Administrative procedural law (Germany)

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In Germany, administrative procedural law is a field of law that deals with legal proceedings before the administrative courts . It is largely regulated in the Administrative Court Code (VwGO), which is divided into five parts. The VwGO, however, only represents a partial regulation. If no provisions are made in it, the procedure is otherwise regulated in accordance with Section 173 VwGO by the Courts Constitution Act (GVG) and the Code of Civil Procedure (ZPO).

Judicial system

Part I of the VwGO contains provisions on jurisdiction and composition of the administrative courts and thus regulates the court constitution. These rules are supplemented by the subsidiary applicable provisions of the GVG.

§ 1 VwGO emphasizes something that is taken for granted today, but which can historically be explained by the fact that for a long time the review of administrative decisions was left to the administration itself:

Administrative jurisdiction is exercised by independent courts separate from the administrative authorities.

The provision guarantees legal protection before the courts through a judicial authority that is independent of the rest of the state . It thus represents a simple legal expression of the guarantee of effective legal protection of Art. 19 of the Basic Law (GG), according to which the citizen must have reasonable legal recourse against state action that encroaches on his rights. Furthermore, Article 95 paragraph 1 of the Basic Law presupposes the existence of administrative jurisdiction as an independent jurisdiction.

Establishment of the administrative judiciary

Seat of the Federal Administrative Court in Leipzig

According to § 2 VwGO the administrative jurisdiction is divided into several levels. At the first level are the administrative courts, which regularly represent the first instance for legal disputes. The second level is followed by the higher administrative courts , one of which exists in each federal state. Both types of courts are courts of the federal states. In some federal states, the higher administrative courts are referred to as administrative courts for historical reasons. The Federal Administrative Court (BVerwG), one of the five highest federal courts, is at the last level . It has its seat in Leipzig in the former building of the Imperial Court . According to § 5 VwGO, the administrative court forms chambers for the processing of legal disputes , which consist of three professional and two honorary judges . In accordance with Section 6 VwGO , a chamber should transfer disputes of low complexity to a single judge for decision. According to Section 9 VwGO , the Higher Administrative Court consists of senates that are made up of at least three professional judges, and in some countries also two full-time or honorary judges. Senates also exist at the Federal Administrative Court. These are manned by five professional judges in accordance with § 10 VwGO.

Legal status of the administrative judge

The administrative judge is independent according to Art. 97 GG. Therefore, he is not bound by instructions from other sovereigns. According to § 15 VwGO, an administrative judge is appointed for life and on a full-time basis. Exceptions to this are the part-time judge ( § 16 VwGO) as well as judges on probation by order or on a temporary basis, who are only allowed to perform selected tasks in the court ( § 17 VwGO). Special regulations also apply to honorary judges ( § 19 - § 34 VwGO).

Representatives of the public interest

As a special feature of the administrative process, the BVerwG has a representative of the public interest in accordance with Section 35 VwGO, who is “established” at the Federal Ministry of the Interior . State law can also appoint representatives of the public interest for the administrative and higher administrative courts, Section 36 VwGO. This can represent the state or state authorities in the process. Such a representative exists in Bavaria , Mecklenburg-Western Pomerania , North Rhine-Westphalia , Rhineland-Palatinate and Thuringia .

General admissibility requirements for an administrative judicial remedy

The VwGO regulates numerous legal remedies. For such a success to be possible, it must be permissible . With regard to their admissibility requirements, the legal remedies show some parallels.

Schematic representation of the general admissibility requirements

The following are the general requirements for the admissibility of an administrative judicial remedy, specifying the corresponding provisions of procedural law:

  1. German jurisdiction.
  2. Opening of administrative legal channels.
  3. Local, factual and instanced jurisdiction of the court, § 45 - § 53 VwGO.
  4. Permissible form of legal protection.
  5. Right of action, Section 42 (2) and Section 47 (2) sentence 1 VwGO.
  6. Participation, process and postulation skills, § 61 , § 62 and § 67 VwGO.
  7. Proper filing of legal action, § 81 , § 82 VwGO.
  8. No other lis pendens, § 17 paragraph 1 sentence 2 GVG.
  9. General need for legal protection.

Access to German jurisdiction

The German jurisdiction is usually responsible for matters in which German authorities are involved. The situation is different, however, if a diplomatic mission ( Section 18 GVG) or a consular mission ( Section 19 GVG) is involved. Due to their extraterritoriality under international law, these are not subject to German jurisdiction.

The jurisdiction is still removed from interception measures under the Article 10 Act, as well as the results of a committee of inquiry ( Article 44, Paragraph 4, Clause 1 of the Basic Law) and statements by a member of the Bundestag that are protected by his indemnity ( Article 46, Paragraph 1 of the Basic Law).

Opening of administrative legal channels

In order for the administrative judiciary to be able to decide on a legal dispute, the administrative judicial process must be opened for it.

