Two-step theory
The two-stage theory was developed by Hans Peter Ipsen and is used to determine the legal nature of administrative action in activities that can be carried out under mixed public-private-private law. This includes B. the use of a public facility or also (not entirely undisputed) the granting of subsidies (so-called service administration ).
example
1st stage
A public body "pool" could in public law legal form of a self-operation or in private law legal form of a limited liability company to be organized. The question of whether it may be used is in any case of a public law nature.
2nd stage
If the swimming pool is organized in the form of a private limited company, the usage relationship is also regulated under private law (since the limited liability company, as a legal entity under private law, is generally not an entrusted entity and therefore cannot act on a sovereign basis). The question of how the swimming pool may be used is then a matter of private law.
However, if the swimming pool is organized as an in-house operation under public law, the usage relationship can be structured under public law as well as private law. The legal nature of the usage relationship and thus the answer to the question of how it may be used must then be determined on the basis of circumstantial evidence. For example, if the usage regulations are articles of association or the entrance fee is a fee , the usage relationship is governed by public law. If, on the other hand, the usage regulations are general terms and conditions or the entrance fee is a usage fee , there is a usage relationship under private law based on private administrative law .
In case of doubt (if there are no indications), a public-law usage relationship can be assumed.
Scheme
| Organizational form of the public institution | ||||||
| public law (. eg run utility , own establishment , AöR , KöR ) |
under private law (e.g. GmbH , AG ) |
|||||
| 1st stage: "whether" | regardless of the form of organization: always publicly | |||||
| 2nd stage: "like" | Circumstantial evidence | Terms of use: | statute | Conditions | always under private law | |
| Type of use: | fee | Usage fee | ||||
| Termination of use: | revocation | termination | ||||
| Legal appeal | ||||||
| Usage ratio: | public law | under private law | ||||
meaning
The knowledge of the organizational form and the usage relationship is important, for example for the question of which legal action to take in the event of denial of usage or service disruptions.
The administrative court process is always open for authorization to use the public facility (1st stage) ; The defendant is the municipality concerned .
In the case of disputes in the usage relationship (2nd level), a distinction must be made between the following: If the organizational form is public law and the usage relationship is public law, the administrative court process is also opened, the defendant is the municipality. If the organizational form is governed by public law, but the usage relationship is governed by private law, an action must be taken before the civil court ; The respondent is then the legal entity under public law (e.g. the public-law institution operating the swimming pool). This also applies to the case of a legal form under private law.
