Definition and Nature of Administrative Acts Requiring Participation
Ein administrative act requiring participation is an administrative act whose issuance or effectiveness, in addition to the involvement of the responsible administrative authority, requires the participation of another legally designated body, committee, or authority. This participation may take the form of consent, hearing, or even agreement. In German administrative law scholarship and practice, administrative acts requiring participation are a significant tool for the rule-of-law oversight and the separation of powers, as the involvement of additional bodies serves to review and safeguard administrative actions, particularly in especially significant or sensitive areas.
Legal Foundations
Administrative acts requiring participation are based in particular on the Administrative Procedure Act (VwVfG) and in special statutory provisions. The central provision in the VwVfG is § 13 VwVfG, which governs the general participation of other authorities. Additionally, numerous specialized laws, such as the Building Code (BauGB), the Immission Control Act (BImSchG), and civil service law, contain specific provisions regarding the necessity of involving other bodies in the decision-making process and the issuance of administrative acts.
Forms of Participation
Administrative acts requiring participation differ according to the type and scope of the legally prescribed participation:
Consent
Consent refers to legally binding approval by another authority or committee. The administrative act may only be issued or becomes effective once the consenting authority has granted its approval. Consent may be required as a prerequisite for issuance or for the effectiveness of an administrative act.
Agreement
Agreement represents a particularly close form of participation. A consensual decision means that the involved bodies or authorities must reach a unanimous decision. Refusal by a participating authority to give agreement results in the administrative act not being permitted to be issued.
Hearing
In contrast, a hearing constitutes a less intensive form of participation. Here, the affected or involved authority must be heard regarding a planned measure, but it cannot prevent the administrative act from being issued.
Significance and Examples of Application
Administrative acts requiring participation are typically prescribed in areas where particular safeguards for lawful administrative action are deemed necessary, or where a balancing of different legal interests is required.
Examples from Practice
- Urban Planning Law: When granting a building permit within the area covered by a development plan, the consent of the municipality is often required (§ 36 BauGB).
- Civil Service Law: The transfer of a civil servant into retirement may, in some cases, require agreement with the staff council.
- Immission Control Law: The issuance of certain permits under the Federal Immission Control Act requires the involvement of neighboring authorities or expert committees.
Legal Consequences of Missing Participation
A key feature of administrative acts requiring participation is that, without the legally prescribed participation, the measure is unlawful and, as a rule, does not attain validity. In such cases, the administrative act may be annulled by an administrative court.
Curing Procedural Errors
The Administrative Procedure Act allows for the curing of certain procedural deficiencies under § 45 VwVfG. Under certain conditions, missed participation may be subsequently completed, thus restoring the legal validity of the administrative act retroactively. However, this does not apply in all cases and depends on the respective statutory provisions.
Distinction from Other Administrative Acts
Administrative acts requiring participation are to be distinguished from simple (non-participation-requiring) administrative acts, where the decision rests solely with one authority. Furthermore, administrative acts requiring participation differ from multi-stage administrative procedures, in which several authorities act in succession, but whose actions do not necessarily constitute participation in the sense of formal consent or agreement.
Significance for Administrative Procedure and Legal Protection
The rules on participation requirements have a significant impact on the conduct of administrative procedures. They multiply control mechanisms and increase legal certainty for citizens and companies. At the same time, legal protection is strengthened, since the absence or incorrect participation opens up the possibility of challenging the administrative act.
Summary
The administrative act requiring participation is a central institution of administrative law. Its main aim is to ensure rule-of-law control and the protection of public and private interests by involving additional oversight and decision-making bodies. The legal requirements regarding form, procedure, and effectiveness of such acts are governed by general and special laws and are a key contribution to lawful administrative activity.
Frequently Asked Questions
What formal requirements exist for administrative acts requiring participation?
The formal requirements for administrative acts requiring participation are governed by the statutory provisions of the respective administrative procedure and are intended to ensure a legally sound and transparent decision-making outcome. As a general rule, administrative acts requiring participation not only require the decision of the responsible main administrative authority, but also additional official participation—usually the consent or agreement of another authority. Consent generally does not require a specific form; it may also be given informally, for example orally or through implicit conduct, unless the law prescribes a specific form. An exception applies if the administrative act itself requires written or electronic form; then consent must also be documented accordingly. In many special statutory provisions—such as in building law or immission control law—it is explicitly stipulated that agreement or consent must be declared in writing or electronically in order to resolve questions of evidence clearly. If the participating authority does not fulfill its duty at all or does so incorrectly, this may result in the illegality of the entire administrative act. In practice, participation should regularly be obtained before issuing the administrative act, and the granting of participation should be documented in the administrative file in order to ensure traceability and legal certainty.
