Redemption (administrative law)
According to German administrative procedural law, the withdrawal marks the cancellation of an administrative act that was illegal when it was issued , for example through deception or bribery . The conditions are in § 48 Administrative Procedure governed the Federal Government (Administrative Procedure Act). In the individual federal states, there are mostly almost identical regulations in the respective state administrative procedural laws.
From § 48 Abs. 1 S. 1 VwVfG it follows that the withdrawal of an illegal incriminating administrative act of the authority is possible without further ado. According to Section 48 (5) VwVfG, the locally competent authority is responsible for taking back the goods , even if the administrative act was originally issued by another authority.
There are stricter requirements for withdrawing an illegal administrative act that has benefited citizens. Here, the different administration methods right between two types of benefits: justify such cash benefits or divisible kind ( "money power VA") and those other benefits. The most important difference is that, in the case of a cash benefit VA, the withdrawal fails if the addressee has legitimate trust in the existence of the administrative act. His trust is already protected on the "primary level". The situation is different with other privileges: Here the authority is authorized to withdraw the goods without further ado, but has to pay compensation ("secondary level") , provided the citizen has trust worthy of protection . This separation is intended to prevent superfluous payment flows: If protection of legitimate expectations were only guaranteed at the secondary level for a cash benefit VA, this would mean that he would have to return the services provided, but could then immediately demand repayment in the form of compensation. This is to be avoided by the differentiated regulation.
Section 48 (2) sentence 3 VwVfG contains several reasons for which the citizen cannot trust the existence of the administrative act. This catalog also applies to Section 48 (3) VwVfG. According to Section 48 (4) VwVfG, theauthority hasa decision-making period (according to case law ; another opinion sees this as a processing period) of one year.
The withdrawal is a discretionary decision . The authority can withdraw the administrative act in whole or in part as well as with ex nunc or ex tunc effect. The reclaim of a granted service may be made by means of a reclamation and reimbursement notice in accordance with Section 49a VwVfG.
If the prerequisites for a redemption according to § 48 VwVfG are not met, a revocation according to § 49 VwVfG comes into consideration even in the case of illegal administrative acts.
For state aid that violates the implementation prohibition applicable in the notification procedure (Art. 108 (3 ) TFEU ), the effective enforcement of Union law (principle of effectiveness) requires that the national administrative procedural law must not make the reversal impossible. Therefore, in such cases, the regulations on the protection of legitimate expectations and the stipulation of deadlines may not be applied. In addition, the citizen can not refer to a depletion within the framework of § 49a VwVfG .
Parallel provisions in the administrative procedure under social law are Section 44, Tenth Book of the Social Code (SGB X) , Section 45 SGB X and Section 49 SGB X.
In the administrative procedure under tax law, the parallel provisions can be found in § 130 and § 132 AO .
See also
literature
- Mario Martini: The repeal of administrative acts according to §§ 48 ff. VwVfG - an overview (part 1) , legal worksheets (JA) 2012, 10 ff. ( Online )
- Mario Martini: The repeal of administrative acts according to §§ 48 ff. VwVfG - overview of the withdrawal according to § 48 VwVfG (part 2) , legal worksheets (JA) 2013, 442 ff. ( Online )
