Public law contract

from Wikipedia, the free encyclopedia

The public law contract ( örV ) represents a form of action under German public law . It is a contract on a public law object in which at least one legal person under public law is involved. The public law contract exists in several forms. The administration contract is regulated in fragments in Sections 54 to 62 of the Federal Administrative Procedure Act (VwVfG) and in the administrative procedure laws of the federal states. This is a contract that involves an administrative service under public law . This form of action is often used, for example, in the area of public building law , environmental law and subsidy law . Other forms of public law contracts exist in the area of constitutional and international law .

History and functions of the management contract

Before the VwVfG came into force, it was disputed in jurisprudence whether the administration in the field of public law was also generally allowed to conclude contracts or whether express authorization was required to do so . The VwVfG, which came into force on January 1, 1977, answered this dispute in favor of the fundamental admissibility of the contract form. The rules of the VwVfG only apply directly to contracts concluded on or after January 1, 1977. The legal ideas contained in the regulations can, however, also be transferred to earlier contracts.

The management contract enables the regulation of a legal relationship. From the perspective of the parties involved, it has the advantage over other forms of action under public law that the contractual legal framework is more flexible and leaves the parties involved greater leeway. As a result, the parties involved can regularly take their interests into account better than would be possible in a unilateral administrative procedure and thus achieve legal consequences that are coordinated with the will of all parties involved. On the other hand, the increased room for maneuver is associated with the risk of abuse. The catchphrase of the sell-off of sovereign rights is often used in jurisprudence . For this reason, the law provides for some protective provisions to prevent this.

In the management agreement, the parties are equal partners. This presupposes that both have the opportunity to influence the content of the contract to a not insignificant extent. This represents the decisive difference to the administrative act, which an authority generally issues unilaterally towards an addressee. Demarcation difficulties can arise with the administrative act requiring cooperation, a special form of the administrative act. In this case too, the citizen participates in its creation, however this is limited to the decision on the creation; Unlike in the case of an administration contract, he does not have the power to shape the content.

In practice, the management contract is regularly applied. However, the public sector makes more frequent use of the administrative act, since from the authorities' point of view, issuing such an act is usually faster than reaching a contractual agreement.

Features of the management contract

Section 54 sentence 1 VwVfG names several features that characterize an administrative contract:

contract

Like a civil law contract, a public law contract comes about through the exchange of two corresponding declarations of intent that are aimed at concluding a contract. These are referred to in the law as application and acceptance . Since the VwVfG does not contain any special regulations with regard to the conclusion of a contract, the provisions of the German Civil Code (BGB) apply accordingly in accordance with Section 62 sentence 2 VwVfG. This applies, for example, to the provisions on declarations of intent. The declarations of the parties involved are interpreted according to § 133 , § 157 BGB based on the objective recipient horizon .

At least one participant must be a legal entity under public law. These include municipalities , for example . The provisions on public law contracts apply analogously if an administrative body from another state is involved.

The exchange of declarations of intent requires that the parties involved have legal capacity . This is regularly lacking with authorities, as these usually represent a dependent subdivision of a public authority. In these cases the public authority becomes a contracting party. The action of the authorities' bodies is attributed to the agency as its own action.

Establishment, amendment or cancellation of a legal relationship under public law

The function of the contract is to establish, change or cancel a legal relationship under public law. This is a legal relationship that results from the application of public law norms to a situation. Typical areas of application of the public law contract are the granting of subsidies, the use of a public facility and the granting of a dispensation .

Subject of the contract under public law

Finally, an administrative contract is characterized by the fact that it has a subject matter under public law. The delimitation from the private law contract is therefore based on the content of the contract. The objective content of the legal consequences is decisive, not the legal classification of the contracting parties or their subjective perception. Accordingly, a contract under public law is the subject of a public law service. This applies, for example, to a contract by virtue of which a municipality undertakes to issue a building permit. An administrative body can also contractually undertake to issue an ordinance or a statute .

When distinguishing between public law and private law contracts, the principle of uniform assessment applies: A contract that contains both public law and private law elements can be public law as a whole, if only some of the related performance obligations are public law in nature are. This assumes that the public law elements form the focus of the contract. However, according to the separation theory advocated by the case law, a different assignment of individual contract components is possible if public-law and private-law obligations have little or no relationship to one another.

Forms of the management contract

The law distinguishes between different forms of management contracts.