Who is responsible for obtaining the required participation?
The main responsibility for the timely and proper obtaining of the required participation generally lies with the issuing administrative authority that intends to issue the administrative act requiring participation. Within the framework of the official duty of investigation (§ 24 VwVfG), this authority is required to undertake all necessary steps for issuance on its own initiative. This explicitly includes activating the participating authority or authorities as soon as legal participation—such as consent, agreement, or countersignature—is required. Should the principal authority fail to fulfill this duty by issuing the administrative act without the required participation, the act is generally unlawful and is usually subject to appeal. However, if the lack of participation is due to refusal or delay by the consenting authority, the consequences depend on the purpose of the participation and any statutory fictions (e.g., deemed approval after deadline). In individual cases, the main administrative authority may be entitled to set deadlines and, after fruitless expiration, to substitute action if necessary.
What are the legal consequences of omitted or faulty participation?
Omitted or faulty participation in the context of an administrative act requiring participation usually renders the resulting administrative act unlawful. However, unlawfulness does not necessarily mean nullity (§ 44 VwVfG), but rather that the act is revocable or appealable. Nullity only occurs in cases of particularly serious and obvious violations, such as when an indispensable participation (e.g., mandatory approval) is completely missing. In many cases, a participation deficit can be remedied, for example by subsequent approval or consent pursuant to § 45 paragraph 1 no. 3 VwVfG, unless “final” or “serious” legal consequences have already occurred. The precise classification depends on the type and purpose of the participation, the protective aim of the norm, the existence of cure possibilities, and any applicable deadlines, which may also be regulated by special statutes in individual cases.
Can administrative acts requiring participation be cured retrospectively?
Yes, a subsequent cure for administrative acts requiring participation is generally possible if the relevant requirements are met. With regard to § 45 VwVfG, the subsequent obtaining of consent, agreement, or participation of another authority is permitted up to the conclusion of the objection procedure (or corresponding legal protection phase). The subsequent participation generally eliminates the unlawfulness up to that point, provided that participation did not have to be present at the time of issuance of the administrative act (so-called “constitutive participation”). If, however, the participation is fundamentally a requirement for validity by function and legislative intent, the error can usually no longer be retroactively remedied. In any case, deadlines must be observed and the party concerned must not be disproportionately disadvantaged by the subsequent participation.
How do agreement and consent differ legally as forms of participation?
Agreement and consent are two different forms of participation that fulfill different legal functions. Consent is a unilateral declaration of intent by the participating authority, through which it expressly agrees to the issuance of the administrative act. Without this consent, the administrative act is usually invalid. Agreement, however, is a bilateral coordination process, during which both authorities, i.e., the issuing and participating authority, must reach an understanding on the content of the decision. Mere consent is not sufficient; active consensus must be reached. The refusal of agreement by the participating authority generally prevents the issuance of the administrative act. In many cases, there is an obligation to provide reasons for refusing agreement. Individual specialized statutes may also contain provisions stipulating in which cases agreement can be substituted by substitute performance or a fictional approval may apply.
What are typical application cases for administrative acts requiring participation?
Administrative acts requiring participation are found in numerous areas of public administrative law. Classic examples are federal construction in outlying areas under § 36 BauGB, where the agreement of the municipality is required for a building permit; this likewise applies to certain decisions under the Immission Control Act (BImSchG), to water law permits, or personnel decisions in civil service law, such as transfers or secondments, where participation committees such as the staff council must be involved. It is also typical for cases in which the approval of higher authorities is required, such as in the area of municipal supervision (§§ 115 ff. GO NRW) or for the conclusion of public law contracts, provided that specific participation is stipulated. Social law and foreigners law also know numerous situations in which participation or agreement of other authorities is required for certain actions. This variety shows that the instrument of administrative acts requiring participation is important wherever interests of different authorities or public institutions need to be coordinated.
To what extent are participation rights subject to judicial review?
Participation rights are fully subject to judicial review, covering both the effectiveness and the proper formation of participation. This typically takes place within the framework of an action to compel or appeal before the administrative court. Courts are authorized and required to verify whether the legally prescribed forms of participation have been properly fulfilled, whether deadlines and formal requirements have been observed, and whether the participating authority has properly exercised its discretion, where applicable. Judicial review becomes particularly relevant in cases where participation (e.g., the municipality’s agreement in building permit proceedings) has been refused arbitrarily or for improper reasons; in such cases, there is a legally enforceable entitlement to proper execution of participation. Judicial review significantly contributes to legal certainty in administrative procedures.
