GERMANY

The 10th Congress of

The International Association of Supreme Administrative Jurisdictions

Sydney and Canberra, 2010

Review of administrative decisions of government by administrative courts and tribunals.

National Report

for the Federal Administrative Court of Germany

(Bundesverwaltungsgericht)

Presented by

Ulla Held-Daab

Judge at the Federal Administrative Court

Leipzig, September 2009

2Review of administrative decisions of government

by administrative courts and tribunals 10th congress of the IASAJ, Sydney, March 2010

Answers to the question form

1. Extent of the jurisdiction or competence

1.1. Categories of administrative decisions eligible for review

Access to administrative courts in Germany does not depend on the form of the

administrative measure challenged by the claimant, but relies on the principle that all

violations of individual rights by public authorities can be brought to court, regardless

of their legal form (see also section 1.2. of this paper).

The jurisdiction of the administrative courts in Germany therefore comprises the

judicial review of individual administrative decisions (Verwaltungsakte), public law

contracts (öffentlich-rechtliche Verträge), bye-laws (Satzungen) and delegated

legislation (administrative regulations authorised by an act of parliament and ranking

below statute law - Rechtsverordnungen). This includes the judicial review of plans

taking the form of administrative decisions (e.g. project approval plans –

Planfeststellungsbeschlüsse) or having been passed as bye-laws (e.g. development

plans – Bebauungspläne).

Delegated legislation and bye-laws may be directly challenged if they are based on

the Federal Construction Code (Baugesetzbuch) or if state law (Landesrecht) permits

such actions (article 47 para. 1 of the Administrative Court Act – Verwaltungsge-

richtsordnung – VwGO – see section 2.1.1. below). If neither is the case, the courts

may decide on the legality of such regulations only if it is relevant to state the

lawfulness of a measure which in itself is eligible for review.

Official declarations and purely factual acts are also subject to judicial review, as

there is a possibility that they infringe on individual rights (e.g. governmental support

to warnings against certain new age religious groups: decision of 27 March 1992 –

3BVerwG 7 C 21.90 – BVerwGE 90, 112; or publishing lists assessing the quality of

merchandising goods: decisions of 18 April 1985 – BVerwG 3 C 34.84 – BVerwGE

71, 183 – transparency lists of medicine; of 18 October 1990 – BVerwG 3 C 2.88 –

BVerwGE 87, 37 – contaminated wine, and of 7 December 1995 – BVerwG 3 C

23.94 – Buchholz 11 Art. 12 GG Nr. 240 – quality tests of animal fodder).

Legal statutes enacted by the federal parliament or by the parliament of a federal

state (Landesparlament) cannot be challenged directly before the administrative

courts. Yet they are open to review as far as they empower the public authorities to

set up administrative regulations or to take measures that can possibly have an

impact on individual rights. If their lawfulness depends on the constitutionality of the

statute authorising them, further procedure depends on whether the court deems the

relevant statutory provisions unconstitutional. If so, it has to refer the question to the

Federal Constitutional Court and, after having received its decision on that point,

decide the case accordingly. If it holds that there is no breach of the constitution, that

is, if it thinks the statute constitutional or at least open to an interpretation that meets

the requirements of the constitution, it has to decide on its own.

1.2. Criteria determining the jurisdictional competence – exemptions from review

Article 40 of the Administrative Court Act (VwGO) states that the administrative

courts are competent to decide all litigation arising from questions of public law

except purely constitutional matters. Due to this general definition, there is no part of

the executive whose acts are principally excluded from judicial review. As far as their

lawfulness and the infringement on individual rights are concerned, even political acts

of the members of the state or federal government themselves ("staatsleitende Re-

gierungsakte") may be reviewed. However, since law is executed and administrative

measures are commonly taken by local authorities, there are in fact few acts of the

government that might be challenged by individuals.

Excluded from the court's competence are acts considered not to be bound by law,

for example the rendering and denial of acts of mercy (decision of 27 May 1982 –

BVerwG 2 C 50.80 – Buchholz 310 § 40 VwGO Nr. 197). The conferment of public

distinctions (medals and decorations = Orden und Ehrenzeichen) used to be held

4exempt from judicial review. This opinion however is not unanimously shared any

more, as there are statutory – though not substantively detailed – provisions

regulating such acts. The question seems to be rather, whether the unlawful

application of those provisions can possibly hurt any individual rights.

In matters concerning the internal organisation of public services there is a tendency

to acknowledge the legal quality and therefore the possibility of judicial review of

measures which were formerly considered exempt from it. Instructions to

subordinates concerning the exercise of their functions are open to review if they

concern individual rights of the person they are addressed to (decision of

16 December 2008 – BVerwG 2 B 46.08 – VBlBW 2009, 140: teachers are not

allowed to wear headscarves demonstrating religious opinions at school). Litigation

concerning the limits of the competences within self-governing bodies can be

submitted to judicial review if the disputed competences are part of a system of

checks and balances, and if there is no superior authority to decide the question in a

way binding for all concerned (decision of 31 March 2004 – BVerwG 6 C 25.03 –

BVerwGE 120, 255: a single representative of the chamber of trade has no right to

inspect the chamber's files concerning the review of the chamber's funds).

1.3. Relevant case law

See the decisions cited under 1.1. and 1.2. respectively.