Intrusive special assignment

The opening of administrative legal channels can result from an urgent special assignment. This is a special regulation that expressly assigns certain disputes to the administrative courts. These can be found, for example, in civil service law , for example in Section 126 (1) of the Federal Civil Service Act and Section 54 (1) of the Civil Service Status Act . These norms assign civil servant disputes to the administrative courts. Further special allocations are provided in Section 6 (1) of the Environmental Information Act and Section 9 (4) of the Freedom of Information Act , which relate to information claims against authorities .

General clause § 40 paragraph 1 sentence 1 VwGO

If there is no imposing special allocation, the opening of administrative legal channels is based on the general clause of Section 40 (1) sentence 1 VwGO. According to this, the way to administrative jurisdiction is given if the dispute is a public-law dispute of a non-constitutional nature .

A public-law dispute is characterized by the fact that the norm that determines the dispute belongs to public law . The decisive factor in the dispute is the norm whose direct legal consequence is disputed. According to the special law theory prevailing in jurisprudence, this is subject to public law if it only entitles or obliges a public authority in its sovereign function. This is the case, for example, with authority norms of police law , which only allow the police authorities to intervene in the rights of others.

A dispute in which there is no double constitutional immediacy is non-constitutional. At this negative condition, it lacks appropriate to constitutional bodies on rights and obligations arguing from the Constitution. This applies, for example, to an intra- parliamentary dispute over parliamentary rights . Such a dispute falls within the competence of the constitutional judiciary .

The assessment of a dispute as being under public law which is not based directly on the application of a legal norm or which can be based on both private and public law norms raises practical problems. This applies in particular to the area of performance management and real files . In such cases, the opening of administrative judicial channels can result from the factual context or the purpose of state action. For example, a statement by a public official constitutes a dispute under public law if it falls in a sovereign context. A ban on a public institution creates a dispute under public law if it serves to preserve the public functional purpose of the institution. For the classification of subsidies and access to public facilities , the two-stage theory was developed, according to which the decision on the grant is always public law, but the design of the grant can be both public and private law.

Finally, the dispute cannot be legally assigned to any other legal process. Such a restrictive special allocation contains, for example, Section 40 (2) VwGO for expropriation compensation and for claims arising from official liability . For historical reasons, these fall within the jurisdiction of the ordinary courts . The same applies in accordance with Section 23 (1) sentence 1 of the Introductory Act to the Courts Constitution Act for disputes about criminal investigative measures. Further urgent special allocations are contained in Section 33 of the Finance Court Code and Section 51 of the Social Court Act , which assign certain public-law disputes to financial and social jurisdiction .

Jurisdiction of the court

The local and factual jurisdiction of the administrative courts is regulated in § 45 - § 53 VwGO. It corresponds to the structure of administrative jurisdiction.

The local jurisdiction is based on § 52 VwGO in connection with the respective implementation laws of the states.

The factual jurisdiction determines which court - i.e. administrative court, higher administrative court or federal administrative court - is responsible for a dispute in the first instance. According to § 45 VwGO, this is basically the administrative court. The Oberverwaltungsgericht prepared in accordance with § 47 VwGO in the normal control procedures and according to § 48 VwGO at selected large projects and in association prohibitions a state authority, the input instance. Further, it is according to § 46 VwGO for remedies against decisions of the administrative court responsible. The Federal Administrative Court is the first instance for certain proceedings, such as association bans by the Minister of the Interior . In addition, it is responsible for processing revisions in accordance with Section 49 VwGO .

Selecting the wrong remedies and the jurisdiction of a court, however, result in accordance with § 17a not paragraph 1 GVG to dismiss, but for assignment to the competent court of its own motion . This assignment is binding on the court to which the dispute is assigned.

Permissible form of legal protection

The VwGO standardizes different forms of legal protection. According to § 88 VwGO , which is permissible in individual cases depends on the plaintiff's request.

Legal standing

According to Section 42 (2) VwGO, the plaintiff must assert in his action that his rights have been violated by the measure that he is attacking in court. This requirement is to avoid popular complaints : The administrative judicial protection is aimed primarily at the protection of individual rights, not, however, a general review of legality. Therefore, only those who may be violated in their own rights should be able to take legal action against a measure.

According to its systematic position, the condition of standing only relates to certain types of action. According to the prevailing view in jurisprudence, however, it is being transferred to other forms of legal protection as a general principle of administrative procedural law.

The right to bring an action exists according to the prevailing possibility theory if the plaintiff conclusively demonstrates that his own rights have been violated. This must at least appear possible, so it must not be obviously excluded. The detailed requirements for the right of action depend on the respective form of legal protection.

Participation, process and postulation skills

According to Section 63 VwGO, potential parties to the proceedings are the plaintiff, the defendant, the party summoned and the representative of the public interest. According to Section 65 (1) VwGO, the person whose rights may be affected by the decision can be included in a process. A supplementary cargo is required in accordance with Section 65 (2) VwGO if the decision must be made uniformly towards you. This applies, for example, if a builder and his neighbor argue with the building authorities about the legality of a building permit .

