Assurance (administrative law)
In German administrative law, an assurance is a subtype of assurance regulated in Section 38 VwVfG , which relates to an administrative act .
Basics
According to the wording of § 38 VwVfG, the promise is a sub-case of the promise. A commitment is a promise by an authority to take or not to take a particular measure . The assurance differs from the promise that the promise is aimed at the issuance or non-issuance of a specific administrative act.
example
Confirmation : The authority promises a citizen to cut down a tree in the city park that threatens to fall.
Assurance : The authority promises a builder to be exempt from the regulations of the development plan.
Legal nature
There is a lively debate about the question of the legal nature of the promise and thus also about the legal nature of the assurance . According to Section 38 (2) VwVfG, the regulations on the administrative act are to be applied accordingly to the assurance. This means that the assurance must be treated like an administrative act. The dispute over the classification of the commitment as an administrative act is therefore defused in the area of the assurance. So the prevailing opinion qualifies the assurance as an independent administrative act.
One point of criticism of the prevailing opinion, on the other hand, is that the assurance does not meet the administrative act criterion “regulation”. This can be countered by the fact that the assurance is aimed at creating a right for the citizen in the form of a subjective public right . Another criticism is that according to § 38 para. 2 and 3 VwVfG an assurance in any case as an administrative act in existing power can grow, albeit subject to unchanged factual and legal situation. The criticism is that the regulations on the administrative act are only applicable accordingly : If the legislature had wanted the assurance to be an administrative act, it would have declared the regulations applicable and not only applicable accordingly .
Effectiveness and Legality
The assurance must clearly distinguish between effectiveness and legality . The written form requirement is important in this context . An assurance must be given in writing to be effective. Verbally given assurances are therefore not binding. In addition, the competent authority must give the assurance. An assurance is automatically void if it has not been given in writing or by the competent authority. The existence of the nullity requirements according to § 44 VwVfG is irrelevant. The written form requirement and the competent authority are therefore expressly a matter of effectiveness and not legality requirements.
Apart from that, the usual legality requirements for administrative acts apply. For example, Section 38 (1) sentence 2 VwVfG expressly mentions the hearing of third parties and the involvement of other authorities to ensure legality. Errors in the hearing of third parties and the involvement of authorities can be cured according to § 45 VwVfG and do not affect the effectiveness.
Loss of effectiveness
The loss of effectiveness plays a special role in the area of assurance, since the binding effect for the authority also depends on the effectiveness. A law issued assurances unfolds full binding effect, but can easily by the authority of § 48 VwVfG withdrawn are.
A lawful assurance can be revoked under the conditions of § 49 VwVfG, unless there is a change in the factual or legal situation. In that case, Section 38 (3) VwVfG applies, which overrides the provisions of Section 49 (2) No. 3 and 4 VwVfG.
Such a disruption of the basis of the business ( clausula rebus sic stantibus ) leads to the automatic loss of the binding effect of the assurance. There are two prerequisites, one of which must be met in order to be able to speak of a change in the factual or legal situation:
- The authority would not have given the assurance if the change had already been made at the time the assurance was given.
- The authority should not have given the assurance due to the (changed) legal provisions.
What is decisive here is not the subjective will of the authority, but facts that are to be determined objectively. So the change has to be relevant; H. affect the business basis of the assurance. If an assurance was already unlawful at the time it was given, only a withdrawal according to § 48 VwVfG is possible.
Systematics
The administrative procedural laws of the federal states contain provisions with the same content. In addition to general administrative procedural law, the area of special administrative procedural regulations in social law also contains a statutory provision, Section 34, Book 10 of the Social Code (SGB X); In tax and duty law, an assurance analogous to § 38 VwVfG is accepted despite the lack of an express regulation. There is a similar regulation in the tax code, namely that of binding information .
literature
- Stelkens, Paul / Bonk, Heinz Joachim / Sachs, Michael (eds.) Administrative Procedure Act, 8th edition, Munich 2014
- Kingler, Stefan / Krebs, Andreas : The assurance, JuS 2010, p. 1059.
- Annette Guckelberger : Official assurances and commitments , in: DÖV 2004, p. 357.
Individual evidence
- ^ OVG Nordrhein-Westfalen judgment of October 30, 2001 -15 A 5184 / 99-, Rn. 38, openJur 2011, 15187 with reference to Henneke, in: Knack, VwVfG, 6th edition, § 38 marginal no. 7 and P. Stelkens / U. Stelkens, in: Stelkens / Bonk / Sachs, VwVfG, 6th edition, § 38 marginal no. 10e
