Definition and Legal Classification of Administrative Agreements
An administrative agreement is a special form of legally binding cooperation between different public administrative entities, usually between authorities of different public bodies. It serves to regulate joint administrative affairs and is of great practical importance in German administrative law. Administrative agreements are often concluded between the federal government and the states (Bund und Länder), between different states (inter-state administrative agreements), or between the federal government, states, and municipalities. In contrast to administrative contracts, which relate to the relationship between citizens and the administration, administrative agreements regulate exclusively the relationship between administrative bodies.
Legal Bases of Administrative Agreements
Statutory Foundations
Administrative agreements derive their legal basis primarily from Articles 83 to 85 and Articles 91a ff. of the Basic Law (Grundgesetz – GG), which address the execution of federal laws by the states and forms of administrative cooperation. Additionally, state law regulations and specific statutes are decisive when it comes to concluding administrative agreements at the state or municipal level.
Distinction from Other Legal Instruments
Administrative agreements must be distinguished from administrative acts, administrative regulations, and public law contracts:
- Administrative acts are unilateral sovereign measures towards external legal subjects (see § 35 VwVfG).
- Administrative regulations govern the internal relationship within an authority and bind instructions, but do not have any immediate external effect.
- Public law contracts shape the legal relationship between the administration and citizens or between public law corporations with external effect.
In contrast, the administrative agreement concerns the internal relationship between administrative units on a mutual basis and regulates cooperation and the implementation of joint tasks.
Types and Examples of Application
Differences by Participants
- Between federal government and states: Commonly seen, for example, in the implementation of funding programs, the organization of joint IT infrastructure, or in matters of disaster control.
- Between states: For instance, in cross-state infrastructure projects or in the area of environmental protection.
- Between states and municipalities: Often for joint task management or to regulate responsibilities.
- Within a state or between municipalities: In joint funding or administration of public services.
Examples
- Administrative agreements on cooperation within the framework of administrative assistance.
- Inter-state administrative agreements for organizing joint databases (e.g. police information systems).
- Administrative agreements on the establishment and operation of joint institutions such as special-purpose associations.
Form and Content
Formal Requirements
There is generally no statutory form prescribed for administrative agreements; however, they are usually set down in writing to ensure legal certainty for the authorities involved. In certain cases – for example, if an administrative agreement affects statutory law, reorganizes responsibilities, or deals with financing issues relevant to budget law – a parliamentary reservation or approval requirement may exist.
Typical Content
Administrative agreements typically regulate in particular:
- Organization and implementation of joint tasks
- Allocation of responsibilities and competencies
- Funding contributions and cost sharing
- Exchange of information and data protection
- Term and termination options
- Dispute resolution mechanisms
Legal Effect and Binding Character
Administrative agreements create obligations between the involved administrative units. They are generally not effective externally—i.e., toward citizens—but operate only internally. Compliance with administrative agreements can be monitored internally, for example by supervisory authorities. In the event of disputes, recourse to administrative courts is only available to a limited extent, since administrative agreements are mostly considered acts of internal public administration and do not fall under the Administrative Procedure Act (VwVfG) or the provisions regarding public law contracts (§§ 54 ff. VwVfG).
Distinction from Public Law Contract
Administrative agreements differ from public law contracts primarily in their target group and legal effect. While public law contracts regulate the relationship between an authority and a citizen or between specific administrative bodies with external legal effect, administrative agreements always constitute a regulation exclusively concerning the internal relationship between administrative entities. An administrative agreement does not produce any immediate external legal effect toward third parties.
Termination, Amendment, and Cancellation
The administrative agreement generally ends by
- achievement of its purpose,
- expiration of an agreed term,
- termination by one or more parties, if agreed, or
- mutual agreement to rescind.
The modalities for this are usually specified in the contract text. In addition, an administrative agreement may become ineffective by law or due to overriding legal provisions.
Significance and Practical Relevance
Administrative agreements are now indispensable in public administrative practice. They enable federalism-compliant, flexible, and efficient regulations of joint administrative tasks and help to adapt administrative procedures to the complexity and multi-layered nature of modern challenges. Especially for cross-state or nationwide tasks, where the fulfillment requires the involvement of several administrative entities, administrative agreements are a central instrument of cooperation.
Literature and Further Information
- Maurer, Hartmut: Allgemeines Verwaltungsrecht, 20th edition, 2020
- Detterbeck, Steffen: Allgemeines Verwaltungsrecht, 19th edition, 2023
- Battis, Klaus et al.: Grundgesetz Kommentar, 13th edition, 2024
- Sachs, Michael (ed.): Grundgesetz Kommentar, 10th edition, 2023
Note: This presentation is based on the legal situation under German administrative law and explains the concept of the administrative agreement exclusively in public law.