2. Procedure

2.1. General description of applicable procedural rules 2.1.1. Statutes or regulations defining the fundamental procedural rules The organisation and competence of the administrative courts are mainly regulated in

the Judicature Act (Courts Organisation Act – Gerichtsverfassungsgesetz – GVG)

and the Administrative Court Act (cited above), both enacted as federal statutes

following principles outlined in the federal constitution (Basic Law – Grundgesetz –

GG).

5The most important of these constitutional principles concerning judicial procedure is

that there has to be an efficient judicial remedy for any violation of individual rights

(article 19 para. 4 GG). Another of these constitutional principles is that the judge

competent to handle the case has to be determined beforehand (before the case

arrives at the court) by legal provisions, in order to prevent any arbitrary choice of the

judge in charge holding that this is a suitable instrument to minimise any influence of

the administration of the court (i.e. the president) on the outcome of the matter

(article 101 para. 1 GG). The judge's independence (article 97 GG) is guaranteed by

the constitution to protect judicial decisions against political or private influence and

to encourage the judge’s inner independence by this assisting legal framework. As a

result, judges cannot be sanctioned for the way they handle cases or decide them,

unless a blatant and voluntary breach of law is proved. Professional judges hold

lifetime-tenures (up to the age of 65/67) and cannot be moved against their will.

The right of the parties to be heard in court (article 103 para. 1 GG) ensures that they

have the opportunity to submit their claims and briefs and to comment on the

submissions and briefs of their adversary. To prepare their statements they may

inspect the court's files as well as the files handed over by the administrative

authorities (article 100 VwGO). The court has to inform the parties about any relevant

legal points not discussed yet, and give them sufficient delay to consider the

information and give their comment on it. The right to be heard also implies the

obligation of the court to take all relevant submissions into due consideration.

Detailed regulations establishing the hierarchy of administrative courts, defining their

respective competences and guiding the proceedings are to be found in the

Administrative Court Act (VwGO). On points not regulated there, it refers to the

provisions of the Civil Procedure Act (ZPO), as far as the differences between civil

and administrative judicial procedure allow their analogous application (article 173

VwGO). In several points the Administrative Court Act authorises the states (Länder)

to enact legal statutes determining certain details of procedure (for instance, whether

an action challenging an administrative decision should be addressed against the

public authority having issued the decision, or rather against the public body

represented by that authority). The Länder are also empowered to regulate certain

exemptions from federal rules, e.g. of the obligation to demand an administrative

6review of the lawfulness and merits of the contested decision before instigating court

proceedings.

Fundamental procedural rules defined by the Administrative Court Act are the

following:

- The claimant’s right to dispose of his claim

The claimants have the right to dispose of their claim as they see fit. Therefore,

the court's decision cannot go beyond the object of the claim or alter it, although

the court is not bound to the exact wording of the applications and moves (article

88 VwGO). Claimants may change their action with the consent of the respondent

or if the court thinks the change appropriate (article 91 VwGO). Claimants may

also finish proceedings by withdrawing their claim. They are free to do so as long

as they have not submitted their application in the oral hearing yet; afterwards

withdrawal is possible only with the consent of the respondent (article 92 para. 1

VwGO).

- The principle of oral hearing

The decision in main proceedings (as opposed to interim or emergency

proceedings) is based on the outcome of an oral, public hearing (article 101 para.

1 VwGO), of which major minutes must be recorded (article 105 VwGO referring to

article 159 to 165 of the Civil Procedure Act – Zivilprozessordnung – ZPO).

- The principle of ex officio investigation

The court has to investigate the matter ex officio regarding the points of fact as

well as the points of law relevant to the decision. It has to take the necessary

evidence even if not offered by any of the parties. The burden of proof becomes

relevant only if, after full investigation, an item of fact crucial for the success of the

claim cannot be established to the full conviction of the court.

7- The principle of free assessment of evidence

The court is not restricted by formal rules when assessing evidence or reaching its

decision. The decision’s main grounds are to be set out in writing (article 108 para.

1 VwGO). Giving convincing grounds for a decision is an essential requirement.

- The principle of fair trial including the right to be heard The parties have a right to be heard and to comment on facts and evidence (article

108 para. 2 VwGO and article 103 para. 1 GG, see above)

2.1.2. Procedural roles of the parties and the court – no adversarial system

The parties' role is mainly to instigate proceedings and, by the aim and extent of their

claim, to define the object of review. The court does the research to find the relevant

legal provisions and precedents ex officio. It investigates the facts and takes and

assesses the evidence. Parties may draw the court's attention to certain points of law

or to certain decisions they think relevant. However, they are not obliged to cite

decisions not favourable to their claim. It is the role of the court to ensure that all

relevant material is found and considered. In general, parties' suggestions to take

evidence are not binding for the court. Yet if a party submits a formal demand to take

evidence in order to prove a certain point of fact, it can be rejected only on a definite

number of legal grounds (e.g. if the court considers the fact already proven or if the

outcome of the case could not be influenced by establishing the fact).

However, even while the case is pending in court, the right of the parties to dispose

of the subject of the litigation remains almost unrestricted. Under the conditions cited

above, the claimant may withdraw his claim. The defendant – normally the public

authority – may yield to the demand, for instance repeal or alter its decision or give

the claimant what he was looking for. Parties may, at any time, settle the case by

negotiation, and the court is under a permanent obligation to promote such

settlement.

