Administrative jurisdiction (Germany)

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The administrative jurisdiction is the branch of the German courts , the judicial review of the actions of public administration serves. On the basis of Art. 95 of the Basic Law system of administrative courts of ensuring within their jurisdiction Art. 19 para. 4 of the Constitution demanded verifiability of all public acts . The administrative courts are responsible in the first instance ( Section 45 VwGO ). Since in the 17th century the administrative courts were not staffed with independent judges but with civil servants , the historical designation extraordinary jurisdiction has been preserved. However, this distinction no longer has any meaning, since Art. 92 , 97 GG assigns every jurisdiction personally and objectively independent judges.

Court organization in Germany (macro level)

Jurisdiction

The administrative courts are responsible for public law disputes of a non- constitutional nature ( Section 40 (1) sentence 1 VwGO ). The demarcation to the civil courts of the ordinary jurisdiction and the social jurisdiction is sometimes quite complicated and also controversial. In addition, there for tax disputes tax jurisdictions .

construction

The administrative jurisdiction is structured on three levels. For most administrative court proceedings is the first instance administrative court jurisdiction . The appeal and complaint bodies of the administrative courts are the higher administrative courts (OVG) or administrative courts (VGH) of the federal states. Every federal state now has an OVG or a VGH, which - except in Bavaria, Saxony-Anhalt and the city ​​states - does not have its seat in the state capital , in order to make its independence from the administration spatially clear (for the list of seats see Higher Administrative Court ). Schleswig-Holstein, for example, did not set up its own OVG until 1991; until then the OVG Lüneburg in Lower Saxony was in accordance with Section 3 (2) VwGO is also responsible for the state of Schleswig-Holstein.

The higher administrative courts are the first instance when it comes to checking the norms of statutes , state legal prohibitions of associations and approvals of major technical or transport projects ( Section 47 VwGO).

The Federal Administrative Court with its seat in Leipzig is the revision and appeals authority . The Federal Administrative Court can also be the first instance in disputes relating to insurance supervision and other non-constitutional disputes between the federal government and the federal states.

history

The administrative judiciary is a young branch of the judiciary, because in the feudal structures it was not possible to sue the feudal lords for incorrect behavior. It was only in enlightened absolutism that a distinction was made in state activity between the sovereign function and the state as an economic subject ( tax authorities ). When the state became economically active, it moved on an equal footing with its subjects and submitted to ordinary jurisdiction. If the state acted as a commanding and subordinate, its actions were seen as unjusticiable. Theoretically, this approach was justified by the fact that the state, which is superordinate to the subject in a sovereign function, could not meet the subject as a litigating party again on an equal footing before a court. Rather, it applied to an input being. The departments formerly known as “administrative courts” were special departments of public authorities. Controllers and controlled persons were subject to the same supervisory authorities, so that independent courts did not exist. In addition to the activities of the state as a treasury, the compensation system in the event of expropriations, which in the absence of independent administrative courts was therefore assigned to the ordinary courts, was considered fully justiciable. As a result of this historical development, the state liability law has been withdrawn from administrative jurisdiction and is decided by the ordinary courts. The constitution of the Frankfurt National Assembly of 1848/49 called for an end to the "administration of administrative justice" (Article X, § 182, Paragraph 1). This meant that the administration of administrative justice should be carried out by the ordinary judiciary and no longer by the administrative justice system (sometimes also referred to as camera justice).

The first German administrative court was established by law of October 5, 1863 in the Grand Duchy of Baden . The Prussian Higher Administrative Court was established with the Prussian Administrative Court Act of July 3, 1875. Administrative jurisdiction was introduced in the Grand Duchy of Hesse in 1875, in Württemberg in 1876 and in Bavaria in 1879. The other individual states of the German Empire from 1871 later founded their OVGe or VGHe - the last to which Hamburg, Bremen and the two Mecklenburg belonged, but only in of the Weimar Republic . The lower instance (i.e. today's administrative courts) did not exist. There was also no administrative court with jurisdiction throughout the Reich. Hamburg was the first state to set up both an administrative court and a higher administrative court in accordance with Article 107 of the Weimar Constitution in 1921 . In the other countries this programmatic approach has been slow to take effect. Bremen judged z. B. only with the law of September 14, 1933 a higher administrative court.

An independent administrative judiciary was out of the question during the Nazi era . With the Fuehrer's decree of August 28, 1939, "instead of contesting an order in administrative court proceedings [...] contesting a complaint with the superior authority or the supervisory authority". "With regard to the fundamental significance or the special circumstances of the individual case, the complaints authority [could] allow the administrative court procedure instead of the complaint." A Reich administrative court was only set up on April 3, 1941 by a Führer decree. However, this did not form a higher instance above the higher administrative courts or administrative courts, but instead, for reasons of administrative simplification, replaced the Prussian Higher Administrative Court, the Administrative Court of the State of Austria, the Reichsdienststrafhof, the Reichswirtschaftsgericht, the highest ruling office for assignments, the highest ruling authority for water and soil associations, the Compensation court according to the law on land procurement for the purposes of the Wehrmacht of 1935 and the Reich War Compensation Office . In 1944 administrative jurisdiction was generally abolished.

After the Second World War , the Control Council Act 36 resolved to re-establish the administrative courts.