Frequently Asked Questions
How does the legal binding of the parties to an administrative agreement occur?
The legal binding of the parties to an administrative agreement is generally established by concluding a public law contract pursuant to §§ 54 ff. Administrative Procedure Act (VwVfG) and the corresponding state law provisions. The parties—usually local authorities or other public administration bodies—must comply with the statutory formal requirements, in particular the written form (§ 57 VwVfG) and any further specific statutory consent requirements (e.g. municipal approvals). The agreement generally enters into force upon signature by the contracting parties, unless a later date or additional conditions have been agreed. Outward legal effect arises only within the scope permitted by law for transfer or cooperation; any unlawful transfer of powers is not permitted and could result in the agreement being void (§ 59 para. 1 VwVfG).
What legal consequences arise from a breach of the administrative agreement?
In the event of a breach of an administrative agreement, the sanctions or, subsidiarily, the provisions of the Administrative Procedure Act and general principles of public contract law stipulated in the agreement itself apply. Frequently, administrative agreements include specific provisions on contractual penalties, rights of withdrawal or termination, and obligations to pay damages under public law. A key distinction from private contracts is that claims for performance or damages must generally be pursued through the administrative courts and cannot simply be enforced by private law means. There is also the option in individual cases to contest or declare nullity of the agreement under §§ 58, 59 VwVfG, for example if mandatory legal provisions or the public interest have been violated.
To what extent is the administrative agreement subject to control by supervisory authorities?
Administrative agreements are regularly subject to legal oversight by the competent supervisory authority, in particular regarding legality (the so-called legality review) and the safeguarding of overriding public interests. In municipal law, for example, many agreements require approval by the municipal supervisory authority (§ 58 para. 2 GO NW, § 72 para. 2 BbgKVerf, etc.). The review generally includes the question of whether the agreed cooperation or exercise of functions is within the statutory framework, whether powers have been properly delegated, and whether there has been any unlawful influence or shift of responsibilities. If the supervisory authority identifies any violations, it may object to or prohibit the agreement’s effectiveness.
What is the significance of distinguishing administrative agreements from delegated authority and public law contracts?
The precise distinction between administrative agreements and other forms of cooperation is of considerable legal relevance. Administrative agreements are characterized by equal cooperation between two or more administrative entities, whereas in the case of delegated authority (Beleihung), a legal entity is conferred sovereign powers for autonomous exercise (§ 9 VwVfG). A public law contract in the narrower sense (§ 54 VwVfG) may also establish a subordination relationship (e.g. comparison), while the administrative agreement is aimed at coordination and cooperation. Incorrect classification can lead to validity problems, particularly nullity for exceeding competencies. The distinction is also relevant for determining the proper legal process (administrative or regular court) and questions of approval requirements.
Are third parties bound by administrative agreements or can they derive claims from them?
As a rule, administrative agreements, like other public law contracts, are binding only between the participating administrative bodies. Third parties generally have no direct claims or rights from them unless this is expressly agreed or provided for by law. However, indirect legal effects may arise, for example, if administrative acts based on the agreement are issued to citizens. Here, the principles of administrative law, in particular the principle of legality and the protection of legitimate expectations, must be observed. In rare exceptional cases, a clause benefitting third parties can grant a claim to third parties, but this requires clear regulation and is only legally permissible within the given competence framework.
What formal requirements apply to administrative agreements?
For administrative agreements, the written form generally applies (§ 57 VwVfG), unless stricter provisions—such as public certification or notarization—are required by special laws. In addition, the internal law of an administrative body (e.g. main statutes of a municipality) may set further requirements, such as approval by certain committees or supervisory bodies. Failure to comply with such formal requirements can render the agreement void (§ 59 VwVfG) if the formal requirement is for the protection of public interests or the contracting parties. An electronic form is sufficient only if this is expressly provided for.
What special features apply to the termination of administrative agreements?
The termination of administrative agreements is primarily governed by the provisions agreed between the parties; typically, regular or extraordinary termination options are provided for. Termination may also occur by expiration of time or by a rescinding agreement. For cause, extraordinary termination is possible at any time, for example if further implementation would result in violation of legal obligations (§ 60 VwVfG by analogy). Special features often apply regarding the reversal of services already performed and the safeguarding of the legitimate expectations of involved third parties. Finally, it should be noted that the termination of an administrative agreement does not necessarily invalidate previous administrative acts or other legal consequences; this must be assessed in each individual case.