According to § 121 VwGO, the court decision binds all parties involved.

The admissibility of the action presupposes that the parties involved are capable of participating. According to § 61 VwGO, these are natural and legal persons as well as associations , insofar as they are entitled to a right. According to this, for example, a civil law company and a staff council are eligible. The states can also determine by state law that authorities are capable of participating. This has been done extensively in Brandenburg, Mecklenburg-Western Pomerania, North Rhine-Westphalia and Saarland, and limited in Lower Saxony, Saxony-Anhalt, Schleswig-Holstein and Rhineland-Palatinate. Animals are not able to participate .

Process-capable is someone who can take process actions. This is according to § 62 paragraph 1, Code of Administrative Procedure on legal capacity and limited to legal capacity recognized for the proceeding as competent. Associations of persons are represented by their legal representative in accordance with Section 62 (3) VwGO . For a municipality, this is the mayor , for example . If a participant lacks process capability, he must be represented by a process-capable representative .

According to Section 67 (1) VwGO, the ability to postulate is the right to conduct a legal dispute yourself. Before the administrative court, postulation and litigation skills match. In contrast, in accordance with Section 67 (4) sentence 1 VwGO, those involved must be represented by an authorized representative before the Higher Administrative Court and the Federal Administrative Court.

Proper filing of a lawsuit

Pursuant to Section 81 (1) VwGO, a complaint must be made in writing or to be recorded by the clerk of the court registry. According to Section 82 (1) VwGO, it must name the plaintiff, the defendant and the subject of the action. It should also contain an application and a reason.

General need for legal protection

The general need for legal protection exists if the plaintiff has a legitimate interest in a court decision. This is an unwritten process requirement. Its presence is indicated by the presence of legal standing. It does not apply if the plaintiff can more easily achieve his goal in another way, the lawsuit is unsuitable for this purpose or the lawsuit appears to be abusive. Finally, the right to sue can be forfeited due to the passage of time . This is of practical importance in neighboring disputes in public building law .

Correct respondent

Section 78 (1) number 1 VwGO stipulates that an action isto be directedagainst the legal entity of the authority whose conduct is being disputed, i.e. against a legal person under public law.

It is controversial in jurisprudence how the content of § 78 paragraph 1 number 1 VwGO is to be interpreted in terms of procedural law. According to one view, represented in particular by the case law, Section 78 (1) No. 1 VwGO regulates the passive legitimation , hence a question of the justification of a legal remedy. According to this opinion, however, a dismissal of the action is considered inadmissible if instead of the authority to be sued in some federal states, the legal entity is used and the name of the defendant is not changed, even on information from the court ( Section 82 (2) VwGO). In the opposite case, in which the authority is sued instead of the legal entity to be sued, the action cannot be inadmissible because Section 78 (1) No. 1 VwGO expressly allows the authority to be specified instead of the legal entity. According to the prevailing view in legal doctrine, Section 78 (1) No. 1 VwGO, on the other hand, does not make a statement on passive legitimation, but on passive litigation authority , which is a precondition for admissibility.

Types of lawsuits

The VwGO standardizes several types of action, which can be assigned to the categories of structural , performance and declaratory actions that also exist in other procedural rules.

Through an objective accumulation of claims according to § 44 VwGO several claims for claims , including those of different types, can be combined, provided that they concern the same defendant, there is a factual connection and the same court is also competent in the respective cases.

Action for annulment

The contestation action according to § 42 Paragraph 1 Alternative 1 VwGO is aimed at the repeal of an administrative act. Therefore, it is a legal action.

According to the addressee theory, the right of a person to whom an onerous administrative act is addressed to bring legal action arises from the addressing, as this encroaches on the basic right to general freedom of action ( Art. 2 Paragraph 1 GG). If the plaintiff is not an addressee, he has the right to sue if the administrative act possibly violates a legal norm that serves to protect the plaintiff .

The contestation action is justified in accordance with Section 113 (1) sentence 1 VwGO if the challenged administrative act is unlawful and violates the plaintiff's rights. The relevant point in time for assessment is basically the point in time of the last decision by the authorities. If an objection notice has been issued, its issuance represents the relevant point in time, otherwise that of the administrative act.

If the action is admissible and well-founded, the court cancels the administrative act. If the administrative act has already been carried out, the plaintiff can apply as an annex to the action for avoidance, in accordance with Section 113 (1) sentence 2 VwGO, for the consequences of the execution to be eliminated. This can, for example, demand that the thing obtained as a result of a successfully contested security be surrendered to the plaintiff.

Compulsory action

The action for an obligation pursuant to Section 42 Paragraph 1 Alternative 2 VwGO is aimed at the adoption of an administrative act. It thus represents a performance suit.

The obligation action is justified in accordance with Section 113 (5) VwGO if the plaintiff is entitled to a remission of the administrative act. The legal situation at the time of the last oral hearing is decisive.

