Ancillary provision

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The ancillary provision is an instrument of German administrative law . It is an addition to an administrative act that expands or restricts its regulatory content. Ancillary provisions are regularly used when a citizen applies for an administrative act, such as a building permit , to be issued. If the prerequisites are not met, but these can be brought about with the help of an additional regulation, the authority can issue the coveted administrative act with the necessary ancillary provision. This enables the authority to make a decision that takes the circumstances of the individual case into account in an appropriate manner.

The basics of the ancillary provision are regulated in Section 36 of the Administrative Procedure Act (VwVfG). This provision provides for five forms of ancillary provision: the condition, the time limit, the reservation of revocation, the condition and the reservation of conditions. In addition, more specific laws can provide for other forms of ancillary provisions.

How the addressee of an administrative act can proceed procedurally against an ancillary provision was extremely controversial in jurisprudence. There was disagreement as to whether an action for rescission or an action for obligation is admissible. The now prevailing view is based on the assumption that an ancillary provision can be challenged separately from the administrative act, insofar as it is procedurally and materially separable from it.

History of origin

Ancillary provisions are rooted in 19th century pandect science . In the course of the development of German administrative law, legal institutions under civil law, such as the condition and the time limit, were transferred to public law.

species

Section 36 (2) VwVfG lists five typical ancillary provisions: the time limit, the condition, the reservation of revocation, the condition and the reservation of conditions. Other types of ancillary provisions can result from special laws.

Ancillary provisions can be differentiated according to their content as to whether they contain an independent regulation or whether they merely represent part of the administrative act. This distinction is made in the wording of Section 36 (2) VwVfG, which distinguishes between the decree and the connection with the ancillary provision with an administrative act.

Dependent ancillary provisions

It is dependent on ancillary provisions if the provision does not contain its own statement of requirements or prohibitions, but is part of the overall regulation. They affect the direct regulatory statement of the administrative act and are issued with it in accordance with the wording of Section 36 (2) VwVfG. Therefore, they do not need to be implemented, but they are also not enforceable.

Time limit, § 36 Paragraph 2 Number 1 VwVfG

With the time limit , the validity of an administrative act is limited in terms of time. This ancillary provision has a similar purpose to the civil law limitation according to Section 163 of the German Civil Code (BGB).

The time limit links the regulatory effect of an administrative act to the passage of a period. The effectiveness of the administrative act is not affected by the time limit. In particular, an initial time limit does not postpone the effectiveness of the administrative act, because according to Section 43 (1) VwVfG , the administrative act becomes effective at the point in time at which it is announced.

A time limit exists, for example, if an administrative act is only to take effect from a certain future point in time. Jurisprudence refers to this as a suspensive time limit.

A dissolving time limit exists if an administrative act is to lose its effectiveness at a certain point in time.

Finally, there is a time limit if an administrative act is to have regulatory effect over a certain period of time.

Condition, § 36 Paragraph 2 Number 2 VwVfG

The regulatory effect of an administrative act is linked to the occurrence or elimination of an uncertain future event by a condition. The condition according to § 36 paragraph 2 number 2 VwVfG is based on the civil law condition according to § 158 BGB. Like this, the secondary provision can also be made suspensive and resolving. For example, the granting of a building permit for an industrial plant can be linked to the fact that the building owner uses a specific filter system.

Reservation of revocation, § 36 paragraph 2 number 3 VwVfG

When issuing the administrative act, the administration can reserve the right to revoke it at any time under the specified conditions. If the revocation takes place later, the effectiveness of the administrative act no longer applies. An effective reservation of cancellation is a prerequisite for cancellation without compensation in accordance with Section 49 (2) sentence 1 VwVfG.

An authority can, for example, attach a right of revocation to a subsidy notification to ensure that a subsidy is used for a specific purpose. In accordance with Section 6 (4) of the Federal Civil Service Act , the appointment of civil servants , for example, can also be subject to a right of revocation.

Independent ancillary provisions

Independent ancillary provisions contain their own regulatory statement. This can be carried out independently by way of administrative enforcement. However, they do not affect the effectiveness of the administrative act and its regulatory statement. An independent ancillary provision is combined with an administrative act in accordance with Section 36 (2) VwVfG.

Edition, § 36 Paragraph 2 Number 4 VwVfG

The condition according to § 36 Paragraph 2 Number 4 VwVfG is the ancillary provision that has the greatest importance in administrative practice. The condition obliges the citizen to act, to tolerate or to omit. The edition thus represents an independent administrative act according to § 35 sentence 1 VwVfG. The term "edition" is also used in other contexts in administrative law. Whether a secondary provision is meant depends on the interpretation of the wording referred to as the condition.

Failure to comply with a condition can lead to its enforcement by the administration. In the event of sustained violations, a revocation of the administrative act provided with the condition in accordance with Section 49 (2) sentence 1 number 2 VwVfG may also be considered.

