Legal standing
The right to bring an action or litigation authority (also called the right to complain ) is a term from German procedural law . The plaintiff is entitled to sue if he claims that his own subjective rights have been violated. Many types of proceedings know the right to bring an action as a precondition for admissibility , which means that the action is already dismissed as inadmissible if there is no legal standing, without a decision on the matter (merits) at all.
The requirement to violate one's own rights can only be waived where a law also grants third parties the right to sue, for example in the form of representative actions .
Meaning and purpose of the regulation
The reason given for the legal requirement of the right to bring an action is often "defense against the popular lawsuit ": An innocent person who is not affected should not act as the guardian of foreign interests. There is therefore no general right to law enforcement, but only a right of those affected. In this respect, the requirement also protects the freedom of those affected not to fight a legal dispute, as well as the courts from being overburdened.
This line of reasoning is not compulsory where the procedure is subjective, i.e. where the justification presupposes the violation of the plaintiff's rights anyway ( action for annulment , action for obligation ). There - and this is the main statutory area of application - the requirement of legal standing brings a component of the factual examination forward to the admissibility level. The reason may be that a lawsuit that is so obviously unfounded should already be dismissed as inadmissible without even having to deal with the sometimes complicated legal questions of the merits.
It is therefore understandable that for the right to bring an action it is generally regarded as sufficient that the violation of the plaintiff's subjective rights is possible ( possibility theory ). In individual cases, however, it can be questionable whether the right to bring an action and thus admissibility should be rejected as “obvious” or whether the action is admissible but unfounded due to the lack of a violation of own rights.
Even if no subjective rights, but rather mere organizational powers are to be violated in an internal legal dispute , a “right to bring an action” is regularly required.
In objective proceedings , which are not concerned with the violation of subjective rights, but with the control of objective law , there is usually no legal standing. Overloading the judiciary is usually ruled out because the number of applicants is low. It is therefore inexpedient to use terminology to describe any application requirements as “legal standing”. Only the principle control of norms according to § 47 VwGO , within the framework of which the Higher Administrative Court (in Bavaria , Baden-Württemberg and Hesse Administrative Court ) checks development plans and regulations and statutes for their validity in accordance with state law, makes an unusual exception. Although this is an objective procedure - only the legality of the challenged norm is examined - Section 47 (2) sentence 1 VwGO has limited the admissibility since 1997 to “any natural or legal person who asserts through the legal provision or its application to be violated in their rights or to be violated in the foreseeable future. "
Types of procedure
Administrative procedural law
For administrative procedural law , the right of action is laid down in Section 42 (2) VwGO:
- " Unless otherwise stipulated by law, the action is only admissible if the plaintiff asserts that his rights have been violated by the administrative act or its refusal or omission ".
From the systematics (connection with Paragraph 1) it becomes clear that only actions for avoidance and obligation are expressly meant here. However, the provision is applied analogously to the general action for performance and, according to popular opinion, also to the action for a declaratory judgment . Section 42 (2) VwGO is also applied accordingly to the preliminary proceedings ( right to object ). Since the objection authority also checks the expediency of the administrative act , there is also the right to object if the possibility of the violation of the law is not based on an illegal, but inexpedient administrative act.
Even the principle control of norms according to § 47 VwGO knows the right to bring an action, albeit an objective procedure (see above).
Financial and social procedural law
For proceedings before the tax courts , Section 40 (2) FGO knows the right to bring an action. For social justice , it is set out in Section 54 SGG .
Constitutional jurisdiction
In constitutional jurisdiction, the right to bring a complaint is a precondition for admissibility, especially for constitutional complaints ( Art. 93 (1) no. 4 GG : right to appeal) and organ dispute proceedings ( Art. 93 (1) no. 1 GG). As an objective type of procedure, the standards control procedures have no right of action.
A unique in Germany exception is the Bavarian constitution , in Art. 98 set 4 in conjunction with Art. 55 VfGHG a popular action to Bavarian Constitutional Court allows to state laws that contradict the state constitution. No legal standing is required here, so bystanders can also file a suit.
Civil procedural law
For the situation in civil proceedings see under Litigation Authority .
Examination of legal standing
In administrative court proceedings, the right to bring an action can then be affirmed without hesitation if the plaintiff has become the addressee of an onerous administrative act ( addressee theory ). Because from the understanding of Article 2, Paragraph 1 of the Basic Law as general freedom of action, it follows that every state order to a citizen is at least an interference with the general freedom of action. The violation of this fundamental right is therefore possible and there is legal standing.
On the other hand, the examination becomes problematic if third parties claim that they have been indirectly impaired by the beneficial administrative act directed at another. A prime example is the building permit against which the beneficiary's neighbor wants to take action. The addressee theory does not help here, rather it must be carefully examined which of the provisions of building law is not only to be checked by the approving authority, but also gives third parties a subjective right to compliance. When building regulations are to protect third parties in this way is to be determined through interpretation, in some cases even explicitly listed in the law (e.g. Section 5, Paragraph 7, Clause 3 of the Baden-Württemberg State Building Regulations: 4 of the wall height, for number 2 0.2 of the wall height and for number 3 0.125 of the wall height, but at least the depth according to sentence 2. ").
