Definition and Legal Classification of the Administrative Assistant
The Term Administrative Assistant refers in German administrative law to a natural or legal person who acts under instruction and on behalf of an administrative authority, whereby they merely assist in the actual execution of sovereign measures without their own decision-making authority. According to Section 58 of the Administrative Procedure Act (VwVfG), administrative assistants are not considered administrative authorities but rather auxiliary persons of the actual authority. They differ from agents or delegated persons, who may be vested with independent powers to perform sovereign tasks.
Distinction from Related Terms
Administrative Assistants vs. Delegated Persons
Administrative assistants perform exclusively supporting, primarily factual actions under the instruction of the administrative authority. They do not make their own administrative decisions and do not issue administrative acts. In contrast, delegated persons possess their own sovereign powers and can, to a limited extent, issue administrative acts independently.
Administrative Assistants vs. Administrative Body
Administrative assistants are not part of the authority and do not perform tasks that are legally attributable to an authority. Organs of the administration act directly for the administration, whereas administrative assistants function as auxiliary persons.
Legal Basis for the Use of Administrative Assistants
General Statutory Foundations
The work of administrative assistants is governed by the Administrative Procedure Act (VwVfG), particularly in Section 58 VwVfG. Many subject-specific laws also contain special provisions that explicitly allow or further outline the use of auxiliary persons, for example in threat prevention, police law, or in the field of enforcement.
Section 58 VwVfG – Auxiliary Persons of the Authority
According to Section 58 (1) VwVfG, an authority may use auxiliary persons to conduct investigations or preparatory measures, provided there are no conflicting legal regulations. The activities of administrative assistants must be conducted under the instruction and responsibility of the authority.
Special Regulations
- Police Law: The police law of the federal states includes extensive powers allowing official or enforcement assistance by third parties.
- Enforcement Law: Administrative enforcement law contains specific provisions regarding the use of administrative assistants in the course of sovereign enforcement measures.
- Threat Prevention: In situations of significant danger, administrative authorities are permitted to use direct assistance provided by third parties.
Status and Legal Position of the Administrative Assistant
Not a Sovereign Authority
Administrative assistants do not exercise their own sovereign power. Their activities are attributed to the sphere of responsibility of the authority, and they have no legislative, decision-making, or discretionary powers. Being bound by instructions is a defining characteristic of the administrative assistant’s role.
Binding by Instructions
The administrative authority bears responsibility for the activities of its administrative assistants. These individuals are always bound to the instructions of the authority and act without their own discretion.
Examples of Administrative Assistants
Administrative assistants are frequently used in the context
- of towing operations conducted by private companies on the instructions of the police,
- technical or infrastructural support during searches,
- medical assessments performed by public health officers on behalf of an authority,
- monitoring activities such as measuring operations in road traffic by technical organizations.
Liability and Responsibility
Responsibility for Actions of the Administrative Assistant
Because administrative assistants act under the instructions and within the responsibility of the authority, their actions are attributed to the authority and, consequently, as a matter of public law, to the state. In the event of damage, the corporation that commissioned the administrative assistant is generally liable (§ 839 BGB, Art. 34 GG).
Personal Liability
Personal liability of an administrative assistant may arise if they act independently or with gross negligence outside the instructions of the authority. In such cases, personal attribution of their actions occurs, which may also have criminal consequences.
Administrative Assistants in Special Areas
Police Administrative Assistant
In police law, using administrative assistants, for example to block streets by private companies, is common practice. The tasks are always limited to actual measures without their own decision-making authority.
Administrative Assistants in the Environmental and Technical Sector
Technical inspection associations or experts can act as administrative assistants, for example in environmental inspections or the calibration of equipment within official procedures. However, the final sovereign decision always rests with the authority.
Legal Protection and Control Options
Legal protection against measures carried out by administrative assistants on behalf of the authority is always directed against the relevant authority, in accordance with the Administrative Court Procedure Act (VwGO), not against the administrative assistant themselves. In legal terms, these measures are considered official acts of the authority. Administrative assistants are not a party to the proceedings.