2.1.3. Representative of the public interest - no public prosecutor

In German administrative procedure, there is no public prosecutor. There is however

a Representative of the Public Interest at the Federal Administration Court and,

8depending on state legislation, also at the Administrative and Higher Administrative

Courts. These representatives may submit suggestions how legal questions might be

solved in a way that ensures the uniform application and development of law in the

public interest. The representatives have to be heard by the court and may join in the

proceedings. Sometimes they are also empowered by state legislation to represent

the state or the state's public authorities as parties of the litigation (article 35, 36

VwGO).

2.1.4. Written and oral proceedings - usually oral hearing

In principle, judgments are given after an oral hearing (article 101 para. 1 VwGO).

Yet the hearing itself is to a great extent prepared by legal briefs (article 86 para. 3 to

5 VwGO). During the hearing, the parties may refer to their written submissions. They

are not expected to repeat their content, but may concentrate their pleadings to the

main issues.

Written procedure takes place if the parties waive their right to an oral hearing (article

101 para. 2 VwGO) or if the court, after hearing the parties, holds that the facts are

clear and the legal questions at stake not too difficult, so that the matter might be

decided by a Court Order (Gerichtsbescheid; article 84 VwGO). In this case the

parties, on appeal, have the right to an oral hearing before the same court or to

challenge the Court Order in the way a judgment could be challenged.

In proceedings not to be terminated by judgments, for example in emergency

proceedings where the applicant seeks an interim injunction, no oral hearing is

prescribed (article 101 para. 3 VwGO). Nevertheless it may take place if the court

thinks it helpful.

2.1.5. The bench – usually a panel of judges In principle, cases are heard and decided by a panel of judges. At the Administrative

Courts (1st instance), there are panels (Kammern) of three professional judges. The

bench for oral hearings is completed by two honorary judges elected for a certain

period. Court orders and other decisions rendered without oral hearing are made by

the professional judges alone. Applications for interim injunctions in asylum cases are

9handled by a single judge. In other matters and proceedings the panel can appoint

one of its members to decide the case as a single judge, if it is not too complex in

points of law or fact (article 6 VwGO). Whether the case is heard by a single judge or

a panel, is largely open to the discretion of the court and depends on the matter in

question.

At the Higher Administrative Courts (2nd instance) the judges sit in panels (Senate) of

three to five professional judges depending on detailed regulation in state law. It can

also provide that the bench is completed by honorary judges in oral hearings (article

9 para. 3 VwGO). At the Federal Administrative Court (3rd instance), five professional

judges constitute a panel (Senat). With the exception of disciplinary cases there are

no honorary judges at the federal level.

A Grand Panel consisting of judges of all different panels of the Federal

Administrative Court ensures that the panels do not diverge from each other in the

interpretation of legal provisions falling into the competence of more than one of

them.

A Joint Panel of the presidents and – depending on the case - 4 selected judges of

the federal courts of the different branches of jurisdiction (civil, administrative, labour,

finance, social) ensures that the federal courts do not diverge from each other in the

interpretation of legal provisions falling into the competence of more than one branch

of jurisdiction.

2.2. The conditions of locus standi Whether the claimant has to show that individual rights have possibly been violated,

or whether it suffices to demonstrate that legally protected interests are concerned,

depends on the kind of action brought to court.

Generally speaking, there are three main types of action: proceedings to have a legal

or factual action of the authority quashed or reversed; actions to obtain something

denied by the authority, and actions asking the court to rule on the existence or the

extent of a right or legal position, if contested.

102.2.1. Legal standing deriving from the possible infringement on individual

rights If the claimant demands that an administrative decision be quashed or issued

(Anfechtungs- oder Verpflichtungsklage, article 42 para. 1 and 2 VwGO), or if he

seeks a judgment obliging the administrative authority to take or refrain from other

measures not having the quality of administrative decisions, her or his claim is

admissible (that is, the court will enter into the questions of substantive law) only if

there is at least the possibility that the claimant's individual rights have been violated.

This does not imply that the claimant has to be the addressee of the act or denial in

question. Legal standing may result from the fact that third persons have obtained an

act in their favour which allegedly, in disregarding a statutory provision, violates

individual rights of the claimant. Then the question arises whether the statutory

provision in question can possibly confer individual rights upon the claimant. That is

the case if it is designed to protect not only the public interest, but individual interests

as well, and if the claimant belongs to the group of people protected.

Examples: If someone living in a residential area challenges the building permit

obtained by a neighbour, he or she can submit that the authorities have disregarded

provisions determining that this type of building is not allowed in residential areas

(decision of 16 September 1993 – BVerwG 4 C 28.91 – BVerwGE 94, 151 <158>).

