Abuse of discretion
Definition
Der Abuse of discretion is a central concept in administrative law and describes the exercise of administrative discretion that is not legally covered or is objectively inappropriate. The term is closely linked to the legal control of official actions and forms an important basis for judicial review of administrative acts.
Legal basis
Statutory basis
The law governing the exercise of discretion and the review of its abuse is codified in Germany, particularly in the Administrative Procedure Act (VwVfG). Sections 40 and 114 of the Administrative Court Code (VwGO) regulate the scope and limits of judicial review of administrative discretion.
Function of discretion
By granting discretion, an administrative authority is given the option to choose between various legal consequences. If discretion is lacking or exercised incorrectly, this is called a discretionary error. Abuse of discretion is one of several forms of discretionary errors.
Systematics of discretionary errors
The administration may not exercise its discretion arbitrarily. The exercise of discretion is subject to certain legal limits, and violation thereof triggers various forms of discretionary errors.
Types of discretionary errors
The following types of discretionary errors are generally distinguished:
- Failure to exercise discretion (also: underuse of discretion): The authority erroneously considers itself bound and does not use its discretion at all.
- Exceeding discretion: The authority exceeds the legal boundaries of its discretion.
- Abuse of discretion: Discretion is exercised on an improper basis, for example due to irrelevant considerations.
Within this system, abuse of discretion refers to cases where the authority does exercise discretion, but does so in an unlawful, particularly improper or arbitrary manner.
Characteristics of abuse of discretion
Improper considerations
Abuse occurs in particular when decisions are based on irrelevant, arbitrary, or unreasonable motives. These include, for example:
- Personal interests of decision-makers,
- Consideration of impermissible political influence,
- Discriminatory motives, or
- Ignoring relevant and significant aspects of the individual case (“deficit in balancing interests”).
Disregard for statutory purpose limitation
Abuse also occurs if the discretionary decision does not serve the purpose for which the discretion was granted (so-called purpose deviation). The decisive factor is whether the decision serves the goal intended by the statutory provision.
Disproportion of means
The use of an unsuitable, unnecessary, or disproportionate means to achieve a legitimate purpose can also constitute abuse.
External control and judicial reviewability
Administrative courts review discretionary decisions solely to determine whether there are errors in discretion, especially whether there is abuse. According to section 114 sentence 1 VwGO, an administrative act can be annulled if and to the extent the administration has not exercised its discretion at all or has exercised it incorrectly, in particular in the form of abuse.
Judicial review is limited to compliance with statutory requirements. The exercise of discretion itself is not evaluated as to whether the court would have made a different decision, but only whether the authority exceeded the statutory limits of discretion (exceeding discretion), did not exercise its discretion (failure to exercise discretion), or used improper criteria in its exercise (abuse).
Significance in administrative practice
Consequences of abuse of discretion
If a court determines that there has been abuse of discretion, the relevant administrative act is unlawful and will be annulled. The authority must then make a new decision, taking into account the court’s legal view; usually the court does not substitute its own discretionary decision for that of the authority.
Disputes and examples
Practical examples of abuse of discretion can be found, for example,
- in the selection process between several applicants for the grant of government benefits,
- in the revocation of permits based on political motives, or
- in the award of public contracts in disregard of suitability and equal treatment criteria.
Summary
Abuse of discretion forms a key standard for reviewing administrative decisions. It protects individuals and businesses from arbitrary or improper intervention and ensures compliance with the principles of the rule of law in administrative actions. Accurate identification and delimitation of abuse of discretion are fundamentally important for the legality of administrative acts and are shaped by extensive, especially judicial, practice.
Further literature
- Administrative Court Code (VwGO)
- Administrative Procedure Act (VwVfG)
- Kopp/Schenke: Administrative Court Code, commentary
- Sachs/Birkenfeld: Public Law
This article provides a comprehensive presentation of the concept of abuse of discretion from a legal perspective and serves as a reference work for all questions concerning the exercise of discretion in administration.
Frequently asked questions
What are the legal consequences of abuse of discretion by an authority?
