Administrative Enforcement Laws: Concept, Legal Basis, and Systematics
Concept and significance of administrative enforcement laws
Administrative enforcement laws are special legal provisions that regulate the procedure and requirements for the compulsory enforcement of administrative acts. They serve to enable administrative authorities to enforce public-law obligations by sovereign means when these are not fulfilled voluntarily. Administrative enforcement laws thus constitute a central basis for administrative enforcement law in Germany.
General legal bases
Federal Administrative Enforcement Act (VwVG)
Das Administrative Enforcement Act (VwVG) of the Federal Government forms the legal basis for the enforcement of federal administrative acts by federal authorities. It applies nationwide wherever federal law is enforced by federal authorities and no deviating special statutory rules exist.
Administrative enforcement laws of the federal states
In addition to the Federal VwVG, each federal state has its own administrative enforcement laws (e.g., the Administrative Enforcement Act North Rhine-Westphalia – VwVG NRW, the Hessian Administrative Enforcement Act – HVwVG). These apply to the enforcement of administrative acts when enforcing state law by state as well as municipal authorities. The regulations show substantive similarities with federal law but may differ in detail.
Scope of application of administrative enforcement laws
Subject-matter scope
Administrative enforcement laws apply when a natural or legal person fails to voluntarily comply with an official obligation based on public law and when this obligation cannot already be enforced by other regulations. Typical areas include:
- Compulsory collection of monetary claims (e.g., fees, contributions, fines)
- Compulsory performance or omission of an act (e.g., demolition orders, prohibitions of use)
- Compulsory toleration of measures
Personal scope
Recipients of administrative enforcement can be both natural and legal persons under private law, provided they are addressees of administrative acts establishing public-law obligations.
Forms and means of administrative enforcement
Administrative enforcement laws provide for various enforcement measures, depending on the type of obligation to be enforced:
Enforcement of monetary claims
- Collection by enforcement against assets: This is usually carried out in accordance with the Administrative Enforcement Act and in conjunction with the provisions of the Fiscal Code (AO).
- Attachment of claims and other property rights: Official execution, such as bank account attachment.
Enforcement of duties to act, tolerate, or refrain
- Coercive fine: Announcement and imposition against the obligor to compel compliance.
- Substitute performance: The authority has the required act performed by a third party at the obligor’s expense.
- Immediate force: Application of physical force, particularly against objects (e.g., eviction of a property).
Legal remedies and limits of administrative enforcement
Legal remedies
Various legal remedies are available to the affected party against administrative enforcement measures, in particular:
- Application for interim legal protection (e.g., pursuant to § 80 para. 5 VwGO)
- Objection against measures of the enforcement authority (as far as provided)
- Action for annulment or other administrative court actions
Challenging the enforcement measure generally requires that the administrative act underlying the measure is effective and binding.
Limits and legal requirements
Enforcement measures are subject to specific requirements, in particular:
- Finality of the administrative act: The administrative act to be enforced must be legally effective and enforceable.
- Announcement of the measure: Generally, a warning is required before the actual coercive measure is implemented.
- Principle of proportionality: The enforcement authority may only choose the means that least burdens the obligor and is sufficient to achieve the purpose.
Relationship to other legal provisions
Distinction from civil enforcement
Administrative enforcement is to be distinguished from enforcement in the civil law area (under the Code of Civil Procedure – ZPO). While civil enforcement is carried out by courts at the request of creditors, administrative enforcement is carried out by the responsible authorities themselves.
Special laws
Certain administrative areas are governed by special provisions, which may supersede the general administrative enforcement laws, e.g., in tax law (§§ 249-346 AO) or social law (e.g., in SGB X).
Harmonization and practical relevance
Administrative enforcement laws are closely aligned at the federal and state levels in order to achieve the greatest possible harmonization of administrative enforcement in Germany. Nonetheless, there are differences in procedural details and in the structuring of individual coercive measures.
