Continuation declaratory action

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As a continuation declaratory action, often abbreviated to FFK in jurisprudential literature , one describes in public law a lawsuit with which the determination of the illegality of a completed administrative act is sought .

The action for a continuation of a declaratory judgment is closely related to the action for annulment , as both actions serve to review the illegality of an administrative act. In principle, an action for annulment is provided for such cases. However, if this is dealt with in the process, the legal protection requirement of the avoidance action no longer applies, so that it becomes inadmissible. The plaintiff can declare the dispute settled or pursue their original claim in the process by converting their lawsuit to a continuation action. With this he can establish that the attacked administrative act was unlawful and violated his rights. This allows him to get the fruits of his litigation.

The legal nature of the action for a declaration of continuation is controversial. In jurisprudence, it is judged as an action for annulment, as a declaratory action or as a lawsuit of its own type ( lat. Sui generis ).

The action for a continuation of a declaratory judgment is standardized for administrative jurisdiction in Section 113 (1) sentence 4 of the Administrative Court Code (VwGO). It is of great practical importance there, for example in the area of police and regulatory law . Furthermore, it is regulated in Section 100, Paragraph 1, Clause 4 of the Tax Court Regulations (FGO) for financial jurisdiction and in Section 131, Paragraph 1, Clause 3 of the Social Court Act (SGG) for social justice.

The legal norms that regulate the action for a continuation of the declaratory judgment only cover the case of settlement after the action has been brought. However, according to the prevailing view in jurisprudence, the action for a declaratory judgment also applies analogously in several case constellations .

Factual judgment requirements of the administrative procedural continuation declaratory action

So far, jurisprudence and doctrine have presumably assumed that the action for a continuation of the declaratory judgment is in any case very close to the action for avoidance and that the special judgment requirements of the action for avoidance must therefore be observed.

Admissibility

Direct application

According to § 113 Paragraph 1 Clause 4 VwGO, the action for a continuation of a declaratory judgment is permissible if the plaintiff wishes to have the illegality of an administrative act that has been dealt with in court proceedings established.

According to Section 35 Clause 1 of the Administrative Procedure Act (VwVfG), an administrative act is a sovereign measure by an authority to regulate an individual case in the field of public law, which is aimed at external effects. This applies, for example, to the restaurant permit and the demolition order .

An administrative act has been dealt with in accordance with Section 43 (2) VwVfG if it has become irrelevant. This can occur as a result of an official withdrawal of the administrative act according to § 48 VwVfG or a more specific regulation. Irrelevance can also occur through the revocation of the administrative act, through the passage of time, through the occurrence of a circumstance or through the cancellation of the administrative act by a court or an objection authority . If, for example, the building for which a demolition order was issued is destroyed by a natural event, the order becomes irrelevant.

The execution of an administrative act does not necessarily lead to its completion. This can retain regulatory effect, for example, by representing the legal basis of a claim for costs. This results from Section 113 (1) sentence 2 VwGO, which only allows the consequences of enforcement to be reversed if the administrative act that triggered these consequences has been repealed.

Analog application

According to the prevailing view in jurisprudence, the continuation declaratory action is applied analogously as an admissible type of action in several case constellations.

Pre-litigation deals

According to the wording of the provisions on the action for a declaratory judgment, this only comes into question if the settlement occurs during the legal process. It is therefore not permitted in the case of pre-litigation processing. Often there is this example in the police law because the measures police with their implementation typically do in the short term: if for example after a sending-off has left the respective location, not affected by the reference later, so that completion has occurred.

However, an analogous application of the action for a declaration of continuation is possible. This requires an unplanned loophole and a comparable interest situation. An unplanned loophole exists if the legislature has not regulated a matter, although this would have been necessary.

Some voices in jurisprudence deny the existence of a loophole, since the plaintiff can fall back on the general declaratory action according to § 43 VwGO. With the help of this action, he can have the existence or non-existence of a legal relationship established in accordance with Section 43 (1) VwGO. The term legal relationship is widely understood in jurisprudence, so that with the aid of this lawsuit it could be established that the authority acted unlawfully by issuing the administrative act and violated the plaintiff's rights. This opinion is based on an obiter dictum from a senate of the Federal Administrative Court .