Coordination law and subordination law contract

First, a distinction is made between the coordination law and the subordination law contract:

In the case of a contract under coordination law, the contractual partners are on the same level with regard to the subject matter of the contract. Such a contract is mainly concluded between several public administration bodies . It forms legal relationships in an area in which an administrative act should not be issued due to the equality. It is therefore used, for example, in relationships between municipalities.

According to Section 54 Clause 2 VwVfG, the administration concludes a contract under the law of subordination with a person, towards whom it may also issue an administrative act. In the case of a contract under subordination law, the contracting parties are accordingly in a relationship of superiority and subordination. As a rule, such a contract is concluded between an administrator and a private person. Some special regulations apply to the subordination contract, for example with regard to its effectiveness.

Comparison and exchange agreement

In the context of the subordination agreement, the law further distinguishes between the settlement agreement ( Section 55 VwVfG) and the exchange agreement ( Section 56 VwVfG).

Settlement agreement

A settlement agreement exists if an uncertainty that exists with a reasonable assessment of the facts or the legal situation is eliminated by mutual indulgence. Objectively inexplicable doubts, however, are not recorded. In these cases, a decision must be made according to the given burden of proof.

Mutual yielding requires that the parties withdraw or change part of their allegations and claims made during the proceedings. It is not necessary that the parties give in equally. Objectively, the parties have to give way in the positions about which the uncertainty exists. If the contract is concluded during legal proceedings, it also represents a procedural act.

The actual communication must be distinguished from the comparison . This is not a comparison within the meaning of § 55 VwVfG, but a contract according to § 54 sentence 1 VwVfG.

Exchange contract

An exchange contract is given in accordance with Section 56 (1) VwVfG if the contractual partner of the administrative agency undertakes to provide a consideration. An exchange contract may only be concluded under certain conditions.

First of all, it is necessary that the consideration for a specific purpose is agreed in the contract. According to the prevailing view in jurisprudence, it is sufficient in this regard if the purpose can be determined by interpretation.

Furthermore, the consideration must serve the administration to fulfill its public tasks.

Furthermore, the consideration must be reasonable in view of the overall circumstances. This applies if it is not disproportionate to the performance of the administrator.

Finally, the consideration must have an objective connection to the contractual performance of the administrative agency. In jurisprudence, this requirement is called the prohibition of coupling . On the one hand, this is intended to prevent sovereign rights from being sold out. On the other hand, the contractual partner is to be protected from inappropriate public sector demands. A contract that links different matters in an unrelated way violates the ban on coupling. For the follow-up cost contract as a sub-case of the urban development contract , the prohibition of coupling is specified in Section 11 Paragraph 2 Clause 2 Number 3 of the Building Code (BauGB).

Pursuant to Section 56 (2) VwVfG, a contract for a public service to which the private contractual partner is entitled may only be concluded if the consideration provided by the private person is likely to be the content of an ancillary provision according to Section 36 VwVfG. This also applies in the event of a fundamentally existing margin of appreciation being reduced to zero.

An exchange contract exists even if a service by the authority is not expressly agreed but is assumed as a basis for business. This is what law refers to as a limping exchange contract.

Requirements for the conclusion of a contract

The legality of a public law contract requires that the form of the contract is permissible. This applies unless it is prohibited by law. A form of contract prohibition exists, for example, in the area of ​​the appointment of a civil servant , which takes place in accordance with Section 8 of the Civil Service Status Act and Section 10 of the Federal Civil Service Act by administrative act. According to § 1 Paragraph 3 Clause 2 BauGB, a municipality may also not commit itself to drawing up a land-use plan or an urban development statute . In the area of aptitude and performance tests , a contract under public law may not be concluded in accordance with Section 2 Paragraph 3 Number 2 VwVfG. According to the prevailing view in jurisprudence, acting in the form of a contract is also fundamentally excluded in tax law .

Furthermore, the contract must be concluded by the locally and materially competent authority. Responsibility results from the respective specialist law to which the contract relates.

To promote legal certainty, the contract must generally be concluded in writing in accordance with Section 57 VwVfG . Stricter formal requirements are not affected by Section 57 VwVfG. For example, a contract that obliges a party to transfer a property requires notarial certification in accordance with Section 311b (1) BGB .

Pursuant to Section 58 (1) VwVfG, the validity of a public law contract that encroaches on the law of a third party still requires that the third party agree to the contract. The same applies if, instead of the contract, an administrative act could be issued that would require the cooperation of another authority.