The consequences of the existence of the claim depend on whether the dispute is ready for a decision . This applies if it has been clarified in the process that all requirements for issuing the administrative act are met. In this case, the court obliges the defendant to issue the administrative act by making a judgment. Otherwise, a ruling is issued which obliges the defendant to decide on the adoption of the administrative act, taking into account the opinion of the court.

Declaratory action

The declaratory action according to § 43 VwGO serves to determine the existence or non-existence of a legal relationship. It can also be used to determine whether an administrative act is null and void. A legal relationship is a legal relationship that results from the application of public law norms to a situation. A declaratory action is often used to determine whether a project requires approval, such as the operation of a business.

The admissibility of a declaratory action presupposes that the plaintiff has a legal interest in the judicial determination. There is sufficient determination interest if the plaintiff has a legal, economic or non-material interest in the determination.

The declaratory action is well founded if the plaintiff's request is legally valid.

According to Section 43 (2) VwGO, the declaratory action is subsidiary to other types of action, since a declaratory judgment does not constitute an enforceable title. Therefore, the plaintiff lacks the need for legal protection in relation to the declaratory action if he can achieve his goal with other types of action.

Continuation declaratory action

With the action for a declaration of continuation pursuant to Section 113 (1) sentence 4 VwGO, the plaintiff aims, as with the action for avoidance, to review an administrative act for its legality. It is permissible if the administrative act during a court case settled . This eliminates the need for legal protection of the avoidance action, so that it becomes inadmissible. The plaintiff can declare the dispute settled or pursue their original claim in the process by converting their lawsuit to a continuation action. With this he can establish that the attacked administrative act was unlawful and violated his rights. This allows him to get the fruits of his litigation.

The admissibility of an action for a continuation of a declaratory judgment requires that the plaintiff has a legitimate interest in the declaration, despite the fact that it has been settled. The case law recognizes this in several case groups: the risk of repetition, the interest in rehabilitation, the prejudice effect for a later official liability claim and a serious encroachment on fundamental rights.

The action for a continuation of the declaratory judgment applies in the same way if the action is dealt with before the action is brought as well as if a request for an obligation is dealt with.

General action suit

The general action for benefits is not expressly regulated in the VwGO, but is assumed to exist in several places, for example in Section 43 (2) VwGO and Section 111 VwGO. The performance suit is based on an act or omission by the administration that does not constitute an administrative act. It is used, for example, to pursue claims for the omission of defamatory statements or for the payment of money.

The action is well founded if the plaintiff has a claim to the coveted act or omission.

Norm control

With an application for norm control according to § 47 VwGO a subordinate legal norm is checked for its legality. In every federal state, statutes according to the building code, such as zoning plans, can be attacked through a norm control . It is only permissible against other norms if state law so determines.

The request is justified if the challenged standard is illegal. This can result from the fact that there is no basis for authorization, the standard was issued by an incompetent body, a procedural error occurred or higher-ranking law was violated.

Procedure

Part II of the VwGO contains provisions on proceedings in court.

Procedural principles

The administrative court procedure is governed by the official investigation principle standardized in Section 86 (1) VwGO . This differs from civil court proceedings, in which the principle of submission applies, i.e. the parties determine through their submission which facts the court bases its decision on. According to § 86 paragraph 3 Code of Administrative Procedure, the court is obliged the parties to state his opinion and special circumstances indicate . Only to the extent that the provisions of the Code of Civil Procedure are compatible with the principle of official investigation, they are applicable in the administrative process in accordance with Section 173 VwGO.

According to § 88 , § 92 VwGO, the parties determine the subject matter. The disposition principle therefore applies .

According to Section 101 (1) VwGO, the court generally decides following an oral hearing .

According to section 96 (1) sentence 1 VwGO, the principle of immediacy continues to apply .

In accordance with § 55 VwGO in conjunction with § 169 sentence 1 GVG, the oral hearing generally takes place in public .

Special features for avoidance and obligation actions

The eighth section of the VwGO standardizes several special features for the avoidance and the obligation action.

Preliminary proceedings

In the case of lawsuits with which an administrative act is contested or an authority is to be obliged to issue an administrative act, preliminary proceedings (also: objection proceedings) must first be carried out in accordance with Section 68 (1) sentence 1 VwGO. In the preliminary proceedings, an authority checks an administrative act for its legality and expediency. This procedure has three main purposes: the self-regulation of the administration, the relief of the courts and the offer of an additional possibility of legal protection for the citizen.

The preliminary proceedings are initiated according to § 69 VwGO by filing an objection to an administrative act at the authority that issued it, i.e. at the exit authority. According to Section 80 (1) VwGO, this basically has suspensive effect, i.e. it inhibits the enforceability of the administrative act. If the appellant requests the adoption of an administrative act, the appeal is directed against the negative decision of the authority.

If the objection is admissible and well-founded - the prerequisites for this essentially correspond to those of the corresponding type of complaint - the exit authority will remedy it in accordance with Section 72 VwGO by complying with the objector's request. Otherwise, it submits the objection in accordance with Section 73 (1) sentence 2 number 1 VwGO to a higher authority, which decides on it by means of an objection notice. This is an administrative act. In certain cases, the exit and objection authorities are the same.