According to the prevailing view in jurisprudence, there is a loophole in the regulation: The admissibility of the general declaratory action led to the fact that the special prerequisites for a decision on the matter, such as the implementation of preliminary proceedings ( Section 68 (1) sentence 1 VwGO) and the observance of a period for filing a complaint ( Section 74 (1) VwGO) would be undermined. There is no reason to make this dependent on the ultimately random point in time at which the administrative act was carried out.

Exclusion of the right to cancellation

Furthermore, the action for a continuation of a declaratory judgment is permissible analogously to Section 113 (1) sentence 4 VwGO if the challenged administrative act has not been dealt with but cannot be revoked despite its illegality.

The right to rescission is excluded if the administrative act suffers from an error that is irrelevant in the process according to Section 46 VwVfG. The standard relates to procedural and formal errors as well as errors in local jurisdiction . Irrelevance occurs if the error obviously did not influence the factual decision.

The right to cancellation is also excluded in cases in which the factual or legal situation has subsequently changed in such a way that the originally illegal administrative act could now be lawfully issued. In this case, the administrative act is generally not canceled, as this would not bring any improvement from the plaintiff's point of view. Finally, in the event of repeal, he would have to expect the adoption of a new, similar administrative act.

Obligation situation

Finally, action for a continuation of the declaratory judgment is also applied analogously in situations involving action for obligations (Section 42 (1) Alternative 2 VwGO). Such a situation exists if the citizen wants to oblige an authority to issue an administrative act, for example to issue a special road use permit or a building permit .

On the one hand, a change from an obligation to a continuation declaratory action can be considered if the plaintiff's interest in issuing the administrative act no longer applies. In the case of the special use permit, this can be considered if it relates to a specific event that has since been canceled. By converting his obligation to a continuation declaratory action, the plaintiff can now establish that the permit should have been granted.

On the other hand, the change of action comes into question if the factual or legal situation subsequently changes. If, for example, after the action for a building permit has been filed for a project in the unplanned area, a development plan is issued according to which the plaintiff's project is inadmissible under planning law, the plaintiff can use a continuation declaratory action to establish that the project was legally permissible before the development plan was issued.

Performance situation

Some voices also assume that the action for a continuation of a declaratory judgment analogous to Section 113 (1) sentence 4 VwGO is also permissible when processing requests that are asserted with the general action for performance . Although this type of action is not expressly regulated in administrative procedural law, it is required in several provisions, for example in Section 43 (2), Section 111 , Section 113 (4) VwGO. It is admissible if the plaintiff desires a service that is not an administrative act. This particularly applies to real files and omissions . A settlement exists, for example, if an authority withdraws a statement while the citizen complains about its omission.

The prevailing opinion is that this case constellation lacks the unplanned loophole. In such cases, the general declaratory action already offers sufficient legal protection. There is no risk of circumventing the specific prerequisites of administrative action lawsuits, since the lawsuit does not relate to an administrative act.

Admissibility of the main action

Direct application

The action for a continuation of the declaratory judgment comes into effect directly as a result of the change in a lawsuit for rescission. Their admissibility therefore requires that the original action for annulment was admissible. It is therefore necessary to have the right to bring an action under Section 42 (2) VwGO. This exists if the plaintiff asserts that he has violated his own right by the administrative act and this violation is not obviously ruled out. If an objection procedure is necessary, this must have been carried out beforehand. Finally, the complaint must have been filed in the correct form and in due time.

Analog application

It is controversial in jurisprudence to what extent the admissibility requirements are based on those of the rescission action when applying the action for a continuation of a declaration to avoidance requests.

There is agreement that the plaintiff must be entitled to take legal action in accordance with Section 42 (2) VwGO. This is to avoid popular lawsuits.