Abuse of discretion, also referred to as a discretionary error, can have significant legal consequences. In German administrative law, abuse of discretion—for example, if the authority is guided by improper considerations or fails to exercise the prescribed discretion in a transparent way—regularly leads to the unlawfulness of the corresponding administrative act. An affected party can challenge this by means of legal remedies such as objection or annulment action. The administrative court then examines whether there has actually been abuse of discretion. If such is found by the court, the court either annuls the challenged act or obliges the authority to make a new decision in compliance with statutory requirements. In certain cases, such as binding decisions, there may also be an obligation for the authority to perform a specific administrative act (section 113(5) sentence 1 VwGO).
How does abuse of discretion differ from other discretionary errors?
Abuse of discretion is one of several types of discretionary errors distinguished in administrative law. In addition to abuse of discretion, there is in particular failure to exercise discretion—that is, omission of any exercise of discretion despite having the power to do so—as well as exceeding discretion, in which the authority exceeds the statutory limits of the discretion granted. Abuse of discretion means that discretion is exercised in principle, but the decision-making is based on improper, unlawful, or inappropriate considerations. Failure to exercise discretion occurs when the authority erroneously believes that it is required to take a certain measure without assessment, or when it completely fails to recognize that discretion exists. A precise distinction is necessary because judicial review of different types of discretionary errors entails different requirements.
By which standards does an administrative court review an alleged abuse of discretion?
An administrative court, in its review of administrative discretion, is subject to what is known as a restricted standard of review. Judicial review is limited to whether the authority has exceeded the legal limits of discretion or has exercised its discretion in a way that does not correspond to the purpose of the authorization (§ 114 sentence 1 VwGO). Abuse of discretion is found in particular where the authority’s discretionary decision is based on improper considerations or arbitrary aspects, relevant circumstances are not taken into account, or the decision is not given a comprehensible justification. The court does not substitute the administration’s discretion with its own, but reviews only for legal errors. If abuse of discretion is present, the court usually refers the matter back to the authority.
What role do objective and improper considerations play in the abuse of discretion?
Objective considerations are mandatory for the exercise of discretion and usually arise from the purpose of the law, the systematic position of the provision, and the obvious interests of the parties involved. Abuse of discretion, in particular, occurs where the authority’s decisions are based on improper motives, i.e., considerations outside the legal purpose. Such motives can include political preferences, personal antipathy toward those affected, or advantages for uninvolved third parties. Ultimately, it must remain comprehensible and transparent that the authority has relied exclusively on considerations that the law declares relevant or implicitly permits. A decision based on improper considerations is always unlawful.
Can administrative abuse of discretion be cured, or does it necessarily lead to the annulment of the administrative act?
A proven abuse of discretion generally renders an administrative act unlawful, but not necessarily invalid. In objection proceedings, the authority can correct its own error and replace the administrative act with a flawless decision (Section 45 VwVfG). During court proceedings, the authority can also supplement or correct its considerations as long as the legal protection interests of the affected party are not unreasonably compromised. However, the prerequisite is always that no new, previously unexamined facts are introduced, but only that the legal assessment and justification of the administrative action are clarified. Thus, a correction is possible unless the discretionary error is so severe that the entire further proceedings are based on a faulty premise.
How can the affected person substantiate and prove an abuse of discretion?
The burden of substantiating an abuse of discretion generally lies with the affected person, who must assert that the authority has exercised its discretion unlawfully. This requires presenting concrete indications, such as showing that the authority failed to include essential facts in its decision or did so inadequately, that the justification is illogical or contradictory, or that relevant factors were ignored. Evidence is often provided through the administrative file as well as any hearings or written statements by the authority. Because discretionary decisions are usually subject to the duty to provide reasons under Section 39 VwVfG, a violation of this duty can often be taken as an indication of abuse of discretion. The court then examines whether the alleged error actually exists and whether it was causal for the decision.
Which examples from case law illustrate abuse of discretion particularly vividly?
The relevant case law provides numerous examples of abuse of discretion. Common cases involve authorities using criteria not provided for by law—such as personal relationships or political considerations—when granting permits or licenses. The failure to consider significant interests of the affected parties, such as when denying a restaurant license without regarding essential economic concerns, is regularly cited by courts as abuse of discretion (e.g., Federal Administrative Court [BVerwG], judgment of July 9, 1987 – 3 C 1.85). Courts have also established that blanket or ‘schematic’ exercises of discretion—i.e., without considering the specifics of the individual case—constitute abuse of discretion (cf. also Higher Administrative Court Münster, judgment of January 20, 2010 – 6 A 1128/08). Such decisions are usually annulled and the authorities required to exercise discretion appropriately once more.