According to the content of the rules, there is a close connection between requirement and condition. The difference between the two types of ancillary provision lies in their legal consequences: while the occurrence or elimination of a condition affects the content of the regulation of the administrative act, failure to comply with a condition does not affect it. The lawyer Friedrich Carl von Savigny described the difference between the two forms of secondary determination as follows: "The condition ... suspends but does not compel, the mode (corresponds to the condition) compels but does not suspend". If it is unclear whether an ancillary provision is a condition or a condition, the practice assumes a condition in case of doubt, as this constitutes a lower burden from the citizen's point of view.

Conceptually, but not legally, related to the edition is the modifying edition. Such is the case when the authority issues an administrative act with a different content than that which the citizen had requested. This applies, for example, if the client applies for a permit for a building with a pitched roof , but the authorities only approve a building with a flat roof . A modifying condition cannot be independently enforced due to the lack of its own regulatory content. The distinction between the requirement in the sense of Section 36 (2) number 4 VwVfG and the modifying requirement is based on the objective recipient horizon.

Subject to conditions, § 36 Paragraph 2 Number 5 VwVfG

With a reservation of conditions, an authority reserves the right to add conditions to an administrative act in the future or to change conditions contained therein.

requirements

Special laws

The authority to issue an ancillary provision can result from special laws that apply individual requirements to the admissibility of ancillary provisions. Section 5 (1) of the Catering Act allows the licensing authority, for example, to combine the catering license with a condition, provided that this is done for a protective purpose specified in the legal norm. According to Section 15 (4) of the Passenger Transport Act , the permission to transport people may not be subject to a reservation of revocation. Due to their nature, other decisions may not have an ancillary provision. This applies, for example, to examination decisions and the appointment of civil servants.

A special legal authorization to issue ancillary provisions is only given in the case of a bound decision if the standard contains an offense and the issue of ancillary provisions is linked to it as a legal consequence. It is not sufficient if the law merely states that an ancillary provision may be issued. This is only an indication that there are basically no concerns about combining a permit with ancillary provisions. Because of the materiality theory, however, this alone is not sufficient for the issue of an ancillary provision.

Section 36 VwVfG

If there are no special legal requirements, § 36 VwVfG forms the legal basis for the enactment of an ancillary provision. This legal norm differentiates according to whether the enactment of the coveted administrative act is at the discretion of the authority .

If there is no margin of appreciation - this is a bound decision - the admissibility of an ancillary provision is assessed according to Section 36 (1) VwVfG. A bound decision is, for example, the issue of a building permit or a restaurant license. According to Section 36 (1) VwVfG, an ancillary provision may be issued if it is intended to ensure that the prerequisites for issuing the requested administrative act are met. This applies if the condition is intended to eliminate circumstances that conflict with the adoption of the administrative act. The issuing of the ancillary provision is at the discretion of the authority.

If the issuing of the coveted administrative act is at the discretion of the authority, it can base its issuance of the ancillary provision on both Section 36 (1) VwVfG, i.e., issue an ancillary provision to safeguard the prerequisites for the offense, but also at the discretion of Section 36 (2) VwVfG issue an ancillary provision.

The authority's discretion is limited by the principle of proportionality . According to this, the ancillary provision must serve a purpose that is factually related to the legal matter concerned, be suitable for its promotion, and be necessary and appropriate. Furthermore, Section 36 (3) VwVfG prohibits the adoption of an ancillary provision that runs counter to the purpose of the administrative act.

Legal protection against an ancillary provision

Which legal remedy is permissible against an ancillary provision was extremely controversial in jurisprudence. It was discussed for a long period of time whether an incidental provision can be attacked with an action for avoidance or an obligation. According to a landmark ruling by the Federal Administrative Court, this issue has essentially been resolved in favor of the legal challenge. However, there is still disagreement as to which specific requirements are to be applied to the admissibility and merits of an action for avoidance against an ancillary provision.

Compulsory action

According to one opinion, only the legal remedy under Section 42 (1) Alternative 2 of the Administrative Court Code (VwGO) was a permissible legal remedy, since the plaintiff is seeking action from an authority in a favorable manner. According to this, the citizen had to sue for the enactment of a new administrative act that does not contain the undesirable ancillary provision.

Mediating views

In some cases it was suggested that the condition and reservation of conditions could be challenged with the action for annulment according to § 42 Paragraph 1 Alternative 1 VwGO. The legal action against the other ancillary provisions would be admissible. This view argued that only the condition and the reservation of conditions have separate regulatory content that can be challenged.

Another view differed according to whether the issuing of the administrative act was at the discretion of the authority. If the citizen was entitled to an administrative act, the ancillary provision could be challenged. If the authority had a margin of discretion, only the obligation action was allowed. The purpose of this differentiation was to give the authority its discretion.