Illegality and invalidity of the management contract

If an administrative contract violates the law, this does not necessarily result in its ineffectiveness, as with the administrative act. For reasons of legal certainty, invalidity only occurs in the case of certain particularly serious violations. In contrast to the case with an administrative act, an administrative contract cannot be canceled by unilateral action by one of the parties involved. Therefore the question of the illegality of an administration contract is of little importance in legal practice. The decisive factor for answering the question of whether claims can be derived from a contract is rather its effectiveness. Section 59 VwVfG regulates the conditions under which an administration contract is null and void .

General reason for invalidity

According to § 59 Paragraph 1 VwVfG, a contract is void if an applicable provision of the BGB orders this legal consequence. Section 125 of the German Civil Code (BGB) , for example, applies accordingly . According to this, a contract that is concluded in disregard of the form required by law is void. The provisions on legal capacity ( § 105 BGB), contestation ( § 142 BGB) and immorality ( § 138 BGB) also apply .

Also § 134 BGB is basically application. According to this, a contract that violates a legal prohibition is ineffective. However, if this provision were to apply in full, any illegal contract would be void. This would contradict the will of the legislature to declare a contract ineffective only in exceptional cases, which is expressed in Section 59 (2) VwVfG in particular. Therefore, § 134 BGB is teleologically reduced to the effect that it only covers the violation of legal norms that disapprove of the content of the contract. This was affirmed by the case law, for example, in the case of a contract through which a sovereign imposed costs on a private person which, according to the law, had to be borne by the public sector. Furthermore, the violation of a prohibition on the form of a contract leads to nullity, as this generally disapproves of the conclusion of the contract. A breach of Union law , such as state aid law , can also result in the nullity of a contract.

Special grounds for invalidity

Section 59 (2) VwVfG contains additional grounds for invalidity that apply to the subordination contract. These are more specific compared to Section 59 (1) VwVfG.

A contract is ineffective if an administrative act with corresponding content according to § 44 VwVfG would be null and void.

Invalidity also occurs if an administrative act with the corresponding content would be illegal not only because of a procedural or formal error within the meaning of § 46 VwVfG and this is known to the contracting parties. This is to prevent those involved from deliberately circumventing legal provisions.

Finally, failure to comply with the specific requirements of the settlement agreement or the exchange agreement leads to the nullity of the agreement. In this context, the prohibition of coupling in the exchange contract is of particular practical importance.

Consequences of nullity

If a contract is void, the services exchanged are generally returned to the respective service provider using the public law reimbursement claim recognized under customary law . If an administrative act has been issued within the framework of the contract, this will be withdrawn in accordance with Section 48 VwVfG or a more specific provision .

According to Section 59 (3) VwVfG, the invalidity can be limited to part of the contract. This assumes that the contract would have been concluded without the void part. This regulation corresponds to § 139 BGB.

Processing of the management contract

If the contract is effective, the claims that follow from the contract can be enforced in accordance with Section 62 Clause 2 VwVfG in corresponding application of the provisions of the BGB. For example, the right to disrupt performance applies . Since the administrative body has moved to the level of equality by concluding a contract, it is not allowed to enforce its claims by means of an administrative act.

Pursuant to Section 61 (1) Sentence 1 VwVfG, the parties to a contract under subordination law can submit to immediate enforcement . As a result, the contract represents an enforcement order from which the authority involved can enforce independently. In practice this is agreed regularly.

Pursuant to Section 40 (1) of the Administrative Court Code, administrative judicial channels are open for disputes about an administrative contract. The urgent assignment of Section 40 (2) sentence 1 VwGO to the civil courts expressly excludes the administrative contract from its scope. In jurisprudence it is controversial as to which legal route claims from culpa in contrahendo can be asserted. For the allocation to the administrative legal process it is stated that it has a close factual connection to an administrative contract. For the assignment to civil jurisdiction, it is stated that it is covered by the wording of Section 40 (2) sentence 1 VwGO as a legal obligation .

Pursuant to Section 60 (1) sentence 1 VwVfG, a contracting party can request the adjustment of the contract if the situation has subsequently changed in such a way that it is unreasonable for it to continue to be bound by the contract originally concluded. If this is not possible, she can terminate the contract. This regulation corresponds to § 313 BGB. An administrative body may continue to terminate a contract in accordance with Section 60 (1) sentence 2 VwVfG if this is necessary in order to prevent or eliminate serious disadvantages for the common good. According to Section 60 (2) VwVfG, notice of termination must be given in writing.