Neighbours also can challenge the license to run a pub alleging that provisions

protecting them from unsupportable noise during the night have been disregarded

(decision of 7 May 1996 – BVerwG 1 C 10.95 – BVerwGE 101, 157 <163>). The

reason for assuming that such provisions confer individual rights and legal standing is

that they are designed to protect the neighbour's health and property. On the

contrary, the neighbour has no legal standing if, in granting the license, the

authorities have only disregarded provisions protecting the public interest or the

interest of third persons. For instance the neighbour of a pub cannot rely on the

allegation that the authority has wrongfully considered the pub owner reliable

although he regularly fails to guarantee legally required working conditions to his

employees. Even though the neighbour might reflectively profit from a strict

application of the law resulting in a repeal of the license, the object of the provisions

in question is not to protect his own interests. A more recent example is given by a

11decision that customers of a telecommunication agency have no right to demand that

the competent administrative authority issue an act against the agency obliging it to

correct an unlawful increase of prices. The court held that the relevant provisions

were designed only to protect the public interest in upholding an orderly

telecommunications market, and not the customers' interests in affordable prices.

The court stated further that a different interpretation could not be justified with regard

to constitutional and European law (decision of 10 October 2002 – BVerwG 6 C 8.01

– BVerwGE 117, 93).

2.2.2. Justifiable interest / legally protected interests

If claimants only seek a judgment stating a legal obligation or right, Article 43 VwGO,

taken literally, requires only that they demonstrate that there is a legal relationship

and that they have a justifiable, reasonable interest in obtaining the statement. Such

interests need not be of a legal nature, but may also be economic, cultural or social

interests. Legal literature and practice however tend to an analogous application of

the provisions concerning actions directed against administrative decisions, with the

result that claimants have to demonstrate a possible impact on their individual rights

as well (decision of 26 January 1996 – BVerwG 8 C 19.94 – BVerwGE 100, 262

stating that a landlord has no legal standing to challenge the local authority's list of

the heights of average rents for certain types of buildings or flats).

If a bye-law based on planning law or municipal law is challenged, claimants have

legal standing if the plan or the regulation may have an impact on their individual

rights.

2.2.3. Public action

Acting on behalf of others is possible only if authorised by statutes. For example, one

heir is entitled to act on behalf of his co-heirs in order to prevent a diminishing of the

estate (“actio pro socio”, see article 2039 of the Civil Code – Bürgerliches

Gesetzbuch – BGB).

Lately it has been recognized that the ban on public action and the strict standards

defining individual rights make it difficult to enforce statutes protecting the

12environment. Therefore laws have been passed which authorize associations,

working for the protection of the environment, to instigate proceedings against

measures violating conservation law, for instance, against a planned project

endangering the habitat of protected species (decisions of 29 April 1993 – BVerwG 7

A 3.92 – BVerwGE 92, 263 and of 12 June 2002 – BVerwG 7 C 2.02 – Buchholz

406.27 § 52 BBergG Nr. 4).

2.3. Access to the court

Parties have direct access to the Administrative Courts competent to decide most

cases in first instance. Legal representation is compulsory only in the Higher

Administration Courts and in the Federal Administration Court (article 67 para. 1 and

4 VwGO), even if these courts exceptionally do act as courts of first instance.

In cases where representation is compulsory, any attorney or university professor

eligible to be a judge may act as a legal representative. Public authorities may be

represented by civil servants of the same qualification.

2.4. Submitting legal demands using electronic technologies (Internet)

Since 2004, the Federation and several states have allowed legal demands, briefs

and other documents to be submitted to an administrative court using electronic

technologies. These regulations are based on article 55a para. 1 VwGO declaring

that electronic documents may be sent to the courts if delegated legislation of the

competent federal or state government allows this mode of transmitting.

The government's regulations have to state that documents which would have to be

signed personally if transmitted in paper form must bear a qualified electronic

signature or fulfil comparable conditions to ensure their authenticity and integrity. If

the court itself chooses to transmit judicial documents using electronic technology,

article 55a para. 3 VwGO provides that the requirement of a judge's or clerk's

signature is also fulfilled by a qualified electronic signature.

2.5. Legal Aid

13Every person whose rights have been infringed by an unlawful administrative act and

whose income does not exceed a certain net amount has a right to obtain Legal Aid

in order to have access to justice. The principle is that defending one's rights should

not endanger the financial security of the person concerned or of their families. Legal

aid is paid by the state and covers all the costs of taking a matter to trial. If the

applicant is granted legal aid he or she will nevertheless be expected to contribute as

much as can reasonably be expected from the applicant to the costs of litigation.

In proceedings of the first instance, where representation is not compulsory, Legal

Aid to finance legal representation is granted only if the claimants are not able to

conduct their case adequately on their own. Considering the complexity of most fields

of administrative law, it is rare that an application for Legal Aid may be refused on the

grounds that legal advice is not necessary. It may be refused however if the planned

course of action is unreasonable because the claim is obviously inadmissible or

evidently has no sufficient prospects off success. The same applies, as the case may

be, to the respondent.

2.6. Suspension of administrative action – suspending effect of most regular actions

As a general rule, article 80 para. 1 VwGO provides that the claimant wishing to

challenge an onerous administrative decision, has to submit a formal objection to the

administrative authorities before filing a claim in court. This objection (“Widerspruch”)

is in principle sufficient to suspend the execution or implementation of the act and it

creates the obligation of the authority to reconsider the matter both under legal and

practical aspects. If the administrative authority fails to revoke the act on objection,

the claimant may file an action demanding to quash the administrative decision. The

claim has the same effect of suspension.