Summary
Der Administrative Assistant constitutes a key figure in German administrative law and enables the administration to draw upon knowledgeable or factually necessary support from third parties when needed, without delegating sovereign decisions. The clear distinction from delegated persons, the obligation to follow instructions, and the transfer of responsibility to the authority are defining features of this legal institution. Through administrative assistants, the functionality of the administration is maintained even in complex or technically specialized areas, without transferring sovereign decision-making authority to outsiders.
Frequently Asked Questions
Are administrative assistants civil servants or public sector employees?
Legally, administrative assistants are neither classified as civil servants nor as employees in the public service. They assume supportive functions for administrative authorities but do not have sovereign decision-making powers or their own administrative will. Their work is typically subject to instructions and limited to certain auxiliary functions. From a legal perspective, administrative assistants are not granted civil servant status or the associated rights and obligations—such as the prohibition on striking or special duties of care on the part of the employer. Nor do they receive employment contracts with the usual rights and obligations of a collectively bargained employee. Instead, administrative assistants act on the basis of specific statutory authorities and instructions, without establishing a service relationship in the traditional sense.
What legal requirements must be met for the use of administrative assistants?
The use of administrative assistants always requires an adequate statutory foundation. They may only act if the relevant sectoral law—often special laws such as police or regulatory law—explicitly provides for or at least implicitly permits the involvement of administrative assistants. In addition, organizational instructions and administrative regulations must be observed. Data protection requirements are also to be considered, particularly when administrative assistants process personal data. It must also be ensured that the assumption of duties is strictly tied to instructions and that administrative assistants only carry out supportive actions; they are legally barred from making independent discretionary decisions or issuing administrative acts.
Are administrative assistants allowed to carry out sovereign measures such as issuing administrative acts?
Administrative assistants are legally prohibited from independently carrying out sovereign measures with external effect—such as issuing administrative acts or exercising direct force. They are solely responsible for technical or organizational support in decision-making and enforcement actions, the responsibility and execution of which are reserved exclusively for civil servants or authorized public service employees. For example, they may draft protocols, open containers, or enable entry to a building, but may not independently make an order or decide an administrative act. Final responsibility remains with the authority’s decision maker.
What liability rules apply to administrative assistants?
In legal terms, administrative assistants are generally liable in accordance with the general civil and criminal law provisions. For damages caused in the course of their work, official liability primarily under § 839 BGB in conjunction with Art. 34 GG applies, provided the auxiliary activity is regarded as the exercise of a public office; in such cases, the state or the relevant corporation becomes the liable party. In cases of intentional or grossly negligent conduct, recourse claims against the administrative assistant are possible. Personal criminal liability also remains in effect for conduct that fulfills elements of criminal law.
How is the instruction relationship between administrative assistant and authority regulated?
Administrative assistants have a close instruction relationship with the competent authority or its organs. Their activities may only be carried out as directed and under the ongoing supervision of the responsible officials. This also includes compliance with detailed instructions regarding the method, scope, and timing of the auxiliary activity. The administrative assistant has no independent decision-making power and must always act according to the instructions received. Exceeding the scope of instructions may have liability or disciplinary consequences.
Are administrative assistants subject to a special duty of confidentiality?
Administrative assistants are legally required to maintain confidentiality. This obligation usually arises from the relevant special statutory provisions as well as, if applicable, from the general Commitment Act (in particular Section 1 of the Commitment Act). They must keep confidential all matters learned in the course of their duties, especially personal data, even after ending their activity. Breaches of the duty of confidentiality can have civil and criminal consequences—including possible proceedings for violating official secrets (§ 353b StGB).
In which areas is the use of administrative assistants particularly relevant?
The use of administrative assistants is particularly provided for in areas such as police and regulatory administration, elections (for example, election assistants), social benefits law, and in the context of enforcement measures. In each of these areas, specific laws, ordinances, or statutes govern the exact admissibility, scope of duties, and potential limitations regarding the use of administrative assistants. It must always be ensured that core sovereign responsibilities are not transferred to administrative assistants and that they remain exclusively engaged in supportive activities within the legal framework.