The objection procedure has been abolished in some federal states, for example in North Rhine-Westphalia , Bavaria and Hesse . The aim of the federal states is to cut red tape and save costs.

The constitutional admissibility of the preliminary proceedings was perceived as problematic in jurisprudence because the federal legislature thus also makes regulations on administrative proceedings before state authorities. However, these concerns do not materialize: The federal legislature has made use of its legislative power under Article 74, Paragraph 1, Number 1 in conjunction with Article 72 of the Basic Law and has also regulated the preliminary procedure as an annex competence .

Term of action

According to Section 74 (1) sentence 1 VwGO, the action for annulment is subject to a time limit. According to this, the action for annulment must be filed within one month of the notification of objection being served. If preliminary proceedings are unnecessary, the period in accordance with Section 74 (1) sentence 2 VwGO begins with the announcement of the administrative act .

According to § 74 Paragraph 2 VwGO, the time limit applies accordingly to the obligation action. If there is no preliminary procedure, the period begins when the application is rejected.

Provisional legal protection

In addition to filing a lawsuit, an application for interim legal protection can be considered in urgent cases. This serves to realize the guarantee of effective legal protection from Article 19 paragraph 4 of the Basic Law. On the one hand, provisional legal protection can prevent a state of affairs from being created through legal action that cannot be corrected by a later judgment, for example by executing an administrative act, until the dispute has been resolved. On the other hand, it makes it possible to obtain a court decision in time-critical situations.

Application according to §§ 80-80b VwGO

An application according to § 80 paragraph 5 sentence 1 VwGO comes into question in contesting situations.

According to Section 80 (1) VwGO, objections and actions for rescission generally have suspensive effect. According to the prevailing view in jurisprudence, this has the consequence that the administrative act cannot be carried out during the procedure, i.e. neither rights nor obligations can be derived from it.

However, § 80 paragraph 2 sentence 1 VwGO names certain cases in which the suspensive effect does not exist. This applies if an authority requests public charges or costs . Furthermore, legal remedies against an order or measure by a police officer that cannot be postponed , such as a dismissal , have no suspensive effect. This regulation is applied analogously to traffic signs . Furthermore, more specific specialist laws can make provisions to eliminate the suspensive effect. A particularly important case in practice is, for example, Section 212a of the Building Code , which relates to the challenge of a building permit. Further regulations are contained in Section 54 (4) of the Civil Service Status Act and Section 126 (4) of the Federal Civil Service Act for disputes under civil service law . Finally, an authority that issues an administrative act can order that it be carried out immediately if a particular interest so requires.

The regulations on the application for de facto enforcement apply analogously. This happens if a participant carries out an administrative act, although an appeal with suspensive effect has been lodged. In this case, a court can determine that there is a suspensive effect.

function

If there is no suspensive effect, from the plaintiff's point of view there is a risk that the administrative act will be carried out during the contesting process, so that a court judgment would come too late to assert his interest. Therefore, he has an interest in preventing the enforceability. He can achieve this by, in addition to his legal remedy against the administrative act concerned, in accordance with Section 80 (5) sentence 1 VwGO, applying for an order or restoration of suspensive effect for his legal remedy. If the suspensive effect no longer applies by law, the applicant requests the order, otherwise restoration.

admissibility

An application according to Section 80 (5) sentence 1 VwGO is permissible if the applicant seeks to contest an administrative act that is not final and against which an appeal has no suspensive effect. In accordance with Section 42 (2) VwGO, authorization to apply is still required. In cases under Section 80 (2) sentence 1 number 1 VwGO, according to Section 80 (6) sentence 1 VwGO, the applicant must unsuccessfully apply to the authority to suspend enforcement before submitting the application.

Justification

An application in accordance with Section 80 (5) sentence 1 VwGO is justified if the applicant's suspensive interest outweighs the public enforcement interest. This is based on a balancing of interests, the focus of which is the chances of success of the main thing: If the administrative act turns out to be illegal on summary examination, the suspensive interest prevails, since there is no public interest in carrying out an illegal administrative act.

If the suspensive effect according to § 80 paragraph 2 sentence 1 number 4 VwGO does not apply because the authority orders this, it must justify according to § 80 paragraph 3 VwGO why immediate enforceability is necessary. The authority must argue on the basis of the respective case; formulaic reasons are not enough.

If the application concerns an administrative act based on Union law, the interest in effective legal protection collides with the interest in the enforcement of Union law. According to the case law of the European Court of Justice , an administrative court can grant an application if there are serious doubts about the legality of the norm, the legal dispute is submitted to the Court of Justice and the applicant cannot be expected to wait for the decision of the European Court of Justice.