However, in several cases defined by law, where immediate execution is crucial for

the successful implementation of a measure, the law states that, exceptionally, no

suspension takes place unless granted either by the administrative authorities or, on

application in an emergency procedure, by the court. In other emergency cases the

administrative authorities are empowered to order an act to be executed directly.

14Then the addressee may ask the court to issue an interim injunction prohibiting the

execution for the time it takes to decide the case (article 80 para. 5 VwGO).

These rules of suspension also apply where the claimant challenges an act obtained

by a third party (article 80a VwGO).

2.7. Injunctions ordering the executive to produce non-public or confidential documents - In-camera procedure

Article 99 para. 1 VwGO obliges the administrative authorities to hand over to the

court all files and documents or electronic data relevant to the case and to answer

any questions from the bench. If the authorities refuse to disclose documents

claiming they are confidential, the Higher or the Federal Administrative Court may, in

an interim procedure regulated in article 99 para. 2 VwGO ("in-camera procedure"),

order the documents to be produced if there is no paramount public interest in their

keeping confidential. Even if that be the case, the court – though not the claimant –

has the right to see the documents at the place they are kept and to use – albeit not

cite – them in deliberating and assessing the outcome of the case (article 99 para. 2

sentences 8 to 10 VwGO; decisions of 1 February 1996 – BVerwG 1 C 37.95 –

Buchholz 310 § 99 VwGO Nr. 24 and of 13 June 2006 – 20 F 5.05 – Buchholz 310 §

99 VwGO Nr. 42). Considering the claimants' right to be heard, it is doubtful whether

information revealed by such documents could be used to their disfavour, because

they had no chance to comment on it (see decision of 1 February 1996, cited above).

The provisions regulating the "in-camera procedure" do not give the claimant a right

to demand a court's order requesting the authorities to disclose specific files or

information. The procedure is only designed to decide whether an administrative

refusal to comply with court orders is justified or not. It does not enable the claimant

to obtain a court's order to disclose files the court thinks irrelevant (decision of 26

October 2006 – BVerwG 20 F 7.06 – cited from the database Juris).

2.8. Emergency and interim procedures

15

Judicial protection in urgent cases may result in ordering the suspension of the

execution or implementation of an administrative decision (see above section 2.6.). It

also may lead to decisions ordering interim (provisional) measures (article 123

para. 1 VwGO). In that case, even a definite decision on the fundamental question is

possible, if otherwise no effective remedy would be possible. That is the case if the

applicant, in waiting for the final judgment, would suffer a violation of rights

impossible to correct or to compensate adequately afterwards. For instance, if one of

the candidates of an oncoming election was unlawfully denied the right to take part in

a pre-election TV-discussion, and the court could not hear the case before the

election, an injunction might order the TV-company to let the candidate take part. In

cases where more than one candidate apply for appointment to a position in public

service, an injunction may stop the authority to appoint one candidate until the court

has ruled on the legality of the selection procedure.

In order to obtain an interim injunction deciding the fundamental question, the

applicant has to establish that the court's main procedure cannot be concluded in

time, and that the main proceedings probably will lead to a final decision in his favour

(decision of 13 August 1999 – BVerwG 2 VR 1.99 – BVerwGE 109, 258 partly

overruling the executive's denial of a permission to give evidence before an

investigation committee of Parliament).

3. The powers of the administrative judge1

3.1. Hierarchy of legal standards

The various types of legal rule stand one below the other in a clear and more or less

strictly hierarchical relationship. There is an order of priority between legal rules. In

each case the rule one step below must be consistent with the rule one step above it.

If that is not the case, then the lower, inconsistent rule is null and void. This usually

applies from the moment the two rules are in collision, i.e. ex tunc.

3.1.1. National law Federal constitutional law

1 Compare especially G. Robbers, An Introduction to German Law, 4th Ed, 2006, p. 22-27, 94-97 et al.

16As far as national law is concerned, the federal constitution, the Basic Law

(Grundgesetz – GG) is paramount to all other sources of law. Article 1 para. 3 GG

rules that the Fundamental Rights are binding with immediate effect on legislation, on

judicial decisions and the executive. Article 20 para. 3 GG says that legislature is

bound by the constitutional order. The executive and the judiciary are bound by law

and justice. In this way the constitution stipulates its primacy over all other laws of the

state.

Formal statutes passed by Parliament Next in rank to the constitution is the formal statute passed by Parliament. The

constitutional principle is that Parliament has to decide all matters having an impact

on fundamental rights.

Delegated legislation and bye-laws Below the rank of the formal statutes come all forms of sub-statutory rules (statutory

instrument) set up by delegated legislation and bye-laws for example issued by the

municipalities or other bodies empowered with the right of self-governance by legal

statutes.

Federal and state law As Germany is a federal state the collision of federal law and state law needs

clarification. The main rule is that federal law "breaks" state law. This means that if

the law of a particular State collides with a law made by the Federal Government,

then the federal legislation takes precedence. No further distinction is made

according to the rank of the law in question. Subordinate legislation at federal level

will take precedence even over the constitution of a State, insofar as the Federation

has the competence to make a law on the matter in question.

Administrative regulations In more recent times administrative regulations have become increasingly important.

