Nullity dogma
The nullity dogma is a jurisprudential teaching. It states that legal norms that violate higher-ranking law are ex tunc , i.e. void from the start . In principle, it is as if the standard was never enacted.
The nullity dogma applies in principle to formal laws as well as subordinate legal norms, in particular to statutes .
Formal laws
The Federal Constitutional Court can declare a law null and void if it violates constitutional law, in particular if the law violates a fundamental right . The law is then fundamentally null and void.
An exception applies to violations of the general principle of equality in Article 3 (1) of the Basic Law . Here the court only expresses the incompatibility of the law with the Basic Law, but leaves it to the legislature, in accordance with the principle of separation of powers , to enact a lawful norm instead of the defective one, often setting a deadline for eliminating the unlawful condition. A regulation for this transitional period will only be issued by the court as an exception and with restraint .
Subsidiary legal norms
The rejection monopoly of the Federal Constitutional Court according to Art. 100 GG only applies to formal laws. Therefore, the specialized courts (that is, the courts of the ordinary and the special jurisdictions ) can check sub-statutory norms themselves for their compatibility with constitutional law and with formal statutory law. If they discover a violation, they can declare the norm null and void.
The problem here is whether a statute as a whole is null and void if only part of it violates higher-ranking law. The question has been discussed in particular in public law for development plans in which a certain stipulation is illegal in the opinion of the court. In this case, the jurisprudence is based on whether the articles of association still represent a sensible and manageable regulation or whether the articles of association are a uniform and thus indivisible regulation that would be meaningless without the part in question. In the first case, the rest of the statutes should continue to apply, in the second case the nullity of the defective part should cover the statutes as a whole.
An express exception to the nullity dogma for development plans is contained in § 214 , § 215 BauGB : the so-called plan maintenance. According to this, not all procedural and formal errors from which a development plan can suffer justify its nullity, but only very specific ones, which the legislature lists in detail. In addition, errors can only be asserted within a period of one year after their publication.
Administrative file
The nullity dogma only applies to legal norms, not to administrative acts . Administrative acts are to be followed by the citizen, even if they violate the law. Although it follows from Article 20.3 of the Basic Law that the administration must observe law and statute equally, the reverse conclusion from Section 43.3 VwVfG shows that an illegal administrative act is fundamentally effective. There it says that only a void administrative act is ineffective. The person complained of must therefore contest the administrative act before the administration in the objection procedure - unless this is exceptionally dispensable - and if necessary in court and request its cancellation. The initiation of the objection procedure creates 'in principle' suspensive effect, § 80 VwGO . This means that the administrative act may initially not be carried out until the facts have been fully clarified. That is also the reason why the exception to the nullity dogma is constitutional. The contradiction - or if the action unnecessary - carried out must be made within certain time limits, so that the administrative act not in existing power grows.
