Definition and Legal Classification of the Administrative Complaint
Die Administrative Complaint is a formal legal remedy anchored in administrative procedure law that allows administrative decisions to be reviewed by another—usually higher—administrative authority. It serves as a pre-judicial mechanism for the oversight and correction of administrative acts and is recognized in numerous European and international legal systems.
An administrative complaint is specifically regulated in the administrative procedural laws of Germany and Switzerland but has conceptual equivalents in other legal systems as well. It differs from judicial remedies in that it constitutes an internal administrative review process and aims to relieve administrative courts.
Legal Basis of the Administrative Complaint
Germany
General Administrative Law
Under German law, the administrative complaint is not a uniformly codified institution. The Administrative Procedures Act (VwVfG) does not provide an independent regulation for a “general complaint” against administrative acts. Instead, there are specific regulations, for example in social law (objection according to §§ 83 ff. SGG), civil service law (official supervision complaint), and building law (remedies against building regulatory measures).
Types of Complaints in Administrative Action
- Objection: The objection is the central internal administrative remedy against burdensome administrative acts (§§ 68 ff. VwGO), enabling an administrative review before resorting to administrative courts.
- Official Supervision Complaint: This is an informal complaint regarding the conduct of public officials, relating to their official performance or professional behavior.
- Technical Supervision Complaint: This is directed against actions taken in the context of fulfilling official duties and aims for a review by the superior or supervising authority.
Switzerland
Administrative Procedures Act (VwVG)
The Federal Act on Administrative Procedure (VwVG) specifically regulates the administrative complaint in Articles 44-71 VwVG. It constitutes the central internal administrative remedy against individual decisions and is a mandatory intermediate step before potentially proceeding to the Federal Administrative Court.
Procedure and Jurisdiction
Any person who is specifically affected by the contested decision and has a legitimate interest in its alteration or annulment is entitled to lodge a complaint. The time limit for filing a complaint is generally 30 days from the notification of the order.
Procedure for Administrative Complaint
Submission and Form
The administrative complaint must be submitted in writing—in some jurisdictions, also electronically. It must include the contested administrative act, the subject of the complaint, a substantiated reasoning, and the remedies sought.
Time Limit and Addressee
The deadline for filing is determined by the relevant legal provisions and typically ranges between one and three months. The addressee is always the next higher authority or the body designated as the complaint instance in the administrative procedure.
Scope of Review
The complaint authority examines the facts and legal situation comprehensively and is not bound by the appellant’s reasoning. It may make its own findings, allow new evidence, and independently review the original authority’s discretion.
Decision on the Administrative Complaint
Possible Decisions
The complaint authority may
- dismiss the complaint,
- grant the request in whole or in part (annulment or amendment of the administrative act),
- annul the administrative act and refer the matter back to the original authority for a new decision.
In certain legal systems, there is also an explicit obligation for the original authority to issue a specific decision.
Binding Effect and Further Appeal
A decision on an administrative complaint becomes effective upon delivery and is binding on the administration. Against the decision of the complaint authority, a judicial remedy (administrative action or administrative judicial complaint) is regularly available.
Distinction from Other Legal Remedies
Internal Administrative vs. Judicial Remedies
The administrative complaint must be differentiated from direct judicial legal remedies. It is an integral part of the principle of “legal protection against acts of public authority” and serves the self-monitoring of the administration.
Difference from the Objection
In Germany, the objection is a specifically regulated form of the administrative complaint, whereas the term “complaint” is generally broader and covers various legal and supervisory objections.
Function and Significance of the Administrative Complaint
Legal Protection and Relief for Administration
The administrative complaint ensures effective legal protection for those affected by providing a preliminary, cost-effective, and prompt review of administrative acts. At the same time, it filters out unfounded or unclear complaints, thus relieving the administrative courts.
Impact on Administrative Practice
The complaint procedure contributes to error prevention and quality assurance in administrative practice. It promotes transparency in administrative processes and strengthens confidence in the rule of law.
International Perspective
In many countries, the administrative complaint is an essential element of administrative procedural law. Access to an internal administrative review procedure corresponds to the internationally recognized requirement of effective legal protection (e.g., Art. 13 ECHR).
Criticism and Reform Discussions
Among legal professionals, there is discussion regarding the efficiency and necessity of internal administrative complaint procedures, particularly with respect to expediting proceedings. There are sometimes calls to consolidate or simplify the forms of internal administrative remedies in order to further strengthen clarity and legal certainty.