They are initially promulgated by the executive as internal administrative guidelines

and are thus intended to be binding only on the administrative authority to which they

are directed. They aim at producing the greatest possible consistency in the

interpretation, concretisation and application of the law. Owing to the duty to treat like

cases alike which arises from article 3 para. 1 GG they can also have force outside of

17the administration. In addition the Federal Administrative Court has recognised that

the administrative organs of state have their own competence to concretise statute

law in terms of which administrative regulations an also have binding effect for the

courts within the margin defined by the statute itself (decision of 19 December 1985 –

BVerwG 7 C 65.82 - BVerwGE 72, 300 <320> – concerning a General Calculation

Basis for the approval of nuclear power stations).

3.1.2. International and supranational Law

Public International Law Public international law (law of nations) in principle takes its place beside Germany's

national law. In terms of article 59 para. 2 GG, international treaties require

incorporation by statute to have any force within Germany. This applies insofar as

they regulate the political relations of the Federation or relate to subjects of federal

legislation. They then have the status of an ordinary, formal, federal statute. This is,

for example, the position regarding the European Convention for the Protection of

Human Rights and Fundamental Freedoms. The Federal Constitutional Court treats

the European Convention for the Protection of Human Rights and Fundamental

Freedoms as an assisting help for the interpretation of the fundamental rights of the

German Constitution.

A further detail is contained in article 25 GG: The general rules of international law

are part of federal law. They take precedence over statute and create rights and

duties for the inhabitants of the Federal Republic without more. This is a particularly

clear instance of the open and friendly attitude which the Basic Law takes towards

international law. Such general rules of international law require no act of

incorporation to have binding force within Germany. On the other hand, up to the

present only a few fundamental principles have been recognised as general rules of

international law (e.g. the principles of the equality of sovereign states, of non-

aggression, of the right of access to independent courts for foreigners, and the ban

on torture and inhuman treatment etc.).

Law of the European Union The Constitution allows the Federal Republic of Germany to transfer sovereign

powers to international organisations by statute (article 24 para. 1 GG). As far as the

18European Union is concerned, article 23 GG contains very detailed corresponding

provisions. The law of the European Communities exists as an independent legal

system. It is the general view that the law of the European Communities takes prece-

dence over German law, including the constitution, though without any derogatory

effect. Primary community law, in other words the founding treaties of the

communities as well as the various complementary and amending agreements, can,

however, be scrutinised by the Federal Constitutional Court for compatibility with the

Basic Law (Normenkontrolle). This can be done, because in terms of article 59 para.

2 GG the Constitutional Court is entitled to test the constitutionality of the

parliamentary statutes which approve the various treaties.

Whether a comparable competence may be assumed with respect to secondary

community law, in other words the laws promulgated by the various organs of the

Communities, is still under discussion. A particular problem arises as to whether they

are subject to being tested for compatibility with the Fundamental Rights guaranteed

in the German Constitution. On this point the Federal Constitutional Court has ruled

that in principle such testing is possible, and that the secondary community law is

thus subordinate to the German Fundamental Rights, insofar as it has to be applied

by German authorities. The Court adds that the necessary enforcement of rights is

undertaken by the Federal Constitutional Court in co-operation with the Court of

Justice of the European Communities in Luxembourg. The Federal Constitutional

Court will concern itself with the general protection of a certain absolute minimum

standard, while the Court of Justice of the European Communities will guarantee the

protection of Fundamental Rights in specific cases. The Federal Constitutional Court

thus claims a sort of reserve jurisdiction in cases in which the protection of

fundamental rights by the Court of Justice of the European Communities no longer

seems to be generally guaranteed due to failures in many individual cases or where

in a particular case fundamental rights have suffered an intolerable violation. This far-

reaching proposition is largely theoretical, but it is justified by peculiarities of a

gradual transfer of ever more sovereign rights and thus public responsibility to the

European institutions.

Administrative courts are bound to follow or – in special cases - respect the decisions

of the European Court of Justice in Luxemburg, the European Court for Human

Rights in Strasbourg and the national Constitutional Court.

19

3.2. Reviewing the executive's interpretation of legal statutes

Criteria of Interpretation in general In general courts tend to follow the traditional methodical canons of legal

interpretation. The literal approach to interpretation asks what the current possible

meaning of the words of the rule may be. The grammatical approach looks carefully

at the grammatical structure, and often the position of a single comma can change

the entire meaning of a sentence. The systematic approach considers the rule in

the system of the statute as a whole, which produces, for example, indications of the

character of the provision - whether it is a rule or an exception, or what its scope in a

particular sphere of life is. Comparisons with similar or different rules in the same

context also fall under the systematic approach. "Genetic" interpretation looks for

indications of how a provision should be interpreted in the events immediately

surrounding its creation, for example, in the records of parliamentary debates and the

reasons given for the passing of the law. This is usually done with the intention of

discovering the subjective will of the legislator. The broader historical approach to

interpretation puts the rule in the context of wider historical developments and sees it

as a part of political and social development, as part of the history of law and of

ideas. Finally, teleological interpretation asks what the meaning and purpose of the

rule is. Various other approaches to interpretation are often listed alongside these

classical approaches, for example the comparative law approach to interpretation,

the application of rules with reference to their likely results, their acceptability, and, in

the context of European integration, the interpretation most likely to promote this aim.

