Administrative procedure
The legal definition of the administrative procedure can be found in German law in Section 9 VwVfG :
- “The administrative procedure within the meaning of this law is the external activity of the authorities , which is aimed at the examination of the requirements, the preparation and the adoption of an administrative act or the conclusion of a public law contract ; it includes the issuing of the administrative act or the conclusion of the public law contract. "
Differentiation from private law action
This means that the authority's activity must:
- have an external effect (“towards the citizen”), internal instructions from a head of authority to his employees or officials do not initiate any administrative procedure; z. B. Administrative regulations
- aim at the adoption of an administrative act or the conclusion of a public law contract. The procurement of office materials by an authority and the internal decision-making process leading to the procurement is therefore not an administrative procedure; because the administration concludes civil-legal purchase contracts like any private person. The latter is also known as fiscal action.
Types of procedure
The administrative procedure includes both the preparation and the issuing of an administrative act.
The principle of non-formalism applies ( § 10 VwVfG). According to this, the administrative procedure is not bound to certain forms, unless there are special legal provisions for the form of the procedure. It's easy, convenient, and quick to do.
For complex issues, such special legal provisions exist for the form of the procedure. A formal administrative procedure then takes place (§§ 63 ff. VwVfG).
The plan approval procedure (Sections 72 ff. VwVfG) is a sub-case of the formal administrative procedure . It is used in particular for building projects of significant spatial importance (example: planning approval under railway law in accordance with Section 18 of the General Railway Act ). The law provides for a thoroughly regulated hearing procedure (Section 73 VwVfG) in which anyone whose interests are affected by the planned project can view the developer’s plan, raise objections to the project, and these objections are then to be dealt with in a special hearing . Authorities whose area of responsibility is affected by the project will be requested by the hearing authority to comment. The final decision is a plan approval decision (§ 74 VwVfG).
Administrative acts that have been issued in a formal administrative procedure do not require any preliminary proceedings, but can be directly challenged in court (Section 70 VwVfG).
Other rules of procedure
The Administrative Procedure Act regulates only part of the administrative procedures in Germany, namely those carried out by federal authorities for which no special legal regulations exist; there are such. B. in the Tenth Book of the Social Code (SGB X) for the administrative procedure in social law and in the tax code for the administrative procedure for tax collection . The German federal states have their own administrative procedure laws, which, however, only differ in a few details from each other and from the Federal Republic's Administrative Procedure Act.
procedure
The flow of the management method is in the Administrative Procedures Act , and the state management method laws regulated. The main procedural steps of the general administrative procedure are:
- Section 22 VwVfG - start of the procedure (according to due discretion or ex officio or upon request )
- § 24 VwVfG - Determination of facts (principle of investigation )
- Section 26 VwVfG - evidence
- Section 28 VwVfG - hearing
- § 41 VwVfG - announcement of the administrative act
The administrative procedure can also end before issuance or without an administrative act, in particular by withdrawing the application, by concluding a contract under public law or, if it was started ex officio, by being suspended by the authority. However, the person concerned has no right to the termination of the proceedings.
Orders that affect the administrative procedure and the preparation of a decision on the matter, but not the matter itself, are procedural acts that cannot be independently challenged ( Section 44a VwGO ).
Appeal
Preliminary proceedings (objection proceedings)
The addressee of an administrative act can raise an objection to an administrative act , provided that the preliminary proceedings have not been excluded for the specific administrative act in Section 68 (1) VwGO or in the respective national law (usually in the respective implementing laws for the VwGO) (see special features of the preliminary proceedings ) . Unless a right to choose between objection proceedings and legal proceedings has not been created on the basis of state law, the direct filing of a lawsuit against an administrative act without prior filing of an objection would lead to the inadmissibility of the action.
The preliminary proceedings, § 68 ff. VwGO begin with the filing of the objection . The exit authority can remedy this after examining the objection ( Section 72 VwGO). Otherwise, the objection authority makes a final decision on the objection and can either admit or reject it, Section 73 . In addition to the decision on the matter, the costs according to § 73 Abs. 3 S. 3 VwGO, § 80 VwVfG to decide. If a lawyer was appointed in the proceedings, it must still be decided whether the consultation was necessary (Section 80 (2) VwVfG) and thus the lawyer's fees for the opposition proceedings are to be reimbursed.
In principle, the objection has suspensive effect and thus prevents the authority from completing the administrative act before the administrative procedure is concluded. Exceptions to this rule are stipulated in Section 80 VwGO and relate, in a practice-relevant manner, to the requirement of public charges and costs (similar in the tax court regulations for tax assessments), in the case of measures by police officers that cannot be postponed, and in some cases in the law on foreigners (see Section 84 Residence Act). Furthermore, the authority can in appropriate cases the immediate execution according to. Order Section 80 Paragraph 2 No. 4 VwGO and thus omit the suspensive effect of an objection. If an objection does not have a suspensive effect for the reasons mentioned, a suspension of enforcement at the authority according to 80 para. 4 VwGO or an order or restoration of the suspensive effect by the court in accordance with Section 80 (4) VwGO can be applied for.
1st instance
Section 40 VwGO - opening of administrative legal channels(if the preliminary proceedings have been concluded unsuccessfully, the action in the 1st instance is now admissible; ready for a decision - the court can decide withoutthe authority needinga discretionary decision beforehand- otherwise: the authority is obliged to reapply decide)
§ 113 Code of Administrative Procedure - Judgment Tenor = suspension (. Legal challenge to § 113 Code of Administrative Procedure 1) or obligation of the authority to issue the coveted administrative act or for a new decision in compliance with the judgment ( liability lawsuit . § 113 para 5 sentence 1 or 2 Code of Administrative Procedure)
2nd instance
Section 124 VwGO - Appeal - Admissibility - Deadline - Form at a higher administrative court or administrative court Section 80 VwGO
§ 113 VwGO - judgment tenor (see above).
3rd instance
Section 133 VwGO - appeal to the Federal Administrative Court . This is the highest instance of administrative jurisdiction
§ 113 VwGO - judgment key (see above)
Cancellation according to validity
Once the administrative act has become final , the administrative act can no longer be challenged - subject to special repeal options in special laws, e.g. B. the application for a new assessment according to § 44 SGB X.
However, an unlawful administrative act according to 48 VwVfG ( withdrawal ) withdrawn, a lawful administrative act according to § 49 VwVfG ( revocation ) can be revoked.
The distinction between burdensome administrative act and favorable administrative act applies here. In the latter case, the citizen enjoys legitimate expectations under certain circumstances .
Under certain conditions, the authority can also revive the procedure at the request of the person concerned and cancel or change the incontestable administrative act ( Section 51 VwVfG).
literature
- Harald Hofmann, Jürgen Gerke: General administrative law with notification technology, administrative enforcement and legal protection. 10th edition. Kohlhammer, ISBN 978-3-555-01510-1 .
- Jörg-Dieter Oberrath: Public Law. Constitutional law, European law, general administrative law and administrative procedural law with the basics of public commercial law. 2nd Edition. Carl Heymanns, Cologne / Berlin / Munich 2008, ISBN 978-3-452-26776-4 .
- Jens-Peter Schneider : Structures and types of administrative procedures . In: Wolfgang Hoffmann-Riem , Eberhard Schmidt-Aßmann , Andreas Vosskuhle (eds.): Basics of administrative law. Vol. II (GVwR II). CH Beck, Munich 2008, ISBN 978-3-406-54718-8 , pp. 523-624.