Administrative act with third party effect

§ 80a VwGO contains special provisions if an administrative act is contested that favors one person and burdens another. This applies, for example, to the building permit, which allows the building owner to undertake a building project that affects his neighbors. In accordance with Section 80 (3) sentence 1 VwGO in conjunction with Section 80 (5) sentence 1 VwGO, the latter can apply for the contestation of the building permit to have suspensive effect.

Application according to § 123 VwGO

In other litigation situations, the plaintiff can apply in accordance with Section 123 (1) VwGO that a court provisionally settles a matter by means of an interim order.

The application according to § 123 VwGO is of particular practical importance, for example in the case of civil service law competitor lawsuits . The application aims to have the court give up the authority to leave the office vacant until the main issue has been decided. Due to the intended preservation of the status quo, this is a security order. The regulation, on the other hand, aims to temporarily expand the applicants' legal framework, for example through provisional admission to a course of study.

An application according to Section 123 (1) VwGO is justified if the applicant substantiates a claim to an order and a reason for an order in accordance with Section 123 (3) VwGO, Section 920 (2), Section 294 ZPO. The right to order is the substantive law that the applicant mainly wants to enforce, such as an injunction . The main thing is to examine the chances of success. A reason for an order exists if the matter is particularly urgent. In the case of the security order, this applies if a change in the status quo can lead to the plaintiff not being able to enforce his rights in the main or only with difficulty. If the applicant requests the issue of a regulation, there is a need for urgency if the provisional regulation is necessary to avoid disadvantages.

In principle, the issuance of the interim order must not lead to the main decision being anticipated. This follows from the fact that the final clarification of the legal dispute should only take place in the main matter. However, this principle is limited by the guarantee of effective legal protection: in certain cases an interim order cannot be issued without first anticipating the main issue. In such cases, anticipation is exceptionally permissible.

Application according to § 47 Paragraph 6 VwGO

Pursuant to Section 47 (6) VwGO, a court can issue an interim order within the framework of a regulatory review application.

The admissibility of such an application essentially depends on the admissibility of the norm control application. However, authorization to apply is only given if the applicant demonstrates that his / her own rights may be violated and the order is necessary to avert serious disadvantages or to protect important issues.

An urgent application is justified if an order to avert serious disadvantages or for other reasons is urgently required. According to the prevailing view in jurisprudence, as in Section 32 of the Federal Constitutional Court Act, this is determined by weighing the consequences. According to this, the consequences of the issuance of an order in spite of the unsuccessful main issue are compared and compared with the consequences of the failure to issue an order in spite of the merits of the main matter. If the consequences of not issuing an order weigh more heavily, the application is well founded so that the court issues the order. The actual chances of success in the main part are basically not taken into account in the context of Section 47 (6) VwGO, unlike the other forms of temporary legal protection in administrative law. The court only takes this into account if the result is obvious.

Appeal

Part III of the VwGO contains provisions on legal remedies against court decisions, in particular the appeal to the Higher Administrative Court and the appeal to the Federal Administrative Court, but also to the resumption of a closed procedure. The appeal is aimed at the renewed legal and factual review of a judgment. In contrast, the revision is limited to the clarification of legal questions. A complaint against other court decisions is permissible according to § 146 VwGO .

According to § 152a Code of Administrative Procedure, a party may still Anhörungsrüge raise if it's right to be heard ( Art. 103 was injured paragraph 1 GG).

Part IV of the VwGO contains provisions on the costs of the proceedings and the enforcement (enforcement) of judgments.

literature

Textbooks

  • Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 .
  • Mario Martini: Administrative procedural law and general administrative law: systematic representation in a graphic-text combination . 6th edition. Franz Vahlen, Munich 2017, ISBN 978-3-8006-4998-3 .
  • Harald Hofmann, Jürgen Gerke: General administrative law, with notification technology and legal protection. 9th edition. Stuttgart 2005, ISBN 3-555-01353-X .
  • Thorsten Ingo Schmidt: Case review general administrative law with VwGO. 2nd Edition. CF Müller, Heidelberg 2014, ISBN 978-3-8114-3438-7 .
  • Edgar Bosch, Jörg Schmidt, Rolf Vondung: Practical introduction to administrative court proceedings. 9th edition. Kohlhammer, Stuttgart 2012, ISBN 978-3-17-021843-7 .
  • Horst Suckow, Holger Weidemann: General administrative law and administrative legal protection. 15th edition. Deutscher Gemeindeverlag, Stuttgart 2007, ISBN 978-3-555-01394-7 .
  • Thomas Mann, Volker Wahrendorf: Administrative procedural law . 4th edition. Franz Vahlen, Munich 2015, ISBN 978-3-8006-4172-7 .
  • Wolf-Rüdiger Schenke: Administrative procedural law . 15th edition. CF Müller, Heidelberg 2017, ISBN 978-3-8114-4548-2 .
  • Mike Wienbracke: Administrative procedural law. CF Müller, 2nd edition 2014, ISBN 978-3-8114-7080-4 .
  • Thomas Würtenberger: administrative procedural law: A study book, Legal status: . 3. Edition. CH Beck, Munich 2011, ISBN 978-3-406-60603-8 .