Up to the present no particular order in which the approaches should be applied and

no hierarchy of approaches have been established. Today the teleological approach

seems to a certain extent dominant while the words of the text serve to limit the

number of possible interpretations. Because of the pre-eminent status of the

constitution, the constitutional conformity approach to interpretation

(verfassungskonforme Auslegung) which has been developed by the Federal

Constitutional Court is of particular importance. If a law is amenable to several

different interpretations, of which one would bring the law into conflict with the

constitution and another would be compatible with the constitution, then that

interpretation is to be preferred which would make the law compatible with the

20constitution. In this way the constitutional authority of the legislature is respected in

upholding its regulation as far as the constitution allows.

Judicial review of the executive's interpretation of legal statutes The executive's interpretation of legal statutes, commonly found in internal directives

and guidelines, is subject to an unrestraint judicial review. There is no prerogative for

the executive or even for Parliament to determine how a statutory provision should be

interpreted. The court is not bound by policy decisions of the executive or any other

public authority. Even the records of Parliament do not determine the judicial

interpretation, but they can and should be cited as a means to prove the legislators'

intent and the historical purpose of the regulation. Especially in the case of new

statutes the views of the legislator will be of greater relevance in determining this

objective will than would be the case for older laws. If both - intent and the historical

purpose of the legislator - are not reflected in or at least compatible with the wording

of the statute, or if they are contradicted by the systematic context of the provision in

question or by the result of the teleological interpretation, the court has to weigh the

relative merits of the various elements of interpretation and to define the meaning of

the provision.

Exceptionally, in cases where the legal statute gives the administration a margin of appreciation when interpreting legal terms, judicial review can only control whether

the limits of that margin have been respected. For opening such a margin of

appreciation it is not sufficient to use general terms (as "public security" or "good

morals" or even the "public interest"), because interpreting imprecise terms is one of

the essential tasks of judicial review. Margins of appreciation are supposed to be

opened only where the law defers to a special competence or where the competent

body is specially qualified to properly assess qualities or risks of the relevant matters.

Examples are rating decisions of independent committees (decision of 26 November

1992 – BVerwG 7 C 20.92 – BVerwGE 91, 211), prognostic decisions depending on

complex technical assessments (decision of 19 December 1985 – BVerwG 7 C 65.82

- BVerwGE 72, 300/320), assessing the results of exams (decision of 12 July 1995 –

BVerwG 6 C 12.93 – BVerwGE 99, 74) and the assessment of civil or military

servants (decision of 26 November 1986 – BVerwG 1 WB 117.86 – BVerwGE 83,

251).

213.3. Reviewing the executive's interpretation of treaties

In reviewing a decision, the courts are not bound to the executive's interpretation of

any treaty relevant to the case. What the parties of the treaty intended and how each

of them understood the other's declarations in forming the treaty has to be

considered as items of interpretation led by general rules. Regarding the

interpretation of international treaties, the Vienna Convention on the Law of Treaties

is applied. As far as national public contracts are concerned, the court firstly has to

seek out what is really intended and not adhere to the literal meaning of the words

used (see article 133 Civil Code – BGB). Secondly, the content of the declaration is

what the (reasonable) recipient would normally have understood by it (see article 157

BGB). The court has the right and the duty to assess the items of interpretation

according to methodical standards.

3.4. Judicial review of discretionary measures Discretion versus margin of appreciation in interpreting legal terms In Germany discretion (Ermessen) is not the same as having a margin of

appreciation in interpreting legal terms or in recognizing facts

(Beurteilungsspielraum). If law gives discretion the authority may make whichever

decision seems appropriate to it. Discretion only relates to the drawing of a legal

conclusion from a given set of facts (Rechtsfolgeermessen).

Discretion may extend to deciding whether the authority should act at all. Or the

authority must act, and merely has discretion as to what sort of action to take.

Generally speaking the point of discretion is to reach the most appropriate decision in

a specific situation which the legislature could not provide for in advance. Discretion

must always be exercised with reference to the aims of the statute which grants the

discretionary power. It is generally created when a statute uses the words "can"

(kann) or "may" (darf) in setting out the legal consequences of a particular situation.

For example, article 15 para. 1 of the Assemblies Act (Versammlungsgesetz)

provides that an assembly "can" be prohibited if it poses a threat to public order or

safety. Discretion is more limited when the statute uses the word "shall" (soll). In

cases where a public body "shall" do something it is generally obliged to attach a

particular legal consequence to the situation described. However, in exceptional

22cases, where good reasons for doing so exist, it can depart from this rule. For

example, the call-up of a conscript "shall" be postponed in cases of undue hardship.

Standards of judicial review of discretionary measures

The standard of judicial review of discretionary measures is stated in article 114

VwGO (Administrative Court Act), enabling the court to review whether the

administrative authorities have exercised their discretionary power according to the

purpose for which it was conferred to them, and whether they have respected its

legal limits (article 40 of the Administrative Procedures Act –

Verwaltungsverfahrensgesetz – VwVfG).

These provisions limit the judicial review of discretionary measures inasmuch as the

court is not allowed to exercise its own discretion and to quash an administrative

decision because it thinks another measure would be more appropriate than the one

the authority chose. However, within these limits the court may take a close look on

discretionary measures of the authority. It does not only control whether the

substance of the decision was in line with the applicable law and whether the

reasons given by the administrative authorities were consistent with the substance.

