Compulsory action

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The obligation action is a type of action under the German Administrative Court Code (VwGO). With this, the plaintiff seeks the condemnation of the authority to issue a rejected or omitted administrative act ( Section 42 (1) 2nd case VwGO). The compulsory action is thus a performance action .


The unsuccessful implementation of preliminary proceedings in accordance with §§ 68 ff. VwGO is fundamentally necessary for the admissibility of the obligation action. If the authority also rejects the requested decision in the objection procedure , the obligation suit in the form of a counterclaim for refusal is admissible. If, on the other hand, it does not make a decision on an application or objection within a period of three months without sufficient reason, an obligation action in the form of an action for failure to act ( Section 75 VwGO) comes into consideration.


According to Section 113 (5) VwGO, the legal action is justified if the rejection or omission of the administrative act is unlawful and the plaintiff's rights are thereby violated.

The refusal or omission is unlawful if the plaintiff has a claim against the authority to have the requested administrative act ( Section 113 (5) sentence 1 VwGO) or a right to a judgment free of discretion ( Section 113 (5) sentence 2 VwGO).

Saying maturity of a thing means that the court is a final decision on the adoption of the administrative act capable.

The decisive point in time for assessing the factual and legal situation is the point in time of the last oral hearing in the case of an action for obligations. In the case of an action for rescission , however, the point in time of the last decision by the authorities is fundamental, ie the notification of the objection or the initial decision if the preliminary proceedings are dispensable.

Judicial decision

If the coveted administrative act is a binding decision , the court orders the authority to issue the desired administrative act. An execution judgment is issued , Section 113 (5) sentence 1 VwGO. However, if the authority has discretion in the coveted administrative act , the court may not simply replace the administrative discretion with its own decision. Rather, it obliges the authority in a decision ruling pursuant to Section 113 (5) sentence 2 VwGO to make a decision free of discretion, taking into account the legal opinion of the court.

Special administrative jurisdiction

The Social Court Act also sees the obligation action in Section 54 (1) sentence 1 3rd SGG case in the form of a refusal action and in Section 54 (1) sentence 1 4th case SGG i. V. m. Section 88 SGG in the form of an action for failure to act . The tax court regulations contain a corresponding regulation in Section 40 (1) FGO.

The deadlines that have to be awaited before filing an action for failure to act are regulated in the SGG and the FGO, however, differently from the VwGO. If an application is not approved, the deadline is Section 88 (1) SGG not just three but six months. In accordance with Section 46 (1) FGO, the six-month period applies both to the failure of a decision on an application and to a failure to give a decision on an out-of-court remedy ( objection ).


  • introduction
    • Friedhelm Hufen: Administrative procedural law. 8th edition. Beck Verlag, Munich 2011, ISBN 978-3-406-60981-7 , pp. 266-278; 416-424.
    • Martini, Administrative Process Law, Systematic Representation in Graphics-Text Combination, 3rd edition 2003, p. 36 ff., ISBN 3-472-05379-8
  • Practice comments
    • Kopp / Schenke, Administrative Court Regulations - Commentary, 14th edition 2005, § 42 Paragraph 1, ISBN 3-406-49876-0
    • Redeker / v. Oertzen, Administrative Court Regulations - Commentary, 14th edition 2004, § 42 Paragraph 1, ISBN 3-17-018041-X