Primary legal protection
Primary legal protection means the defense against a violation in a subjective public right . In Germany, it is guaranteed in the fundamental right to effective legal protection under Article 19.4 of the Basic Law, and also under the constitutional complaint law ( Article 93.1 no. 4a of the Basic Law).
Demarcation
In contrast to primary legal protection, secondary legal protection means the generic term for the public-law claims for damages or compensation, in particular the official liability mentioned in Art. 34 GG as a result of an unavoidable or unacceptable violation of the law. The pair of terms describes a dualism that differentiates the general right to eradicate status violations. The division follows the private law distinction between performance or primary claims on the one hand and secondary claims resulting from service disruptions on the other.
Content and scope
The Public Law granted primary legal protection especially in the form of legal challenge and the obligation action , as far as one administrative act or its refusal or omission unlawful and the plaintiff thereby violating his rights is ( § 113 para. 1, para. 5 Code of Administrative Procedure ). Possible secondary claims for damages result from state liability law .
The classification gained importance in particular due to the principle of “primacy of primary legal protection” developed by the Federal Constitutional Court in the judgment on wet gravel . According to this, the citizen has no right to choose to tolerate violations of the law by the state and then to demand compensation - the rule of law " tolerate and liquidate " applied in common law - but must primarily follow the means of primary legal protection , for example an application for an interim order Section 123 VwGO to take action against the state act itself before it may demand monetary replacement within the framework of secondary legal protection ( Section 839 (3) BGB in conjunction with Article 34 GG).
Primary legal protection has a clearing effect. In the event of a successful contestation suit, the administrative act is canceled by the court ( Section 113 (1) VwGO). Since the secondary legal protection is directed towards the payment of damages and thus only compensates for the consequences of the intervention, it is subsidiary to the primary legal protection for reasons of lower legal protection effectiveness .
Constitutional guarantee
It is the legislator's task to shape the legal protection system and to ensure that there is effective legal protection for the individual legal seeker .
The legislature has a margin of appreciation and assessment, which relates to the assessment of the advantages and disadvantages for the goods concerned as well as the weighing of interests with a view to the consequences for the various legally protected interests. When awarding public contracts , it is at the discretion of the legislature to prefer the client's interest in a speedy execution of the measures and that of the successful applicant in immediate legal certainty over the unsuccessful bidder's interest in primary legal protection and to regularly limit the latter to secondary legal protection. If the unsuccessful bidder's interest in effective primary legal protection could be rated as less important and the private and public interests affected by such primary legal protection on the other hand could be assessed as more important, it is constitutionally unobjectionable that the legislature considers the secondary legal protection available in the general legal system to be sufficient and has not taken any special precautions to ensure the feasibility of primary legal protection, for example through an obligation to inform the unsuccessful bidder before the contract is awarded.
Individual evidence
- ^ Wilfried Erbguth : Primary and Secondary Legal Protection in Public Law , in: Constitutional Law and Simple Law - Constitutional Jurisdiction and Specialized Jurisdiction. Primary and secondary legal protection in public law. Reports and discussions at the conference of the Association of German Constitutional Law Teachers in Würzburg from October 3 to 6, 2001 , p. 221 ff.
- ↑ Peter Axer: Primary and secondary legal protection in public law . DVBl 2001, 1322
- ^ Jörn Ipsen : General administrative law. 9th edition, 2014, p. 319, marginal number 1239
- ↑ Federal Constitutional Court, judgment of July 15, 1981 - Az .: 1 BvL 77/78 = BVerfGE 58, 300
- ^ Wolfram Höfling : Primary and Secondary Legal Protection in Public Law , in: Constitutional Law and Simple Law - Constitutional Jurisdiction and Specialized Jurisdiction. Primary and secondary legal protection in public law. Reports and discussions at the conference of the Association of German Constitutional Law Teachers in Würzburg from October 3 to 6, 2001 , pp. 260 ff., 278
- ↑ Federal Court of Justice, judgment of November 7, 1996 - Az .: III ZR 283/95
- ↑ BVerfG, decision of June 13, 2006 - 1 BvR 1160/03
- ↑ BVerfG, decision of March 14, 2006 - 1 BvR 2087/03 u. a., EuGRZ 2006, pp. 159, 167