Beyond that, the court also reviews whether discretion was exercised in a proper

manner, because – of course – the conferment of discretion is not a license to act

arbitrarily.

Legal and reviewable limits to the exercise of discretion are the following:

The authority must consciously exercise its discretion. Otherwise there is an illegal

non-use of discretion (Ermessensnichtgebrauch). It is unlawful if the authority does

not realise it has discretionary power, therefore assuming to be bound to act in a

certain way and issuing an act accordingly. In those cases the authority has failed to

weigh the different alternatives to act in the light of the purpose for which the

discretionary power was conferred.

The authority must make full use of the discretionary power which has been granted

to it, to avoid an illegal undercutting of discretion (Ermessensunterschreitung). On

the other hand, the authority may not exceed the limits of its discretion either

(exceeding of discretion - Ermessensüberschreitung). Statutes giving the

23administrative authorities discretionary power usually enable them to choose from a

range of alternative decisions. If the authority chooses an option not included in that

range, it has exceeded its legal power and the act is unlawful.

The authority may not base its decision on irrelevant considerations (misuse of discretion - Ermessensfehlgebrauch); and, finally, the authority may not infringe on

the Fundamental Rights in exercising its discretion. In the case of a misuse of

discretion, the authorities have disregarded the purpose for which the discretionary

power was given them, and have acted on principles not consistent with that purpose

(decision of 22 December 1993 – BVerwG 11 C 46.92 – BVerwGE 95, 15 <21>). A

blatant case of misuse would be a decision taken for discriminatory reasons (decision

of 27 April 1984 – BVerwG 1 C 26.82 – Buchholz 451.20 § 70 GewO Nr. 2: arbitrary

exclusion of a merchant from participating in a market only because her husband was

allowed to participate already).

In certain rare cases, although the authority in principle has discretion, the particular

facts of the case are such that there is only one proper result. In this situation there is

said to be a reduction of discretion to zero (Ermessensreduzierung auf Null –

decision of 22 December 1993 – BVerwG 11 C 46.92 cited above). For example, this

would be the case if the fire brigade, due to limited capacity, has to choose between

pumping water out of a flooded cellar and fighting a major fire at a chemicals factory

which has broken out at the same time. In this case there is only one proper decision

- the fire brigade must choose to fight the fire first.

As the administrative authority, in using the power conferred, also has to respect the

legal limits of its power stated in other provisions, judicial review is extended to the

control whether such limits have been respected, notably, whether the authority has

respected individual rights guaranteed by other legal statutes or by the constitution,

and whether an onerous act is consistent with the principle of proportionality which

is also derived from the constitution. According to this principle, the onerous act has

to have a legal purpose and has to be able to serve it. It furthermore has to limit its

impact on individual rights to the extent necessary in order to fulfil the purpose.

Finally it must, even if it is necessary, not subject the addressee to disadvantages

totally out of proportion to the advantages gained in fulfilling the legal purpose.

Proverbially speaking, it is not proportional to take a sledgehammer to crack a nut.

24

3.5. Possible contents of court orders

The powers of the administrative judge depend on the form of action taken by the

claimant.

If an administrative decision is challenged (which action roughly equals a writ of

certiorari or the French recours pour excès de pouvoir) the court may only quash the

decision (as a whole or partly), or dismiss the claim. If the claimant requests that an

administrative decision be issued, the court may order the competent administrative

authority to do so or, if the right of the claimant depends on facts not yet established

and which the court cannot or need not investigate, to issue an act following the legal

directives laid down in the court's decision. If the authority has to exercise its

discretion, the court may give binding guidelines what crucial points are to be

respected or avoided when exercising it. However, the court cannot amend or alter

an administrative decision, because that would imply a breach of the separation of

powers in assuming a discretionary power reserved for the administration. The

bench, in discussing the matter with the litigators, may suggest however that

amending the act might be advisable from a legal point of view. If the authority

complies, proceedings may be finished with mutual consent of the parties.

If the claimant requests a measure different from an administrative decision to be

taken or discontinued, the court may order the administrative authority to do so. In

case the claimant only requests a judicial declaration, the court can either give it or

dismiss the claim.

As far as the court's powers in interim procedures are concerned, please refer to

section 2.8. above.

3.6. Retroactive effect of quashing orders Quashing orders have retroactive effect. Administrative decisions that have been

quashed by the court are considered as non-existing and as never having been

existing. Factual or legal acts based on such acts must be revoked or otherwise be

remedied; in case this is not possible, the administration may be liable to damages. If

25legal provisions are nullified, they are treated as never having been in vigour (ex

tunc). Yet the acts based on them remain valid unless they have been challenged in

due time themselves.

3.7. Enforcing judicial decisions

Quashing orders are self-executing. Orders to issue an administrative decision can

be enforced by obliging the administrative authorities to pay a penalty (article 172

VwGO). If an authority has been condemned to pay a certain sum of money and has

failed to do so, the court can order the execution of its judgment in analogy to the

rules governing the execution of a judgment in civil procedure, with the exception that

objects necessary to serve the public interest may not be distrained for compulsory

sale (article 170, 173 VwGO). However, as a general rule, German authorities usually

comply with binding judicial decisions, and enforcement procedures are extremely

rare.