Collegiate Courts Directive

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The collegiate court guideline is a legal term from the German state liability law .

According to the established case law of the Federal Court of Justice , a civil servant is usually not at fault if a collegial court made up of several legal experts ( professional judges ) has regarded the official activity as objectively lawful. This is based on the consideration that no better legal insight can be expected from an official who has to act alone and in the urge of business than from a body with several legally qualified persons, which decides calmly and after careful consideration, after the process material in was spread out before him in fullness.

This principle has regularly only been developed for breaches of official duty and can only be valid there within limits under certain conditions. It presupposes that the specific behavior of the official who committed the breach of official duty to be assessed in the liability process has been the subject of approval by the collegiate court. So it does not apply if the public official can only generally refer to court decisions that support his legal opinion.

In general, a denial of fault is only justified if the collegial court has affirmed the legality of the official activity after careful examination. The Federal Court of Justice has therefore permitted exceptions to this general guideline in those cases in which the collegial court's assumption that the official act was lawful was based on an inadequate factual or legal basis for assessment, for example because the starting point of the court was already factual has not been able to clear the wrong point of view or because, as a result of inadequate factual determination, it has assumed a situation other than the one before which the official was presented or did not carefully and exhaustively assess the established facts.

For the applicability it is not absolutely necessary that the respective collegiate court has decided on the basis of an oral hearing or a judgment. Rather, a court ruling is sufficient . If the relevant procedural rules allow the court to form its final conviction about the legality of an official act without an oral hearing, a knowledge gained in this way must also have the same effect in the official liability process as a judgment given on the basis of an oral hearing.

example

A citizen reaches the building authorities an application for a building permit one. However, the responsible officer rejects the application because, in his opinion, the requirements for the granting of the building permit are not met. The citizen turns against this decision to the administrative court . The process of obtaining the building permit goes through several instances. One of the lower instances confirms the official's decision to reject the building application and rejects the citizen's action. However, when the citizen appeals, a final decision is ultimately made in a higher instance in favor of the citizen: the building permit must be granted, the citizen may build as planned. The higher court thus established legally binding that the civil servant should not have denied the citizen the building permit at the time.

In the meantime, however, the costs for the planned construction have risen considerably. The citizen wants to have this damage compensated by the civil servant's employer, the municipality. As the higher court found, the civil servant should have originally made the correct decision to issue the building permit and thus enable the citizen to have a more cost-effective construction. Such a claim for damages does not exist, however, because the responsible civil servant has not acted culpably: If even the court in the lower instance (the collegiate court) made up of several judges - ultimately wrong, but apparently not completely remote - did not see that the building permit was actually issued should have been granted, no fault can be made against the individual civil servant either.

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Individual evidence

  1. ↑ RGZ 106, 406.
  2. ↑ BGHZ 187, 286.
  3. ↑ Judgment of September 17, 2015 of the Munich Higher Regional Court , Az. 1 U 1041/14, para. 91-100, stating the case law of the Federal Court of Justice : BGH of October 8, 1992 - III ZR 220/90, BGHZ 119, 365, 369 f; from March 17, 1994 - III ZR 27/93, NJW 1994, 3158, 3159; from February 3, 2000 - III ZR 296/98, BGHZ 143, 362, 371 and from December 9, 2004 - III ZR 263/04, BGHZ 161, 305, 309
  4. ↑ BGH NVwZ-RR 2003, 166.
  5. ↑ Staudinger , Commentary on the BGB, para. 211 ff. On § 839 BGB.
  6. ↑ BGH NVwZ 1998, 1329.