Action for annulment

According to the prevailing view in jurisprudence and research, an action for annulment is generally admissible against all types of ancillary provisions. According to § 80 Paragraph 1 Clause 1 VwGO, this basically means that the action has suspensive effect , i.e. the enforceability of the ancillary provision is inhibited.

The prerequisite for this is that the administrative act and ancillary provision are procedurally divisible.

Process-related divisibility describes the possibility of being able to treat administrative acts and ancillary provisions as independent objects of a court case. It is not given if a challenge is obviously not possible or if the challenge clearly changed the administrative act in one essential point.

The material divisibility differs from the procedural divisibility. This represents one aspect of the merits of an action for avoidance against an ancillary provision. In the opinion of the Federal Administrative Court, it is present if the administrative act without an ancillary provision is lawful and represents a sensible regulation. According to a counter-view, material divisibility only exists in the case of bound decisions, since otherwise there is a risk that the authority will be forced to take an administrative act that it did not want to issue. According to the prevailing opinion, however, this can be prevented by granting the authority an analogous correction measure in accordance with Section 49 (2) No. 2 VwVfG .

The view that the action for annulment is a permissible legal remedy against all ancillary provisions argues with the wording of Section 113 (1) sentence 1 VwGO. According to this, an administrative act can be revoked if it is unlawful and infringes the plaintiff's rights. The term “as far as” therefore permits a partial cancellation of an administrative act. In addition, the authority could - even in the case of discretionary decisions - issue a new, lawful condition or revoke the administrative act. Furthermore, the citizen does not jeopardize the validity of his approval, unlike in a legal action.

literature

  • Sebastian Traub: Administrative acts that are hostile to secondary regulations . Contributions to administrative law 5, Mohr Siebeck, 2018. ISBN 978-3-16-155822-1 . Zugl. Univ-Diss. Heidelberg, 2017. Summary (PDF; 114 kB).

Individual evidence

  1. ^ Andreas Voßkuhle, Anna-Bettina Kaiser: Basic knowledge - public law: ancillary provisions . In: Juristische Schulung 2012, p. 699 (699–700).
  2. Ulrich Stelkens: § 35 , Rn. 107. In: Paul Stelkens, Heinz Bonk, Michael Sachs (ed.): Administrative Procedure Act: Comment . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71095-7 .
  3. ^ Andreas Voßkuhle, Anna-Bettina Kaiser: Basic knowledge - public law: ancillary provisions . In: Juristische Schulung 2012, p. 699 (700).
  4. a b Matthias Ruffert: § 23, Rn. 4. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  5. Christian Heitsch: Ancillary and content provisions for favorable administrative acts : criteria for the selection of the appropriate regulatory instrument. In: Public Administration 2003, p. 367.
  6. ^ 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 , § 18 marginal no. 3.
  7. ^ Matthias Ruffert: § 23, Rn. 6. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  8. ^ 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 , § 18 marginal no. 4th
  9. ^ Matthias Ruffert: § 23, Rn. 7. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  10. a b c Matthias Ruffert: § 23, Rn. 9. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  11. Friedhelm Hufen, Christian Bickenbach: The legal protection against ancillary provisions to the administrative act . In: Juristische Schulung 2004, p. 867 (869).
  12. ^ Friedrich Carl von Savigny: System of today's Roman law . Volume 3. Berlin, 1840, p. 231.
  13. a b Matthias Ruffert: § 23, Rn. 10. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  14. BVerwGE 65, 139 (141).
  15. ^ Matthias Ruffert: § 23, Rn. 11. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  16. ^ Matthias Ruffert: § 23, Rn. 13. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  17. Günter Henneke: § 36 , Rn. 31. In: Hans Knack, Günter Henneke (Ed.): VwVfG Comment . 10th edition. Heymanns, Cologne 2014, ISBN 978-3-452-28170-8 .
  18. ^ Matthias Ruffert: § 23, Rn. 15. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  19. a b c BVerwGE 112, 221 .
  20. Holger Stadie: Legal protection against ancillary provisions of a favorable administrative act . In: Deutsches Verwaltungsblatt 1991, pp. 613–616.
  21. Bernd Fehn: The isolated edition challenge . In: The Public Administration 1988, p. 202 (210).
  22. BVerwGE 29, 261 , 265.
  23. Jost Pietzcker: Legal protection against ancillary provisions - unsolvable? In: NVwZ 1995, 15 (20).
  24. BVerwGE 55, 135 (136).
  25. Friedhelm Hufen, Christian Bickenbach: The legal protection against ancillary provisions to the administrative act . In: Juristische Schulung 2004, p. 966 (968–969).
  26. ^ Andreas Voßkuhle, Anna-Bettina Kaiser: Basic knowledge - public law: ancillary provisions . In: Juristische Schulung 2012, p. 699 (701).
  27. BVerwGE 112, 221 (224).
  28. Friedhelm Hufen, Christian Bickenbach: The legal protection against ancillary provisions to the administrative act . In: Juristische Schulung 2004, p. 867 (871).