Non-disclosure period
In German administrative and state organization law, the period of secrecy , or also period of secrecy , is understood to be the period of time after which a decision to be agreed between different parties is deemed to have been adopted if neither party objects.
application
The non-disclosure period is mostly used in larger bodies as part of an agreed coordination procedure, e.g. B. in the so-called circulation process . The circular procedure with a non-disclosure period means a relief for the applicant for a matter to be voted on (e.g. a regulation or financial planning), but also often a compromise - if B. follows a failed direct resolution (due to late submission of documents, temporary lack of expertise in the committee, reference to small changes to the resolution proposal to a group of participants ...).
Legitimacy problem
The disadvantage, if not the decisive shortcoming of the period of secrecy, lies in its fundamentally problematic democratic legitimacy , in the core of the lack of express consent of those involved, as the following example of the Federal Government shows.
Example - The procedure practiced by the federal government in the late 1980s
A practical application procedure has become known through a legal dispute that reached as far as the Federal Constitutional Court (see following section). In the resolution, the circulation procedure practiced to date with a period of confidentiality by the federal government is documented as follows:
»If the responsible minister of the ministry considers a resolution in the circulation procedure to be sufficient, he notifies the head of the Federal Chancellery and the other federal ministers in the letter to the cabinet proposal in accordance with the practice of the federal government . The head of the Federal Chancellery or the Federal Chancellor decides - if necessary even without the suggestion of the ministerial minister - whether the resolution should be brought about by circulation. The Federal Ministers are then informed in writing by the Head of the Federal Chancellery that the above-mentioned cabinet matter should be resolved in a circular procedure and that the Chief of the Federal Chancellery assumes the consent of the Federal Ministers if an objection is not raised in writing within the set deadline. If there is an objection because of the procedure or the matter, the decision-making process has failed. If no objection is raised, the head of the Federal Chancellery will inform the Federal Ministers that the relevant decision has been taken. "
Jurisprudence
In the Samarra case, which dragged on from the mid-1980s to the mid-1990s, the circulation procedure established by the federal government with a period of secrecy became a dispute before the Federal Constitutional Court. Previously, the plaintiff, who saw himself unjustifiably affected by an ordinance issued by the federal government, had won the right before the Hessian Finance Court , the Darmstadt Administrative Court and the Hessian Administrative Court in Kassel. However, the Federal Administrative Court ruled on October 17, 1991:
»The circulation procedure practiced by the Federal Government when issuing statutory ordinances, in which the head of the Federal Chancellery forwards the draft resolution of the lead minister to the other federal ministers with the note that if no objection is made within a certain period of time, consent is deemed to be given, is in accordance with the Federal Government's rules of procedure permissible and is in accordance with the constitution. "
The constitutional complaint directed against this was partially successful on October 11, 1994. The constitutional judges criticized the fact that no quorum supporting the decision was discernible in this procedure . However, the challenged ordinance was not repealed because the deficiency was not evident due to the longstanding state practice in the federal government . However, this does not apply to future resolutions. A quorum must be proven here.
Individual evidence
- ↑ Der Spiegel: Expensive Silence , 39/1991.
- ↑ a b BVerfG, decision of October 11, 1994, Az. 1 BvR 337/92, BVerfGE 91, 148 - circulation procedure.
- ↑ BVerwG, judgment of October 17, 1991, Az. 3 C 45.90, full text .