It is disputed whether an objection procedure must be carried out before the action for a declaration of continuation is filed. According to the prevailing opinion, this is dispensable, since the legislature deliberately decided against a continuation of the determination in Section 68 VwGO. Thus, there is no unintended loophole. A counter-opinion, however, considers the previous objection to be necessary, since the purposes of the preliminary proceedings - administrative self-control and legal discharge - can also be achieved after the administrative act has been completed.

The existence of a deadline for filing an action is also disputed. According to the prevailing opinion, the analogous action for a continuation declaratory judgment is not subject to a time limit. According to a counter-view, there is a time limit, since the completion should not give the plaintiff the opportunity to attack the administrative act indefinitely. In view of the great parallels between actions for a continuation determination and actions for rescission, it is also appropriate to accept a time limit.

Change of suit

If the claim is settled in the process, the plaintiff must change his original claim by applying to the court. In doing so, he restricts this application in accordance with Section 173 Sentence 1 VwGO in conjunction with Section 264 number 2 of the Code of Civil Procedure . Therefore, the defendant's consent is not required.

Continuation determination interest

Finally, the plaintiff must assert that he has a legitimate interest in the court's decision on the matter dealt with. In jurisprudence, this interest is referred to as the continuation determination interest. From a dogmatic point of view, this is a special case of the general need for legal protection.

Jurisprudence and teaching have developed several groups of cases in which there is an interest in continuing a determination.

Risk of repetition

An interest in continuing a determination can arise from a risk of repetition. This exists if the authority shows that under comparable circumstances it will again issue a similar administrative act against the plaintiff if it deems this necessary. The threat of a similar administrative act against third parties is not sufficient.

Prejudicial interest

An interest in continuing a determination can still arise from an interest in prejudice . This exists if the administrative court action serves to prepare an official liability process . It is not necessary that usable process results are already available. However, the plaintiff must seriously intend to initiate official liability proceedings. The official liability process must not obviously have no chance of success.

The prejudicial interest is only recognized as a legitimate interest in continuing a determination after the filing of an action. If the matter is dealt with before an action is brought, the plaintiff can take the civil legal process directly, which also examines the legality of the administrative act.

In the opinion of the Bavarian State Social Court, there is also an interest in prejudiciality if the decision can be significant in another disputed legal relationship, especially for the enforcement of subsequent claims such as claims for damages.

Rehabilitation interest

Finally, the desire for rehabilitation may result in an interest in continuing a determination. Such an interest can result from the fact that the administrative act or its execution have a degrading effect. This can result, for example, from an impairment of the general right of personality from Art. 2 Paragraph 1 GG in conjunction with Art. 1 Paragraph 1 GG. It is necessary, however, that third parties have gained knowledge of the administrative act, as otherwise rehabilitation would not have an addressee.

Typically short-term completion of the administrative act

An interest in continuing a determination can also arise from the fact that the administrative act is typically completed at short notice, so that the person concerned is regularly unable to bring an action for rescission. This applies to the dissolution of an assembly according to § 15 paragraph 3 of the Assembly Act .

From the guarantee of effective legal protection by Art. 19 Paragraph 4 GG it follows that it must nevertheless be possible for the citizen to have such facts checked in court.

Far-reaching encroachment on fundamental rights

In the case of particularly burdensome measures, it is assumed that a judicial review of state acts must be possible even if the other case groups are not present, for example if a meeting is dissolved or an apartment is searched.

Justification

The action for a continuation of the declaratory judgment is based on a contestation situation if the challenged administrative act was unlawful and violated the plaintiff's rights. The relevant point in time for assessing the factual and legal situation is the legal situation at the time of the event to be dealt with, more precisely: the point in time immediately before it.