Other forms of public law contract

An international treaty is concluded between subjects of international law , e.g. between states. The Basic Law differentiates in Art. 59 Paragraph 1 Clause 2 between administrative agreements under international law and international treaties . The former may only be concluded by the executive, the latter requires the approval of the Bundestag. The Administrative Procedure Act does not apply to international treaties.

A constitutional treaty does not deal with administrative law, but with constitutional law. These include, for example, coalition agreements .

A State Church Treaty (also: Concordat) is concluded between a sovereign and a religious community . According to Section 2 (1) VwVfG, the VwVfG does not apply to these contracts.

The federal government and the states have also agreed to codify the cooperation agreement as a new type of contract in the administrative procedural laws. In such a contract, a private person is involved in the exercise of official authority. So far, however, the project has not yet been implemented.

literature

  • Hartmut Bauer: Management contracts . In: Wolfgang Hoffmann-Riem, Eberhard Schmidt-Aßmann, Andreas Vosskuhle (eds.): Basics of administrative law. Vol. II (GVwR II) . CH Beck, Munich 2008, pp. 1155-1274, ISBN 978-3-406-54718-8 .
  • 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 , § 24.
  • Elke Gurlit: Contract under administrative law and other special administrative law connections (§§ 28-35) . In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  • Hartmut Maurer, Christian Waldhoff: General administrative law . 19th edition. CH Beck, Munich 2017, ISBN 978-3-406-68177-6 .
  • Malte Müller-Wrede: The public law contract - the ideal way to circumvent public procurement law? . In: Festschrift for Jack Mantscheff on his 70th birthday, p. 429.
  • Willy Spannowsky: Limits of administrative action through contracts and agreements . Duncker & Humblot, Berlin 1994, ISBN 978-3-428-08246-9 .

