Definition and Concept of Administrative Agreement
Ein Administrative Agreement is an agreement between two or more administrative authorities that serves to regulate specific administrative law matters. In Germany, administrative agreements are especially important in the context of cooperation between the federal government, states, and municipalities. They allow flexible and practical coordination of governmental tasks, which are not carried out through formal legislative acts, but rather through consensual arrangements made by the authorities involved. Administrative agreements are considered auxiliary law within the organization of the state and exist alongside laws, ordinances, and statutes as a special form of sovereign cooperation.
Legal Nature and Classification
Characteristics and Distinction
Administrative agreements are legally classified as reciprocal agreements between sovereign entities. They possess a contractual character and are to be treated as so-called “public contracts” (as opposed to civil law contracts) under German administrative procedural law. Administrative agreements differ from statutory law and administrative acts in that they do not directly create rights and obligations for citizens, but primarily regulate internal relations and cooperation between the administrative authorities involved.
An important distinction is to be made with state treaties: While the latter concern sovereign agreements between states or federal states based on Articles 52 or 32 of the Basic Law (Grundgesetz) and generally require the approval of the relevant parliaments, administrative agreements are purely internal administrative understandings without any external effect on third parties.
Legal Basis
There are no explicit constitutional or statutory requirements for concluding administrative agreements; rather, their permissibility is generally recognized as long as they do not violate higher-ranking law or encroach upon parliamentary prerogatives. The starting point is the principle of autonomy and independent authority of administrative bodies within the scope of their statutory duties, in particular Articles 30 and 83 et seq. of the Basic Law for the distribution of administrative competence within the federal system.
Forms and Manifestations
Substantive Distinctions
Administrative agreements can cover a wide range of regulatory matters. Typical areas of application include:
- Joint execution of specific administrative tasks by several states (e.g. examination offices, cooperation between authorities)
- Regulations on the joint use of facilities or services
- Harmonization of administrative practice and procedures in inter-state matters
Form and Procedure of Conclusion
Administrative agreements do not require any particular form; they can be concluded in writing or orally, explicitly or implicitly. However, for reasons of legal certainty and verifiability, they are usually recorded in writing. The competence to conclude them lies with the internally responsible office of the administrative authority. Since administrative agreements do not have general legal effect, they are not subject to special publication requirements.
Legal Effects and Binding Nature
Binding Effect for the Administrative Authorities
Administrative agreements are generally only binding upon the participating administrative authorities and do not have direct external effects on third parties, in particular not on citizens. Nevertheless, they can have practical effects on the rights or obligations of third parties, for instance through uniform administrative practice in certain matters.
An administrative agreement serves as self-commitment of the participating authorities within the scope of fulfilling their organizational tasks. Breach of such agreements may have legal consequences internally, possibly including liability for damages between the administrative authorities, provided a corresponding provision has been made. However, public interests or mandatory law may preclude strict binding force (e.g. in the case of subsequent legislation).
Relationship to Parliamentary Laws and Legal Ordinances
Administrative agreements may only stipulate regulations that fall within the statutory competence of the administrative bodies. They may not amend or override legal requirements. In the hierarchy of norms, the administrative agreement ranks below statutes, ordinances, and statutes. In case of conflict, the higher-ranking law always takes precedence. The binding effect ceases to apply when legislative changes occur to which the administrative agreement is not adapted.
External Effects and Legal Protection
Since administrative agreements themselves do not have external effect, they are generally not subject to judicial review by administrative courts. Only when administrative acts are issued on their basis can it be reviewed whether these are in accordance with the underlying agreement as well as higher-ranking law. Therefore, directly affected third parties generally do not have standing to bring a legal action.
Examples of Application
Joint State Institutions
Administrative agreements are typical for the joint operation of state authorities, for example, inter-state examination offices for certain auditors or the centrally organized office for cross-border waste management.
Federal-State Cooperation
In the field of federal cooperation, the federal government and the states may, for example, agree on administrative arrangements for coordination in disaster control, major events or IT cooperation. Such arrangements aim at the efficient fulfillment of joint administrative tasks.
Municipal Cooperation
At the municipal level as well, administrative agreements serve cooperation, for example in performing tasks related to public services, waste management, or the joint use of specialized equipment.
Distinction from Other Legal Instruments
State Treaties
State treaties (between the federal government and states, between states, or between countries) require ratification by the parliaments and are put into force by law, whereas administrative agreements are purely administrative understandings and do not require political approval.
Administrative Arrangements
Administrative agreements are often used synonymously with the term administrative arrangement. Sometimes, however, a distinction is made: administrative arrangements may also refer to internal provisions within a single authority, while administrative agreements always refer to coordination between different independent administrative bodies.
Administrative Acts
Administrative acts are sovereign individual measures with direct external effect on third parties. Administrative agreements, on the other hand, are directed exclusively at the authorities involved.
Termination, Cancellation, and Adjustment
Administrative agreements can be concluded for a fixed or indefinite period. Primarily, their termination is governed by the individual provisions of the agreement itself. In the absence of legal requirements, modalities for termination or adjustment must generally be expressly regulated. Otherwise, overriding public interests or changes in the legal framework may require adjustment or repeal.