Comments

  • Johann Bader, Michael Funke-Kaiser, Thomas Stuhlfauth, Jörg von Albedyll: Administrative Court Rules . 6th edition. Hüthig Jehle Rehm, Heidelberg 2014, ISBN 978-3-8114-6042-3 .
  • Erich Eyermann (Hrsg.): Administrative court regulations: Comment . 14th edition. CH Beck, Munich 2014, ISBN 978-3-406-66567-7 .
  • Michael Fehling, Berthold Kastner, Rainer Störmer (eds.): Administrative law: VwVfG, VwGO, subsidiary laws: hand commentary . 4th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2501-4 .
  • Ferdinand Kopp, Wolf-Rüdiger Schenke: Administrative Court Rules : Comment . 23rd edition. CH Beck, Munich 2017, ISBN 978-3-406-70767-4 .
  • Herbert Posser, Heinrich Amadeus Wolff (Ed.): Beck'scher Online Comment VwGO , 44th Edition. CH Beck, Munich 2018.
  • Konrad Redeker, Hans-Joachim von Oertzen (ed.): Administrative court order: Comment . 16th edition. Kohlhammer, Stuttgart 2014, ISBN 978-3-17-025397-1 .
  • Helge Sodan, Jan Ziekow (Hrsg.): Administrative court regulations: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  • Hans-Peter Vierhaus: Right of Evidence in the Administrative Process . CH Beck, Munich 2011, ISBN 978-3-406-62025-6 .
  • Peter Wysk (Ed.): Administrative Court Regulations . 2nd Edition. CH Beck, Munich 2016, ISBN 978-3-406-69011-2 .
  • Heinrich Wolff, Andreas Decker: Administrative Court Code (VwGO), Administrative Procedure Act (VwVfG): Study Commentary . 3. Edition. CH Beck, Munich 2012, ISBN 978-3-406-62803-0 .

