this deficit in legal protection, jurisprudence began to construct a claim that obliged the public sector to eliminate the unlawful consequences of sovereign action.

As a result, different approaches arose in order to develop a claim to remedy the consequences on the basis of the applicable law: In some cases, an analogy to the civil-legal defense claims from § 1004 , § 12 and § 862 of the Civil Code (BGB) is used, in some cases the rule of law and the Principle of the legality of administration , which is derived from Art. 20 Paragraph 3 of the Basic Law (GG). In some cases, the case law also referred to general principles of administrative law . The now prevailing view assumes that the right to remedy the consequences arises from the fundamental rights ; In some cases, the guarantee of effective legal protection from Art. 19 Paragraph 4 GG is also used. This view argues that fundamental rights should enable citizens to avert sovereign interference in their legal sphere. In order for this defense function to be effectively enforced, the fundamental rights also include a right to have the consequences of an interference removed if it turns out to be illegal.

A right to remedy the consequences was codified in the Federal Republic of Germany for the first time in the State Liability Act that came into force in 1982 . This regulation was declared unconstitutional by the Federal Constitutional Court on October 19, 1982 due to the lack of legislative competence of the federal government. Therefore, the right to remedy the consequences is currently based on legal training .

to form

Jurisprudence distinguishes between two forms of the right to remedy the consequences: If the consequences of an administrative act are to be removed, it speaks of a right to the removal of the consequences. On the other hand, the general right to remedy the consequences applies to the rest of the administrative work, such as real files. This is of importance, for example, in the case of immissions that affect sovereign institutions.

Both claims have the same elements. There is, however, a difference in procedural terms: while the claim for the removal of the consequences of the execution according to Section 113 (1) sentence 2 VwGO can be asserted as an annex to an action for rescission , the general claim for the removal of consequences is asserted in the context of a general action for performance or for an obligation .

Eligibility requirements

Sovereign action

The right to remedy the consequences requires action of a public law nature, for example by an administrative authority or someone on loan . However, it does not include judicial decisions that have become legally binding, as well as acts of the legislature. In the case of private law action, the defense claims of the civil claim are directly relevant, so that a public law claim is not required.

It is always a matter of sovereign action when resorting to specific forms of action under public law, for example in the form of an administrative act. According to Section 35 Clause 1 of the Administrative Procedure Act (VwVfG), this is a binding regulation of an individual case, which is issued to a citizen in the exercise of a sovereign function. Another form of action under public law is the conclusion of a public law contract in accordance with Section 54 Clause 1 VwVfG.

Sovereign action can continue to have the character of a real act. This describes purely actual action that does not take place in any legal form. A real act is, for example, noise emissions from a playground. Since there is no legal act, not every real act that originates from a sovereign can be qualified as sovereign act; its actions can also be assigned to private law . The jurisprudence differentiates sovereign real acts from private law based on their factual context. In the case of noise emanating from a public playground, it is a matter of sovereign action, for example, if the noise emissions originate within the typical use of the area intended by the municipality. Statements by a sovereign represent sovereign action if they are made in the exercise of a sovereign function.

Legal intervention

The sovereign action must lead to an interference in a subjective right of the claimant. Any legal position that is at least also assigned to the claimant can be considered as such a right. This applies, for example, to fundamental rights. If the state annoys a citizen with noise pollution, this constitutes a violation of his property right protected by Art. 14 GG .

Illegal condition

The sovereign action must continue to lead to an unlawful situation at the expense of the claimant. In contrast, it is irrelevant whether the sovereign action was originally lawful. A condition is illegal as long as the citizen is not obliged to tolerate it.

Obligations to tolerate may result from the law. For example, Section 906, Paragraph 1, Clause 1 of the German Civil Code contains the obligation to tolerate only slightly disturbing immissions. Obligations to tolerate also arise if the consent of the person concerned or the perception of legitimate interests conflict with the illegality of a measure. Administrative acts and contracts under public law can also oblige to tolerate . For example, a decree instructing the homeless into a building obliges its owner to accept the instruction.

The illegal condition to be eliminated must exist at the time the claim is asserted. This is lacking, for example, if an originally unlawful condition is subsequently legalized, for example through a dedication .

