Action for failure to act

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

The failure to act is in Germany a special form of commitment proceedings . It only exists in three areas of administrative law , namely in the Administrative Court Code ( VwGO), the Social Court Act ( SGG) and the Financial Court Code (FGO). The action for failure to act is admissible if the administration has not made a factual decision on an application for the issuance of an administrative act or an objection or objection without sufficient reason within a reasonable period of time. The administration is to be deprived of the opportunity to prevent or delay citizens' complaints by waiting for a long time.

If, on the other hand, a requested administrative act is rejected, the obligation suit in the form of a counterclaim for refusal is admissible.

Administrative action for failure to act

In administrative law the action for failure to act according to § 75 VwGO is not a separate type of action . Rather, it refers to the case that the authority does not decide on a permissible objection or application within a reasonable period . As a rule, in accordance with Section 75 sentence 2 VwGO, a period of at least three months from the submission of the application or the raising of an objection is necessary. In the case of the action for failure to act, it is therefore usually a matter of obligation, with which a decision is sought on the main matter or, if the authority has the existing discretion, only a judicial legal opinion to be taken into account. In the latter case, the only aim of the action is to induce the authority to make a decision at all, which should be discretionary. In this case, the obligation to undertake a specific official act is usually not possible.

Pursuant to Section 75 Clause 1 VwGO, if this period has expired, the action is admissible even without a decision in the application procedure or without a decision on the objection. In urgent cases, an interim order according to § 123 VwGO can be considered before the expiry of three months and regardless of an (inactivity) action , with which a provisional regulation can be reached until a final decision on the main matter.

Insofar as Section 42a of the Administrative Procedure Act (VwVfG) intervenes, i.e. the approval is faked if the authority does not act, Section 75 VwGO is irrelevant.

Social judicial action for failure to act

In social law, § 88 SGG is relevant. In contrast to the other jurisdictions, the action for failure to act in social court proceedings is a separate type of action, with which only the factual decision can be enforced, but not a specific content. Accordingly, the action is settled as soon as a factual decision is available. If this is to the detriment of the plaintiff, however, an amendment to the complaint is permissible in accordance with Section 99 SGG, which in this case is regularly considered to be relevant and must therefore be approved by the court.

The waiting period is six months for the notification and three months for the notification of objection; In certain cases, different deadlines apply (e.g. status determination procedure : three months even in the application process, Section 7a, Paragraph 7, Clause 2, SGB IV). The regulation according to which in objection proceedings of the statutory health insurance and the Federal Labor Office the action for inactivity was already admissible after one month has been dropped on January 1, 2002.

If the action is brought prematurely, the action must be dismissed as inadmissible. An exception to the waiting period will only be accepted if the authority has clearly and unequivocally indicated that it will not decide.

In urgent cases, as in administrative court proceedings, an interim order according to § 86b SGG can be considered before the deadline has expired .

Tax court action for failure to act

In tax court proceedings, the action for failure to act is an action for rescission or an action for obligation ( Section 40 FGO ), which, in deviation from Section 44 FGO, is permissible without a completed preliminary procedure ( Section 46 FGO). An objection procedure that has not yet been completed is a prerequisite . However, your aim is not to force the tax office to issue an objection decision. Rather, by inaction, the tax office evades the possibility of correcting its own decision in the opposition proceedings and thus opens the way for the appellant to the tax court . Therefore, it is better to refer to the action for failure to act as an action for annulment or an action for obligation.

Action for rescission as action for failure to act

This action for failure to act is admissible if an objection has been lodged against an administrative act and this objection has not been objectively decided on within a reasonable period of time ( Section 46 FGO). The deadline and the reason are connected here. Not every objective reason can lead to an extension of the deadline. The law prescribes a minimum period of six months, which can also be exceeded for special reasons.

Procedure

In accordance with Section 46 (2) FGO, the tax court sets a deadline for the tax office to decide on the matter in the event of a complaint. If the tax office decides within the deadline, there are two options:

  • the tax office helps and issues the desired administrative act, then the legal dispute is settled in the main matter and the costs are to be charged to the tax office ( § 138 para. 2 FGO),
  • the tax office issues an objection decision. In this case, the action for failure to act becomes an action for avoidance, because the preliminary proceedings are now concluded.

If the tax office remains inactive, however, the court decides on the main matter.

Compulsory action as action for failure to act

The obligation action can also be brought as a failure to act. If an application is rejected and the objection is not processed, a legal action can be taken, although the preliminary proceedings have not been completed. The compulsory action must not be confused with the objection to inaction ( Section 347 (1) sentence 2 AO ). This is given if the tax office does not decide on an application, the action for inaction if it does not decide on an objection. The double inactivity of the tax office is also conceivable, which first allows an objection to inactivity and then an action for inactivity.

Action for failure to act in judicial administrative files

When it comes to the judicial review of judicial administrative files, an action for failure to act before the criminal senate of the higher regional court is permissible according to § 27 EGGVG .

Action for failure to act in the EU

literature

Web links

Individual evidence

  1. ↑ Federal Social Court of December 16, 1976 - 10 RVs 1/76; see. also Leitherer in: Meyer-Ladewig / Keller / Leitherer, SGG, § 88, Rn. 5b (2014)
  2. ↑ BFH of March 7, 2006 , Az. VI B 78/04.
  3. ↑ BFH of April 19, 2007 , Az.VR 48/04.
  4. ↑ BFH of June 28, 2006 , Az.IR 97/05.