Literature and Further Information
- Maurer, Hartmut: Allgemeines Verwaltungsrecht, chapter on forms and instruments of internal administrative cooperation
- Peine, Hans-Jürgen: Das Abkommen im öffentlichen Recht, in: Jura 1987, pp. 97-109
- Wahl, Rüdiger: Verwaltungsrecht, 10th edition, section on administrative agreement
Summary: Administrative agreements are significant instruments for internal administrative cooperation between the federal government, the states, and municipalities. As contractual understandings, they govern cooperation among themselves without directly creating legally binding effects on third parties. Their legal importance lies in fostering an efficient and flexible administrative practice within the scope of constitutional and legislative competencies.
Frequently Asked Questions
What legal requirements must be met for the conclusion of an administrative agreement?
Various legal requirements must be met to conclude an administrative agreement, which may vary depending on the type of agreement and the levels involved (e.g. federal government, states, municipalities, or with foreign administrative bodies). Generally, it is required that the participating authorities are legally authorized to enter into such an agreement, which usually derives from their respective allocation of responsibilities and competences. Furthermore, the administrative agreement may not circumvent or amend statutory requirements; it must comply with the applicable legal order. Budget law often requires prior approval from the competent supervisory authority, particularly if financial obligations are undertaken. In addition, internal administrative regulations may stipulate certain procedures and participation of committees, for example, approval by the state parliament or the responsible ministry for larger agreements. For international administrative agreements, the Bundestag’s consent according to Art. 59 (2) Basic Law must be observed if the rights and obligations of the federation are affected. Finally, the form of an administrative agreement may vary: it is usually recorded in writing, but basically, unless special rules apply, there is no mandatory requirement as to form.
What legal effects does an administrative agreement have on third parties?
An administrative agreement is generally only binding on the participating administrative authorities and does not have a direct external effect on third parties, in particular private individuals. It has the character of a purely internal administrative act, so that in principle no subjective rights or obligations arise for outside parties. Third parties may not derive claims against the administration or the other administrative body from an administrative agreement. Nor can existing third-party rights or obligations be changed by an administrative agreement; this remains the prerogative of the formal legislator. The binding effect exists solely ‘inter partes’, i.e. in the internal relationship between the contracting parties of the administrative agreement. However, if an administrative agreement forms the basis for administrative acts issued with respect to third parties, this can have indirect effects; in such cases, each administrative act remains independently subject to legal review.
Can statutory law be modified by an administrative agreement?
An administrative agreement is subordinate to statutory law both formally and substantively, and therefore cannot repeal, amend, or expand the provisions of statutory law. Violations of mandatory law result in partial nullity or may render the administrative agreement entirely invalid. Where laws or ordinances establish existing regulations, the parties to an administrative agreement must abide by them; the agreement may only provide for the execution, handling, or coordination of statutory requirements among the involved authorities. Exceptions exist only where the law expressly permits divergent administrative agreements or grants the administrative authorities corresponding latitude for arrangements. In case of conflict with superior law, the law must always be observed.
Is the conclusion of an administrative agreement subject to special controls?
Yes, the conclusion of an administrative agreement may be subject to various legal and internal administrative control mechanisms. First, the competence of the concluding authorities must be unequivocal, which is often ensured through internal reviews. In certain cases, approval from superior or supervisory authorities must be obtained, particularly when matters of considerable legal, financial, or political significance are involved. In cross-border or international administrative agreements, there are often reporting or notification requirements to the Foreign Office or parliamentary rights of oversight. Even after conclusion, an administrative agreement may be subject to judicial review, for example in the context of municipal oversight objections or in the event of legal disputes arising from its implementation. In this regard, compliance with the legal framework and the prohibition of arbitrariness are paramount.
How can an administrative agreement be terminated or amended?
The termination or amendment of an administrative agreement is primarily governed by its contractual provisions. In practice, administrative agreements generally contain rules regarding term, right of termination, amendments, and procedures for resolving disagreements. If no agreement is made, the general principles of contract law and public law apply, such as the right to consensual rescission or termination for good cause. Major changes in the situation or legal framework may justify a right to adjust or terminate, especially if the agreement becomes pointless or even unlawful due to subsequently occurring circumstances. If third-party legal positions are affected by the administrative agreement, their legal interests must continue to be observed after amendment or termination. For international administrative agreements, supplementary principles of international law apply, in particular pacta sunt servanda and specific termination rules.
What differences exist between an administrative agreement and a public-law contract?
Administrative agreements are instruments of internal administrative arrangements, concluded exclusively between administrative authorities and having no direct legal effect on third parties. They are therefore to be distinguished from public-law contracts, which are concluded between an administrative authority and a private party using the instruments of the Administrative Procedure Act (§§ 54 et seq. VwVfG) and can have direct legal effects on third parties. While public-law contracts are subject to specialized regulation and judicial control by law, administrative agreements remain within the sphere of the participants and are generally not suitable as legal basis for burdensome measures affecting third parties. The competence to regulate is thus, in the case of administrative agreements, restricted to the internal relationship between administrative authorities.