Possibility and reasonableness of removal

Ultimately, it must be actually and legally possible for the authority to remove the condition. On the other hand, there is legal impossibility if an illegal situation is to be restored. The elimination of the consequences can also be legally impossible if it requires a sovereign intervention in the rights of a third party. This applies, for example, if a homeless person who has been temporarily admitted to a building belonging to the claimant remains there after the period has expired. The competent authority can evict the homeless from the apartment with the help of an eviction order. This is a general hazard prevention measure that may only be taken if the factual requirements of the general police and regulatory law clause are met. If this is not the case, for legal reasons it is impossible for the authority to remedy the illegal situation.

A case of actual impossibility is, for example, the removal of an unlawful official statement, since such a statement cannot be withdrawn.

The removal is unreasonable if it required an effort or cost that is out of proportion to the interest of the citizen in restoring the lawful condition. This was accepted by case law, for example, when a citizen demanded the removal of a road that was wrongly built on a strip several centimeters wide on his property.

Content of the claim

The right to remedy the consequences serves to restore the situation that existed before the sovereign intervention (so-called status quo ante ). This objective can be achieved in different ways. On the one hand, the sovereign can be required to end the current impairment, which is the direct consequence of the interference, and to refrain from future ones. On the other hand, he can be obliged to restore the previous state through active action. In the area of ​​untrue factual statements or other offensive statements, this is usually done by revoking or correcting the statement.

If the right to remedy the consequences is excluded for legal or factual reasons, the citizen can be entitled to compensation .

In the opinion of case law, the regulation of § 254 BGB applies analogously to the claim for the removal of consequences . According to this standard, the claim of the claimant is reduced in its scope, provided that this is partly to blame for the creation of the condition. This is the case, for example, when the damage to a wall is due to both road construction work and actions by the owner. The analogy bases the case law on the fact that § 254 BGB brings a general legal idea to the fore. A reduction in entitlement is possible if the entitlement to remedy the consequences is based on a divisible service. If, on the other hand, the service is indivisible, because it is aimed at carrying out a construction project, for example, the right to remedy the consequences in the event of contributory negligence is excluded. Instead, the citizen receives a claim analogous to § 251 BGB to payment of a sum of money that is necessary to remedy the consequences. This amount is reduced by the debtor's debt ratio.

Procedural matters

In procedural terms, the claim in accordance with Section 40 (1) sentence 1 VwGO is enforced through administrative channels.

The claim is subject to the standard statute of limitations . This begins in accordance with Section 199 of the German Civil Code (BGB) paragraph 1 of the German Civil Code (BGB) at the end of the year in which the injured party becomes aware of or negligently misunderstood the eligibility requirements and is three years in accordance with Section 195 of the BGB. If the injured party does not know the prerequisites and cannot be accused of ignorance, the statute of limitations according to Section 199 (3) number 1 BGB at the latest within ten years after the occurrence of the unlawful situation.

literature

  • Otto Bachof : The administrative court action for the performance of an official act: at the same time an investigation into the public law claim to remedy the consequences after the repeal of an illegal administrative act , Heidelberg University, Habilitation thesis 1950 (university thesis), Mohr, Tübingen 1951.
  • Wolfgang Martens: Negative legal protection in public law: presented on the basis of judicial practice on injunctive relief and removal claims against sovereign real files , Boorberg, Stuttgart 1973, ISBN 3-415-00302-7 .
  • Gabriele Pietzko: The substantive legal claim to eliminate consequences , University of Cologne, dissertation 1992, Duncker and Humblot, Berlin 1994, ISBN 3-428-08023-8 .
  • Tobias Schneider: Elimination of consequences in administrative law: an investigation into the legal basis, facts and legal consequences of the public-law claim to eliminate consequences , University of Tübingen, dissertation 1993 - under the title: Claim to eliminate consequences in administrative law , Nomos-Verlag-Gesellschaft Baden-Baden 1994, ISBN 3-7890- 3394-4 .
  • Stephan Südhoff: The claim to the elimination of consequences as the basis of administrative procedural law exploitation prohibitions , Heidelberg University, dissertation 1993, Lang, Frankfurt am Main [u. a.] 1995, ISBN 3-631-48235-3 .