Web links

Individual evidence

  1. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 4, Rn. 2.
  2. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 4, Rn. 9.
  3. ↑ BVerfGE 26, 186 (198) : Courts of Honor.
  4. ^ A b Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 11, Rn. 2.
  5. ↑ a b c Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 5 Rn. 27.
  6. ↑ Helge Sodan: § 40 , Rn. 299. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court regulations: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  7. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 11, Rn. 51.
  8. ↑ Helge Sodan: § 40 , Rn. 421. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court order: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  9. ^ OVG North Rhine-Westphalia, judgment of May 13, 2011, 16 E 174/11 = Neue Juristische Wochenschrift 2011, p. 2379.
  10. ↑ VGH Bayern, judgment of June 9, 1980, 9 CS 80 A.268 = Neue Juristische Wochenschrift 1980, p. 2722.
  11. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 5 Rn. 16-21.
  12. ^ Elmar Krüger: The opening of the administrative judicial process . In: Juristische Schulung 2013, p. 598 (601).
  13. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 5 Rn. 27.
  14. ↑ Julian Seibert: Determination of the admissible type of action and judicial notification obligation in the administrative process . In: Legal Training 2017, p. 122.
  15. ↑ BVerwGE 17, 87 (91).
  16. ↑ Thomas Schmidt-Kötters: § 42 , Rn. 109. In: Herbert Posser, Heinrich Amadeus Wolff (Hrsg.): Beck'scher Online Comment VwGO , 44th Edition. CH Beck, Munich 2018
  17. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 14, Rn. 54.
  18. ↑ Thomas Schmidt-Kötters: § 42 , Rn. 128-135. In: Herbert Posser, Heinrich Amadeus Wolff (Ed.): Beck'scher Online Comment VwGO , 44th Edition. CH Beck, Munich 2018
  19. ^ BVerwG, judgment of January 21, 1993, 4 B 206.92 = Neue Zeitschrift für Verwaltungsrecht 1993, p. 884.
  20. ↑ Otto Bachof: The case law of the Federal Administrative Court . In: JuristenZeitung 1962, p. 663 (665).
  21. ^ OVG Lower Saxony, judgment of July 18, 2007, 12 LC 56/07 = New Journal for Building Law and Procurement Law 2007, p. 773.
  22. ^ VGH Baden-Württemberg, judgment of September 19, 2000, 5 S 1843/00 = New Journal for Administrative Law Jurisprudence Report 2001, p. 543.
  23. ↑ BVerwG, judgment of August 17, 2004, 9 A 1.03 = Natur und Recht 2005, p. 177.
  24. ↑ BVerwGE 5, 302 .
  25. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 12, Rn. 22nd
  26. ^ VG Hamburg, decision of September 22, 1988, 7 VG 2499/88 = Neue Zeitschrift für Verwaltungsrecht 1988, p. 1058.
  27. ↑ Helge Sodan: § 42 , Rn. 335. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court order: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  28. ↑ BVerwGE 81, 164 (165–166).
  29. ↑ BVerwGE 44, 339 .
  30. ↑ Benno Kaplonek, Matthias Lunch: neighbor protection in public construction . In: Juristische Arbeitsblätter 2006, p. 664 (669).
  31. ↑ BVerwG, judgment of March 3, 1989, 8 C 98.85 = Neue Zeitschrift für Verwaltungsrecht, Jurisprudence Report 1990, p. 44.
  32. ↑ Only the states of Brandenburg, Lower Saxony, Mecklenburg-Western Pomerania and Saarland have the authorization of Section 78 (1) No. 2 VwGO to stipulate that actions for rescission and obligations are to be directed against the authority itself instead of against the legal entity of the authority , Saxony-Anhalt and Schleswig-Holstein, and until December 31, 2010 also North Rhine-Westphalia.
  33. ↑ Michael Brenner: § 78 , Rn. 5. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court order: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  34. ↑ Klaus Rennert, Michael Happ: § 78 , Rn. 2. In: Erich Eyermann (Hrsg.): Administrative court regulations: Comment . 14th edition. CH Beck, Munich 2014, ISBN 978-3-406-66567-7 .
  35. ↑ Peter Kothe: § 78 , Rn. 11. In: Konrad Redeker, Hans-Joachim von Oertzen (ed.): Administrative court regulations: Commentary . 16th edition. Kohlhammer, Stuttgart 2014, ISBN 978-3-17-025397-1 .
  36. ↑ Ferdinand Kopp, Wolf-Rüdiger Schenke: Administrative Court Rules : Comment . 23rd edition. CH Beck, Munich 2017, ISBN 978-3-406-70767-4 , § 78, Rn. 1.
  37. ↑ Claus Meissner: § 78 , Rn. 4. In: Friedrich Schoch, Jens-Peter Schneider, Wolfgang Bier (eds.): Administrative court order . 33rd edition. CH Beck, Munich 2017, ISBN 3-406-39184-2 .
  38. ^ Ulrich Ramsauer: The dogmatics of the subjective public rights . In: Juristische Schulung 2012, p. 769 (773–774).
  39. ↑ Helge Sodan: § 42 , Rn. 384-391. In: Helge Sodan, Jan Ziekow (Hrsg.): Verwaltungsgerichtsordnung: Großkommentar . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  40. ^ Heinrich Wolff: § 113 , Rn. 97. In: Helge Sodan, Jan Ziekow (Hrsg.): Administrative court order: large commentary . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  41. ↑ Klaus Gärditz, Johannes Orth: The relevant point in time for assessing the factual and legal situation in the administrative process . In: Jura 2013, p. 1100 (1107).
  42. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 20 marginal no. 18th
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  44. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 10 Rn. 13.
  45. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 29, Rn. 3.
  46. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 18, Rn. 5.
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  48. ↑ Wolf-Rüdiger Schenke: Legal protection against completed administrative actions . In: Jura 1980, p. 133 (142).
  49. ↑ Mario Martini: Administrative procedural law and general administrative law: systematic representation in a graphic-text combination . 6th edition. Franz Vahlen, Munich 2017, ISBN 978-3-8006-4998-3 , pp. 79 .
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  58. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 21 Rn. 4th
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  61. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 21 Rn. 9.
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  65. ^ OVG Schleswig-Holstein, judgment of June 19, 1991, 4 M 43/91 = Neue Zeitschrift für Verwaltungsrecht 1992, p. 688 (689).
  66. ↑ Thorsten Finger: Access to German administrative jurisdiction under Community law influence . In: Juristische Arbeitsblätter 2005, p. 228 (232).
  67. ^ Heiko Sauer: Staatsrecht III . 4th edition. CH Beck, Munich 2016, ISBN 978-3-406-69544-5 , § 8, Rn. 58.
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  70. ↑ Walter Frenz: The obligation suit . In: Legal worksheets 2011, p. 917.
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  72. ↑ Lars Hummel: The preliminary legal protection in the administrative process . In: Legal Training 2011, p. 502.
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  74. ↑ Adelheid Puttler: § 123 , para. 102-105. In: Helge Sodan, Jan Ziekow (Hrsg.): Verwaltungsgerichtsordnung: Großkommentar . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  75. ^ Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 28 marginal no. 21st
  76. ↑ a b Wilfried Erbguth, Annette Guckelberger: General administrative law with administrative procedural law and state liability law . 10th edition. Nomos, Baden-Baden 2020, ISBN 978-3-8487-6097-8 , § 28 marginal no. 22nd
  77. ^ Isabel Schübel-Pfister: Current administrative procedural law . In: Juristische Schulung 2013, p. 417 (422).
  78. ↑ Bayerischer VGH, decision of August 11, 2009, 7 NE 09.1378 = New Journal for Administrative Law 2010, p. 268 (269).
  79. ^ Friedhelm Hufen: Administrative procedural law . 10th edition. CH Beck, Munich 2016, ISBN 978-3-406-69552-0 , § 40, Rn. 1.