Individual evidence

  1. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 307
  2. ^ Albert Ingold: The continuation declaratory action in the case processing . In: Legal worksheets 2009, p. 711.
  3. ↑ a b c Mario Martini: Administrative procedural law and general administrative law: systematic representation in a graphic-text combination . 6th edition. Franz Vahlen, Munich 2017, ISBN 978-3-8006-4998-3 , pp. 79 .
  4. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 314.
  5. ↑ BVerwGE 109, 203 (209).
  6. ↑ Matthias Wehr: Farewell to the action for a declaration of continuation analogous to Section 113 (1) sentence 4 VwGO . In: Deutsches Verwaltungsblatt 2001, p. 785 (787).
  7. ↑ Helge Sodan, Sebastian Kluckert: The administrative procedural determination of past and future legal relationships . In: Verwaltungsarchiv 2003, p. 3 (19).
  8. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 326.
  9. ^ Hermann Pünder: § 14, Rn. 85. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  10. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 327.
  11. ↑ Andreas Decker: The continuation declaratory action in the situation of the obligation action . In: Legal worksheets 2016, p. 241.
  12. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 18, Rn. 44.
  13. ^ Heinrich Wolff: § 113 , Rn. 316. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court order: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  14. ↑ BVerwG, judgment of April 29, 1997, 1 C 2.95 = Neue Juristische Wochenschrift 1997, p. 2534.
  15. ↑ Ralf Schenke: The readjustment of the action for a declaration of continuation . In: Juristische Schulung 2007, p. 697 (699).
  16. ↑ Mario Martini: Administrative procedural law and general administrative law: systematic representation in a graphic-text combination . 6th edition. Franz Vahlen, Munich 2017, ISBN 978-3-8006-4998-3 , pp. 81 .
  17. ^ A b Albert Ingold: The continuation declaratory action in case processing . In: Juristische Arbeitsblätter 2009, p. 711 (712).
  18. ↑ a b Mario Martini: Administrative procedural law and general administrative law: systematic representation in a graphic-text combination . 6th edition. Franz Vahlen, Munich 2017, ISBN 978-3-8006-4998-3 , pp. 85 .
  19. ↑ Jochen Rozek: Basic cases for the administrative judicial proceeding declaratory action . In: Juristische Schulung 1995, p. 598.
  20. ↑ Jochen Rozek: News on the action for a declaration of continuation: to be continued? - BVerwGE 109, 203 . In: Juristische Schulung 2000, p. 1162 (1164).
  21. ↑ BVerwGE 109, 203 (208).
  22. ↑ Jochen Rozek: Basic cases for the administrative judicial proceeding declaratory action . In: Juristische Schulung 1995, p. 697 (700).
  23. ↑ Ralf Schenke: The readjustment of the action for a declaration of continuation . In: Juristische Schulung 2007, p. 697 (700).
  24. ↑ BVerwG, judgment of May 16, 2007, 3 C 8/06, NJW 2007, p. 2790 (2791).
  25. ↑ Hans-Uwe Erichsen: The continuation declaratory action . In: Jura 1989, p. 49.
  26. ↑ Wolf-Rüdiger Schenke: Legal protection against completed administrative actions . In: Jura 1980, p. 133 (142).
  27. ↑ BVerwG, judgment of April 26, 1993, 4 B 31.93 = Neue Zeitschrift für Verwaltungsrecht 1994, p. 282.
  28. ↑ Arne-Patrik Heinze, Oliver Sahan: The remaining scope of the action for a declaration of continuation according to § 113 I 4 VwGO . In: Juristische Arbeitsblätter 2007, p. 805 (806).
  29. ↑ BVerwGE 9, 196 .
  30. ↑ BVerwG, judgment of October 18, 1990, 3 C 19.88 = New Journal for Administrative Law 1991, p. 568.
  31. ↑ BVerwGE 81, 226 (228).
  32. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 585.
  33. ↑ a b LSG Bayern, judgment of April 24, 2017, L 7 AS 571/16.
  34. ↑ Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 , Rn. 584.
  35. ↑ Helge Sodan, Sebastian Kluckert: The administrative procedural determination of past and future legal relationships . In: Verwaltungsarchiv 2003, p. 3 (11).
  36. ↑ BVerwGE 61, 164 .
  37. ↑ Josef Lindner: The compensation function of the action for a declaration of continuation according to § 113 I 4 VwGO . In: New Journal for Administrative Law 2014, p. 180.
  38. ^ Albert Ingold: The continuation declaratory action in the case processing . In: Juristische Arbeitsblätter 2009, p. 711 (713).
  39. ↑ BVerwGE 151, 36 .