Relevant point in time
In administrative procedural law, it depends on the question of the relevant point in time for assessing the factual and legal situation whether an administrative act or its rejection or omission is unlawful and an administrative court action is justified ( § 113 VwGO).
principle
In the case of an action for avoidance , the factual and legal situation at the time the administrative act was issued is decisive. If a notice of objection has been issued, it depends on the notice of objection. This is supported by the fact that the decision of the authority is reviewed in the annulment action and that this can only be based on the circumstances that existed when it was issued.
On the other hand, in the case of an action for obligations and for an action for performance , in principle also in the case of a declaratory action , the point in time of the court decision is taken as the basis. This is supported by the fact that in the event of an obligation and a performance suit, a claim is regularly asserted that must exist at the time of the decision.
Exception for actions for avoidance
Exceptions have always been made to these principles, for example for administrative acts with permanent effect and for administrative acts that have not yet been carried out.
In more recent case law, the Federal Administrative Court has generally questioned the principle for avoidance actions. It now assumes that procedural law does not know a principle according to which, in the context of a legal challenge, the legality of the administrative act must always be assessed according to the factual and legal situation at the time of the last administrative decision, but ultimately not only the substantive requirements of substantive law for the legality of an administrative act, but also the answer to the question of when these requirements must be met. Accordingly, it has taken the principle from foreigners law that in the case of an action against the expulsion of a foreigner, the factual and legal situation at the time of the last oral hearing before the administrative court must be taken into account.
The time of the last oral hearing can also be decisive in the case of a complaint by a municipality against a notice of objection by the supervisory authority, which obliges the municipality to issue a building permit that it has denied.
In cases of a third party contesting a building permit or an immission control permit for the construction and operation of a wind turbine, however, the factual and legal situation at the time the permit was granted is decisive for assessing the legality of the permit. However, this does not exclude the consideration of knowledge gained afterwards - for example based on a measurement carried out after the installation of the system.
Web links
- Klaus Ferdinand Gärditz , Johannes Orth: The relevant point in time for assessing the factual and legal situation in the Jura 2013 administrative process, pp. 1100–1109
Individual evidence
- ↑ BVerwGE 51, 362 revocation of the driving license; E 65, 1 business ban; DVBl 1992, 1435 LS 5c street planning; NVwZ 1997, 1124 Immigration Law
- ↑ BVerwGE 29, 304; 41, 227; 84, 160/1; 89, 356
- ↑ Dieter Schmalz: Explanation on BVerwG, judgment of 25 September 2008 - 3 C 21.07, NJW 2009, 610
- ↑ DVBl 2008, 392 expulsion after money laundering
- ↑ BVerwG, judgment of April 27, 1990 - 8 C 87.88, BayVBl. 1990, 666f. ( Memento of the original from June 8, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice.
- ↑ BVerwG, judgment of November 15, 2007 - 1 C 45.06
- ↑ BVerwG, judgment of December 13, 2007 - 4 C 9.07
- ↑ OVG Münster, decision of June 23, 2010 - 8 A 340/09 Zeitschrift für Neues Energierecht (ZNER) 2010, 514