Individual evidence

  1. ^ Klaus Stern: On the foundation of a teaching of the public law contract . In: Verwaltungsarchiv 1958, p. 106 (114).
  2. ↑ BVerwGE 42, 331 (335).
  3. ↑ Jörn Kämmerer: § 54 , Rn. 1. In: Johann Bader, Michael Ronellenfitsch (Eds.): Beck'scher Online Comment VwVfG , 38th Edition. CH Beck, Munich 2017.
  4. ↑ Elke Gurlit: § 31, marginal no. 4. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  5. ↑ Michael Fehling: § 54 , Rn. 24. In: 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 .
  6. ↑ Jörn Kämmerer: § 54 , Rn. 5. In: Johann Bader, Michael Ronellenfitsch (eds.): Beck'scher online commentary VwVfG , 38th edition. CH Beck, Munich 2017.
  7. ^ Volker Schlette: The administration as a contractual partner . Tübingen 2000, ISBN 978-3-16-147224-4 , pp. 348 .
  8. ^ Gudula Looman: "Ausverkauf von Sovereigns" in contracts between builders and local authorities . In: Neue Juristische Wochenschrift 1996, p. 1439.
  9. ↑ Ferdinand Kopp, Ulrich Ramsauer (Ed.): Administrative Procedure Act: Commentary . 18th edition. CH Beck, Munich 2017, ISBN 978-3-406-71056-8 , § 54, Rn. 11c.
  10. ↑ Jörn Kämmerer: § 54 , Rn. 6. In: Johann Bader, Michael Ronellenfitsch (Eds.): Beck'scher Online Commentary VwVfG , 38th Edition. CH Beck, Munich 2017.
  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 , § 24 marginal no. 4th
  12. ↑ Jörn Kämmerer: § 54 , Rn. 7. In: Johann Bader, Michael Ronellenfitsch (Ed.): Beck'scher Online Comment VwVfG , 38th Edition. CH Beck, Munich 2017.
  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 , § 24 marginal no. 4th
  14. ↑ Elke Gurlit: § 31, marginal no. 2. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  15. ↑ Jörn Kämmerer: § 54 , Rn. 22. In: Johann Bader, Michael Ronellenfitsch (Eds.): Beck'scher Online Commentary VwVfG , 38th Edition. CH Beck, Munich 2017.
  16. ↑ Elke Gurlit: § 31, marginal no. 3. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  17. ↑ BVerwGE 14, 235 (236).
  18. ↑ BGHZ 32, 214 (215).
  19. ↑ BGHZ 56, 365 (368).
  20. ↑ Ferdinand Kopp, Ulrich Ramsauer (Ed.): Administrative Procedure Act: Commentary . 18th edition. CH Beck, Munich 2017, ISBN 978-3-406-71056-8 , § 54, Rn. 9.
  21. ↑ Heinz Bonk, Werner Neumann: § 54 , Rn. 141. In: Paul Stelkens, Heinz Bonk, Michael Sachs (eds.): Administrative Procedure Act: Commentary . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71095-7 .
  22. ↑ BVerwGE 42, 331 (332).
  23. ^ 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 , § 24 marginal no. 7th
  24. ↑ BVerwGE 84, 183 (185).
  25. ↑ Elke Gurlit: § 30, Rn. 9. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  26. ↑ Elke Gurlit: § 30, Rn. 6-8. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  27. ↑ BVerwGE 111, 162 (168).
  28. ^ Heinz Bonk, Werner Neumann: § 56 , Rn. 52. In: Paul Stelkens, Heinz Bonk, Michael Sachs (eds.): Administrative Procedure Act: Comment . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71095-7 .
  29. ↑ BVerfG, judgment of December 15, 1989, Az. 7 C 6.88, full text = BVerwGE 84, 236 - Preventive pollution control
  30. ↑ Elke Gurlit: § 32, Rn. 9. In: Dirk Ehlers, Hermann Pünder (Ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  31. ↑ Jan Ziekow: Administrative Procedure Act: Comment . 3. Edition. Kohlhammer, Stuttgart 2013, ISBN 978-3-17-022567-1 , § 56, Rn. 15th
  32. ↑ BVerwG, judgment of March 20, 2003, 2 C 23/02 = New Journal for Administrative Law, Case Law Report 2003, p. 874.
  33. ↑ Elke Gurlit: § 32, Rn. 4. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  34. ↑ Heinz Bonk, Werner Neumann: § 54 , Rn. 26. In: Paul Stelkens, Heinz Bonk, Michael Sachs (eds.): Administrative Procedure Act: Commentary . 9th edition. CH Beck, Munich 2018, ISBN 978-3-406-71095-7 .
  35. ↑ Ferdinand Kopp, Ulrich Ramsauer (Ed.): Administrative Procedure Act: Commentary . 18th edition. CH Beck, Munich 2017, ISBN 978-3-406-71056-8 , § 54, Rn. 5.
  36. ↑ BGHZ 58, 386 (392).
  37. ↑ BVerwGE 98, 58 (63).
  38. ↑ a b BVerwGE 89, 7 (10).
  39. ↑ BVerwGE 70, 41 .
  40. ↑ Hans-Uwe Erichsen: The nullity and ineffectiveness of administrative contracts . In: Jura 1994, p. 47 (50).
  41. ↑ Elke Gurlit: § 32, Rn. 30. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  42. ↑ Elke Gurlit: § 33, Rn. 1. In: Dirk Ehlers, Hermann Pünder (ed.): General administrative law . 15th edition. De Gruyter, Berlin 2016, ISBN 978-3-11-036835-2 .
  43. ^ 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 , § 24 marginal no. 27.
  44. ^ Hartmut Maurer, Christian Waldhoff: General administrative law . 19th edition. CH Beck, Munich 2017, ISBN 978-3-406-68177-6 , § 14, Rn. 57.
  45. ↑ Wolfgang Dötsch: Legal recourse for claims from culpa in contrahendo under public law . In: Neue Juristische Wochenschrift 2003, p. 1430.
  46. ↑ Helge Sodan: § 40 , Rn. 566-569. In: Helge Sodan, Jan Ziekow (Hrsg.): Verwaltungsgerichtsordnung: Großkommentar . 4th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0318-0 .
  47. ↑ Martin Kellner: Legal recourse for claims from culpa in contrahendo . In: Deutsches Verwaltungsblatt 2002, p. 1648.
  48. ↑ Jörn Kämmerer: § 54 , Rn. 10-11. In: Johann Bader, Michael Ronellenfitsch (Eds.): Beck'scher Online Comment VwVfG , 38th Edition. CH Beck, Munich 2017.
  49. ↑ Dirk Ehlers: § 40 , Rn. 174. In: Friedrich Schoch, Jens-Peter Schneider, Wolfgang Bier (eds.): Administrative court order . 33rd edition. CH Beck, Munich 2017, ISBN 3-406-39184-2 .
  50. ↑ Jörn Kämmerer: § 54 , Rn. 19. In: Johann Bader, Michael Ronellenfitsch (Eds.): Beck'scher Online Commentary VwVfG , 38th Edition. CH Beck, Munich 2017.