Definition and Basics of the Performance Action
Die Performance Action (also referred to as an action for performance or mandatory action in administrative procedural law) is a legal remedy before the court aiming to obligate an authority or another public law entity to perform a specific act. The performance action is particularly significant in administrative law and must be distinguished from the action for annulment and the declaratory action.
Legal Basis of the Performance Action
The legal basis for the performance action is primarily regulated in German administrative procedural law, especially in the Administrative Court Procedure Act (VwGO). The key provisions are §§ 42 para. 1, 113 para. 5 VwGO. The VwGO distinguishes between the action for annulment, the performance action (“action for obligation”), and the declaratory action. The performance action is applied when an administrative act is sought but has not yet been issued by the authority (so-called inaction or rejection).
Mandatory Action according to § 42 para. 1 VwGO
- Regulation: § 42 para. 1 VwGO allows for judicial review of a public authority’s refusal or omission to issue an applied-for administrative act.
- Objective: The plaintiff’s objective is either the issuance of a denied administrative act (“action against refusal”) or the issuance of an originally requested administrative act that the authority has not yet dealt with (“inaction action”).
Types of Performance Action
A distinction is made between two types of performance action:
- Action against Refusal: The action by which a denied administrative act is demanded.
- Inaction Action: The action by which an applied-for but not yet decided administrative act is demanded.
These two forms are collectively referred to as the mandatory action, in which the plaintiff claims that the authority should have issued a specific administrative act.
Difference from the Action for Annulment and Declaratory Action
- Action for Annulment: Is directed against an onerous administrative act, with the aim of revoking it.
- Declaratory Action: Serves to determine the existence or non-existence of a legal relationship.
The performance action, in contrast, seeks to positively oblige the authority to act.
Structure and Requirements of the Performance Action
Admissibility
The following requirements for admissibility apply to the performance action:
1. Proper Type of Action
The action is admissible when an administrative act is sought, i.e., typically when a legally regulated administrative measure is desired.
2. Right to Bring an Action (§ 42 para. 2 VwGO)
The plaintiff must be able to claim that he or she is injured in his or her own rights by the refusal.
3. Preliminary Proceedings (§ 68 ff. VwGO)
- Objection Proceedings: In most cases, the claimant must conduct objection proceedings before filing a lawsuit.
- Dispensability: In certain cases, such as where the authority has been inactive for a reasonable period, the preliminary proceedings can be omitted.
4. Deadline for Filing the Lawsuit (§ 74 VwGO)
The action must be filed within one month after delivery of the objection decision.
5. General Prerequisites for a Decision on the Merits
These include, in particular, the proper filing of the action, legal capacity and capacity to be a party of the participants, as well as the existence of a general need for legal protection.
Merits
The performance action is justified if the plaintiff has a right to the requested administrative action (administrative act) and all further substantive conditions for issuance are met. The court examines the legal situation independently and comprehensively.
Content and Effect of the Judgment in the Performance Action
Obligation Judgment (§ 113 para. 5 sentence 1 VwGO)
If the performance action is successful, the administrative court obliges the authority to issue or abstain from the requested administrative act. There are two basic types of obligation judgments:
1. Granting Judgment
- Obligation to Implement: The authority is obliged to comply with the judgment and grant the plaintiff the requested administrative act.
- No Automatic Grant: The judgment does not replace the administrative act itself but compels the authority to issue it.
2. Obligation to Re-Decide
If there is discretion or margin of assessment, the court may oblige the authority to make a new decision taking into account the court’s legal opinion (“re-decision judgment”).
Enforcement and Execution
The enforcement of judicial obligation judgments is governed by § 167 VwGO in conjunction with the general principles of compulsory execution. If the authority refuses to implement the judgment, the applicant may apply for enforcement measures, in particular penalty payments.
Examples and Application Cases of the Performance Action
Classic Areas of Application
- Building Permits: An application for approval of a building project was rejected or not decided.
- Granting of Licenses or Concessions: For example, applying for a restaurant license or driving license.
Distinction from Other Types of Actions
- If there is an obligation to tolerate or refrain from an act, the performance action does not apply; rather, an action for injunction or toleration applies.
Legal Particularities
Binding Effect of the Judgment
The granting judgment only has binding effect between the parties involved in the process.
Interim Legal Protection
In addition to the performance action, interim legal protection can be applied for in urgent cases in the form of a preliminary injunction (§ 123 VwGO).
Relationship to Other Legal Bases for Claims
The mandatory action generally refers to individual administrative acts; broader obligations (factual acts, other performances) are asserted through the general action for performance.