While this process started in the western zones , it happened only hesitantly in the Soviet Zone . It is true that the Soviet military administration, as a result of the Control Council Act No. 46, issued an order 173 on July 8, 1947, to create new administrative courts in the countries of the Soviet Zone . However, the SED not only considered the separation of powers , but also independent control of administrative action as a “weapon of reaction” and superfluous in a socialist society without conflicting interests. Nevertheless, the GDR constitution of 1949 provided for the institution of administrative courts in Article 138 I and all five state constitutions of the Soviet zone. With a view to the inter-allied agreement, the SMAD urged the implementation of this constitutional mandate. However, an administrative court was only established in Thuringia, Brandenburg and Mecklenburg. The administrative courts that had already been established were abolished when the states were converted into districts in 1952. The law on processing citizens' submissions only provided for informal conflict resolution through petitions .

After 1946 the administrative jurisdiction in the southern German states was placed on a completely new basis through state laws, in northern Germany through ordinance of the British military government with regard to the constitution of the court, the procedure and especially with regard to the admissibility of the administrative judicial process. With the Basic Law, an independent, three-tier administrative judiciary was re-established in the FRG. In 1952 the Federation of German Administrative Judges (BDVR) was constituted. It was not until 1960 that the Administrative Court Code came into force, which established administrative jurisdiction as a fully-fledged independent branch of the judiciary. The decisive innovation compared to the times of the Weimar Republic consisted in the administrative court's overall jurisdiction in public law disputes of a non-constitutional nature ( § 40 VwGO). The administrative legal process was no longer linked to the implementation of enumeratively enumerated opening facts, which usually required a formal administrative act , so that actual administrative action was also accessible to an administrative court review.

Legal finding

In administrative court proceedings, the principle of official investigation applies in Germany (here referred to as the principle of investigation, Section 86 VwGO, Section 76 FGO, Section 103 SGG).

The administrative court procedure is generally chargeable. According to § 188 VwGO, however, some exceptions apply: in youth welfare procedures according to SGB ​​VIII , in procedures for training support according to BAföG and AFBG , in procedures for war victims and severely disabled welfare and in other welfare procedures (e.g. exemption from the Obligation to pay broadcasting fees for recipients of social benefits, but not housing allowance proceedings, controversial in proceedings about the placement of the homeless in emergency accommodation), no fees and expenses are charged.

See also

literature

  • Friedhelm Hufen: Administrative procedural law. 5th edition, Munich 2003, ISBN 3-406-50287-3 .
  • Martini: Administrative procedural law. Systematic presentation in a combination of graphics and text. 3rd edition 2003, ISBN 3-472-05379-8 , p. 36 ff.
  • Rolf Schmidt: Administrative procedural law. 9th edition 2005, ISBN 3-934053-83-1 .
  • Bosch / Schmidt / Vondung: Practical introduction to administrative court proceedings. 9th edition 2012, ISBN 978-3-17-021843-7 .
  • Harald Hofmann, Jürgen Gerke: General administrative law with notification technology, administrative enforcement and legal protection . 10th edition, Stuttgart 2010, Kohlhammer, ISBN 978-3-555-01510-1 .
  • Horst Suckow: General administrative law and administrative legal protection. 13th edition, Cologne 2000, ISBN 3-555-01222-3 .
  • Tettinger / Wahrendorf: Administrative procedural law. 2nd edition, Cologne 2001, ISBN 3-452-24762-7 .
  • Hans-Peter Vierhaus: Right of Evidence in the Administrative Process. CH Beck, Munich 2011, ISBN 978-3-406-62025-6 .
  • Karl-Peter Sommermann , Bert Schaffarzik (Hrsg.): Handbook of the history of administrative jurisdiction in Germany and Europe . Springer-Verlag , Berlin and Heidelberg 2019. ISBN 978-3-642-41234-9

Individual evidence

  1. Werner Frotscher / Bodo Pieroth : Verfassungsgeschichte , 5th edition, Munich 2005, Rn 422.
  2. ^ Ingo Kramer: 75 years administrative court Bremen . In: The Administrative Court of the Free and Hanseatic City of Bremen - Contributions to History , 1999
  3. ^ Matthias Etzel: The repeal of National Socialist laws by the Allied Control Council (1945–1948); Volume 7 of Contributions to the Legal History of the 20th Century, 1992, ISSN  0934-0955 , ISBN 978-3-16-145994-8 , pp. 102-103, online
  4. ^ Felix Mühlberg: Informal conflict management. On the history of the submission in the GDR Chemnitz, Univ.-Diss. without year, p. 70 ff.
  5. Dieter Pohl : Justice in Brandenburg 1945 to 1955. 2001, pp. 59–62
  6. cf. Law on the further democratization of the structure and functioning of state organs in the countries of the German Democratic Republic , Journal of the GDR 1952, pp. 613,614
  7. Maira Mildred Susanne Baderschneider: The citizen as judge: an empirical study of the honorary judge at the general administrative courts. 2010, ISBN 978-3-631-61208-8 , pp. 13-14, online
  8. cf. the list in Section 195 (1) No. 3–6 VwGO in the version of April 1, 1960, Federal Law Gazette I p. 17
  9. Ordinance No. 141 of April 1, 1948, Ordinance No. 165 of September 15, 1948, Ordinance Gazette for the British Zone (VOBl BrZ) 1948, pp. 111, 263
  10. ^ Draft of an administrative court order (VwGO) as well as a law on the restriction of appeal in administrative court proceedings BT-Drs. 3/55 of December 5, 1957, p. 24