Immediate completion

In German administrative law, immediate enforcement refers to the enforcement ( enforcement or other implementation) of an administrative act with burdensome, determinative or legal content prior to its incontestability (so-called final force ).

Immediate execution may in no way be equated with immediate execution . For immediate enforcement see Section 6 (2) of the Administrative Enforcement Act.

In principle, an administrative act with such content may only be carried out if it is incontestable. An administrative act is contestable as long as it can be attacked with an objection and - after the objection has been rejected - with an action for avoidance (cf. § 69 , § 70 , § 74 VwGO ). Until the administrative act is incontestable, the affected citizen is usually protected against execution of the administrative act by the suspensive effect of objection and legal action ( Section 80 (1) VwGO).

The same applies to favorable administrative acts that burden a third party ( administrative acts with double effect ), e.g. B. a building permit that exempts from legally regulated minimum distances to the neighboring property. If the third party (in the example, the neighbor) objects to the favorable administrative act (the building permit) and, if necessary, subsequently files an appeal, the administrative act (the building permit) may not be used for the time being.

The suspensive effect of objection and action for rescission has generally been removed by the federal legislature in the following cases ( Section 80 (2) sentence 1 No. 1 to 3 VwGO) in order to ensure immediate enforcement in the public interest:

when requesting public charges and costs (e.g. development contribution , including municipal taxes )

in the case of orders and measures by law enforcement officers that cannot be postponed (this also includes traffic signs )

in other cases prescribed by federal law or for state law by state law, in particular for objections and complaints by third parties against administrative acts that concern investments or the creation of jobs

in the case of measures to enforce federal laws by state authorities (e.g. setting a penalty payment ), if provided for by the state legislature ( Section 80 (2) sentence 2 VwGO).

In practice, the authority granted to the authorities by Section 80 (2) Sentence 1 No. 4 VwGO is of particular importance in the event of public interest (e.g. passers-by are endangered by a rotten tree that threatens to topple over) or in the overriding interest to order a private person (e.g. competitor for a post, beneficiary of an administrative act that burdens the appellant or plaintiff) for immediate execution. This order can also be made by the objection authority in objection proceedings . In this case, immediate execution requires special justification ( Section 80 (3) VwGO). In this, the special urgency, i.e. H. the need to have to carry out the administrative act before it cannot be contested.

If the administrative act is immediately enforceable by law or by official order, the authority that issued the administrative act or the objection authority can suspend enforcement ( Section 80 (4) VwGO).

The incriminated citizen can also apply to the court that has to decide or should decide on the action for avoidance (court of the main issue) for the granting of interim legal protection . In many larger proceedings (e.g. planning approval procedure ), the legal dispute is shifting more and more into the area of provisional legal protection, since the facts created up to the outcome of the proceedings in the immediate execution influence this outcome or often make it irrelevant for those affected.

literature

Matthias Niedzwicki: From practice: Repeal of the enforceability order vs. Restoring the suspensive effect , in: Juristische Schulung (JuS) 2009, p. 226 f.