This article provides a comprehensive overview of the concept of the administrative complaint, its legal foundations, procedural flow, and legal policy significance in administrative law.
Frequently Asked Questions
Who is entitled to file an administrative complaint?
In principle, any natural or legal person who may have had their personal subjective rights violated by an administrative act or other official action is entitled to file an administrative complaint. The essential requirement is typically the existence of a personal, current, and direct impact. This may include the addressees of an administrative act as well as third parties who are directly or indirectly affected by the decision. In certain cases, associations, federations, or organizations may also have the right to file a complaint if they are entitled to claim action or complaint rights under special legal provisions (e.g., in environmental law). Persons who have no subjective rights and whose interests are merely factually affected, on the other hand, are not entitled to complain.
What deadlines must be observed when filing an administrative complaint?
Filing an administrative complaint is generally subject to deadlines. The relevant statutes and administrative regulations (for example, the administrative procedures law of the respective federal states or the federal government) specify the time limits within which a complaint must be submitted. In many cases, the statutory deadline is one month from notification or delivery of the administrative act or final decision. If the deadline is missed, the complaint is usually dismissed as inadmissible, unless a reinstatement to the former status is possible. Exceptions exist if there was no or incorrect information on legal remedies, in which case the deadline is regularly extended to one year (§ 58 VwGO).
In what form must an administrative complaint be submitted?
In most cases, the administrative complaint must be submitted in writing, and must therefore be filed in writing, sometimes also electronically (for example, via an online portal according to the E-Government Act), with the competent authority. The complaint must specify the exact designation of the contested administrative act or challenged measure, state the reasons, and indicate how a legal violation has occurred. For legal certainty, it is recommended to provide a detailed and substantiated justification and, if applicable, attach relevant evidence. Some procedural codes permit an informal complaint; in such cases, however, at least the identification of the complainant and the subject of the proceedings is essential.
What is the typical procedure in an administrative complaint?
The procedure begins with the timely submission of the complaint to the competent authority. This authority first examines admissibility, particularly with regard to compliance with deadlines, formal requirements, and standing to complain. Once admissibility is established, the complaint is reviewed on the merits. The authority generally initiates what is called the remedy procedure, in which it can remedy its own decision, i.e., fully or partially accede to the complainant’s request. If no remedy is provided, the complaint is often forwarded to a superior authority or a specialized complaint body. Finally, the complainant receives a written decision, usually a complaint notice. If the complaint is unsuccessful, further legal remedies are usually available, in particular the right to file a lawsuit with the administrative court.
What costs arise from an administrative complaint?
In administrative proceedings, especially in the preliminary procedure, there are typically no court costs in Germany because this procedure (unlike court proceedings) primarily serves internal control and error avoidance within the administration. However, for certain official actions, fees and expenses may be charged if provided for in the relevant fee schedules. If, for example, expenses arise for the authority due to file inspection or making copies, these can be passed on to the complainant. The involvement of a lawyer is generally permissible, but any legal fees must usually be borne by the complainant in administrative proceedings, unless a court proceeding subsequently occurs in which cost allocation is judicially determined.
What legal consequences does the filing of an administrative complaint have for the validity of an administrative act?
Filing an administrative complaint generally does not have suspensive effect, i.e., the contested administrative act remains enforceable and effective unless the law expressly provides for suspensive effect or the authority grants it in an individual case. In certain cases (for example, with burdensome measures, especially those with serious or irreversible consequences), it is possible to apply for suspension of enforcement. If suspensive effect is granted, implementation of the administrative act is suspended until a final decision is made. For objection proceedings under § 80 VwGO, suspensive effect is generally provided unless statutory exclusion exists or immediate enforcement has been ordered.
Can further legal remedies be sought against the decision on the administrative complaint?
Against the authority’s decision on the administrative complaint (the so-called complaint notice or objection notice), the complainant regularly has access to further administrative or judicial remedies. Under German law, this is often lodging a claim before the administrative court (§§ 42 ff. VwGO), with distinctions between annulment actions and actions for an order that must be observed. A prerequisite is the proper and timely filing of the complaint or objection as a necessary preliminary procedure (the so-called “mandatory preliminary procedure”). Only after its completion is a lawsuit admissible. In individual cases—for example, after all other remedies have been exhausted—a constitutional or specialized court complaint may be considered, provided fundamental rights violations are at issue.