Summary
The performance action is a central instrument of legal protection in administrative proceedings, enabling those seeking legal redress to enforce the performance of administrative acts by authorities. Above all, it serves the effective enforcement of claims to official administrative action. The differentiated approach within the administrative jurisdiction enables citizens to effectively and judicially realize their own rights, provided statutory requirements are met. Thus, the performance action is an important legal institution in German administrative procedural law.
Frequently Asked Questions
When is the performance action admissible?
The performance action is always admissible when a plaintiff seeks to compel an authority to perform a specific, rejected, or omitted official act. This derives in particular from § 42 para. 1 alt. 2 of the Administrative Court Procedure Act (VwGO) for administrative law. The prerequisite is always that it concerns an administrative act that specifically targets the performance of a sovereign measure against the plaintiff. The performance action is the appropriate remedy especially when a citizen’s application for the issuance of an administrative act has been rejected (action against refusal) or the desired decision of the authority is absent despite the application (inaction action). However, the plaintiff must generally have filed an application with the authority before bringing the performance action, as a legitimate interest in legal protection arises only through refusal or omission.
What special admissibility requirements apply to the performance action?
The special admissibility requirements for the performance action include, first of all, the existence of an application by the plaintiff to the authority. In addition, there is the right to bring an action according to § 42 para. 2 VwGO: the plaintiff must be able to claim that he or she is injured in his or her own rights by the refusal or omission of an administrative act. Furthermore, it should be noted that the preliminary proceedings under §§ 68 ff. VwGO are mandatory, unless exceptions exist for specific administrative areas or the action for annulment is directed against onerous administrative acts. In the context of the performance action, it is important to check whether the requested official act falls within the scope that can be enforced by the administrative court or whether the authority retains discretion.
What effect does a legally binding judgment in a performance action have?
The judgment in a performance action may have different legal effects depending on the nature of the authority’s duty to make a decision. If the authority is obliged to perform a non-discretionary administrative act, the judgment replaces the original administrative decision (so-called obligation judgment with creative effect). In cases of discretionary decisions, the authority is obliged to make a new decision taking into account the court’s legal opinion (re-decision judgment). In such cases, the authority is not obliged to a specific decision, but must properly exercise its discretion as established by the court. The judgment is regularly binding on the authority, but has no direct legal effects on third parties who were not involved in the proceedings.
In which cases is a performance action inadmissible?
The performance action is inadmissible if the plaintiff does not have a legitimate interest in the requested official act, in particular if he lacks a subjective public right to the claim. The performance action is also inadmissible if the authority is not supposed to issue an administrative act, but rather to perform simple administrative action or factual acts, as these cannot be compelled by the performance action. Admissibility also fails if the request is legally or factually impossible, for example, if the authority is precluded from providing the requested service, a ministerial directive is missing, or the action is brought against an authority lacking jurisdiction.
What role does administrative discretion play in the performance action?
Administrative discretion is of central importance in the performance action. If discretion applies to the requested decision, the court can generally not compel the authority to issue a specific administrative act. Rather, judicial review is limited to whether discretion was exercised at all and whether the authority observed the statutory limits of its discretion (“failure to exercise discretion,” “misuse of discretion,” or “exceeding discretion”). In these cases, the court will order the authority to make a new decision “in accordance with the legal opinion of the court” without specifying the exact decision to be made (re-decision judgment).
How does the performance action relate to the inaction action?
The inaction action is a particular form of the performance action and serves to ensure legal protection in cases where the authority has not decided on the plaintiff’s application within a reasonable period (§ 75 VwGO). The prerequisite is that either no decision has been made within a reasonable time or the conduct of a preliminary proceeding is unreasonably delayed. The substance of the request remains unchanged: the obligation of the authority to perform a requested administrative act. The inaction action thus constitutes a special tool within the performance action for ensuring effective legal protection against delays in official decisions.
Are there any particular features in the process for the performance action?
In the performance action proceedings, the administrative court first examines the admissibility of the action, in particular the presence of an application and the conduct of preliminary proceedings. Thereafter, the merits of the action are reviewed, with the court in particular assessing the basis of the claim and the existence of a subjective right of the plaintiff. In cases of administrative discretion, the court reviews only for errors in discretion, whereas in binding decisions, a direct order may be made. If an obligation judgment is entered, the authority can be required to undertake the requested official act, if necessary also subject to special court requirements. In the event of non-compliance, it is possible to enforce the judgment through administrative enforcement.