Web links

Individual evidence

  1. ↑ a b Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 41 Rn. 3.
  2. ↑ Andreas Voßkuhle, Anna-Bettina Kaiser: Basic knowledge - public law: The claim to eliminate consequences . In: Juristische Schulung 2012, p. 1079 (1080).
  3. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 41 Rn. 1.
  4. ^ Winfried Brugger: Form and justification of the claim for the removal of consequences . In: Juristische Schulung 1999, p. 625 (630).
  5. ↑ Wilfried Fiedler: The claim to the elimination of consequences - the “little coin” of state liability law? - On the problem of the right to remedy the consequences in recent case law . In: Neue Zeitschrift für Verwaltungsrecht 1986, p. 969 (971).
  6. ↑ Federal Administrative Court: IV C 23.69 . In: Neue Juristische Wochenschrift 1972, p. 269.
  7. ↑ Szymon Mazur: Restitution of the Consequences of Unjustified Interferences in Fundamental Rights - The Claim to Eliminate Consequences . In: Journal for Legal Studies 2011, p. 321 (322).
  8. ↑ Ingo Kraft: Elimination of consequences in three-pole legal relationships . In: Bayerische Verwaltungsblätter 1992, p. 456 (457)
  9. ↑ Maurer, General Administrative Law, Section 30, no. 6; Martini, Administrative procedural law, p. 145
  10. ↑ BVerfGE 61, 149 .
  11. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 356 .
  12. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 375 .
  13. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 41 Rn. 4th
  14. ↑ Federal Court of Justice: V ZR 114/74 . In: Neue Juristische Wochenschrift 1976, p. 570.
  15. ↑ Bavarian Administrative Court : 26 B 82 A.2088 . In: New Journal for Administrative Law 1989, p. 269.
  16. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 376 .
  17. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 374-375 .
  18. ↑ BVerwGE 82, 76 (95).
  19. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 381 .
  20. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 41 Rn. 6th
  21. ↑ BVerwGE 28, 155 (163).
  22. ^ Steffen Detterbeck: General administrative law with administrative procedural law . 15th edition. CH Beck, Munich 2017, ISBN 978-3-406-70749-0 , Rn. 1211.
  23. ↑ Federal Administrative Court: 6 B 33.15 . In: New Journal for Administrative Law Case Law Report 2016, p. 225.
  24. ^ OVG Nordrhein-Westfalen, judgment of October 25, 1990, 9 B 2864/90 = Deutsches Verwaltungsblatt 1991, p. 1372.
  25. ↑ VGH Mannheim, judgment of December 2, 1996, 1 ​​S 1520/96 = Neue Juristische Wochenschrift 2832, 2833.
  26. ↑ Bavarian Administrative Court : 4 B 83 A / 638 . In: New Journal for Administrative Law 1986, p. 327.
  27. ↑ Maurer, General Administrative Law, § 30 Rndr. 14th
  28. ↑ Federal Administrative Court: IV C 23.69 . In: Neue Juristische Wochenschrift 1972, p. 269.
  29. ↑ VGH Bayern, judgment October 27, 1998, 8 B 97.1604 = Neue Zeitschrift für Verwaltungsrecht 1999, p. 1237.
  30. ^ Sören A. Croll: (Enforcement) Consequences Removal Claim , in: Jura Online, accessed on April 23, 2020.
  31. ↑ Federal Administrative Court: 6 C 4.12 . In: New Journal for Administrative Law 2014, p. 233.
  32. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 359 .
  33. ^ Steffen Detterbeck: General administrative law with administrative procedural law . 15th edition. CH Beck, Munich 2017, ISBN 978-3-406-70749-0 , Rn. 1214.
  34. ↑ Maurer, General Administrative Law, Section 30, no. 17th
  35. ↑ BVerwG, judgment of April 14, 1989, 4 C 34.88 = Neue Juristische Wochenschrift 1989, p. 2484 (2485).
  36. ^ Steffen Detterbeck: General administrative law with administrative procedural law . 15th edition. CH Beck, Munich 2017, ISBN 978-3-406-70749-0 , Rn. 1219.
  37. ^ Fritz Ossenbühl, Matthias Cornils: Staatshaftungsrecht . 6th edition. CH Beck, Munich 2013, ISBN 978-3-406-64151-0 , p. 399 .
  38. ^ Steffen Detterbeck: General administrative law with administrative procedural law . 15th edition. CH Beck, Munich 2017, ISBN 978-3-406-70749-0 , Rn. 1225.