Summary
Administrative enforcement laws comprehensively regulate the compulsory enforcement of public-law obligations by administrative authorities in Germany. They establish the legal basis for the use of coercive measures, subject to formal and substantive requirements of lawfulness, and ensure legal protection for affected persons. Knowledge of administrative enforcement laws is essential for the application and understanding of administrative enforcement law.
Frequently Asked Questions
Which authority is responsible for ordering and carrying out administrative enforcement?
Responsibility for ordering and carrying out administrative enforcement in Germany is generally determined by the applicable administrative enforcement law (VwVG for the federal government, corresponding state laws for the states). As a rule, the authority competent to issue the administrative act to be enforced (the so-called enforcement authority) is also responsible for enforcement. In cases where coercive measures must be carried out by the police, or in cases of special measures (e.g., searches or substitute performance in emergencies), competence may be transferred to specifically designated enforcement bodies or authorities. In the enforcement of monetary claims, enforcement is regularly assigned to the cash or enforcement office of the relevant body, with further details, such as cooperation with court bailiffs or the use of official assistance, being governed by the applicable federal or state law.
What types of coercive measures does administrative enforcement law provide for?
Administrative enforcement law typically distinguishes between various coercive measures, which may be applied depending on the nature of the obligor’s duty. The core measures are substitute performance, coercive fine, and immediate force. Substitute performance is particularly permitted for the enforcement of actions that can be performed by a third party (e.g., removal of a structure). The coercive fine serves as a means of exerting pressure to compel both actions and tolerations or omissions and may be imposed repeatedly. Immediate force is considered a last resort and includes physically effective measures against persons or property, for example through the use of police physical force. The ordering and application of coercive measures are subject to strict legal requirements, especially the principle of proportionality and the requirement to choose the least severe method that is still effective.
What formal requirements apply for ordering coercive measures in the administrative enforcement procedure?
Before applying coercive measures, the authority must issue a so-called warning notice (Androhungsbescheid), stating the specific coercive measure, the obligation to be enforced, and an adequate deadline for voluntary compliance. The provisions of the relevant administrative enforcement law stipulate that the warning notice must generally be issued in writing and served on the obligor. Exceptions apply, for example, in cases of imminent danger. Additionally, the underlying administrative act must be final (uncontestable) or immediately enforceable before enforcement can begin. The service procedure and form requirements (such as electronic service) are governed by the applicable procedural provisions of the Administrative Procedures Act and the Administrative Service of Documents Act.
What legal remedies are available against administrative enforcement measures?
The affected person is generally entitled to legal protection against coercive measures and enforcement actions. He or she may argue that the formal or substantive requirements for enforcement are not met, e.g., the decision is not final or there has been an improper warning. An appeal against the coercive measure notice by way of an action for annulment under § 42 VwGO is permitted. In addition, an application for interim legal protection may be filed pursuant to § 80 para. 5, § 123 VwGO. In urgent cases, for example, where immediate force is impending, an application may be made in particular for restoration of the suspensive effect or for interim relief against the enforcement action. The structure of the legal remedies is governed by the Administrative Court Procedure Act (VwGO) as well as the corresponding state laws.
How does administrative enforcement relate to civil enforcement procedures?
Administrative enforcement law must be strictly distinguished from civil enforcement law. The special feature of administrative enforcement is that it is carried out on the basis of sovereign powers within public administrative action to enforce public obligations from administrative acts. In contrast, enforcement under the Code of Civil Procedure (ZPO) requires a civil title and is conducted by courts and bailiffs. Overlaps may exist in the attachment of monetary claims; here, administrative enforcement law contains special rules regarding attachment protection or the ranking of claims. In the event of conflict, specific provisions on the effect of binding force and the distinction between the types of enforcement apply.
Under what criteria may substitute performance be ordered as a coercive measure?
Substitute performance is permitted under administrative enforcement laws when the obligor fails to perform an action that can be performed by another, and to which he or she was obliged by an enforceable administrative act (e.g., vacating a property). An action is deemed substitutable whenever it can be performed by a person other than the obligated party. Prior to carrying out substitute performance, the authority must generally announce the measure and set a reasonable deadline. The costs of substitute performance may then be imposed upon the obligor and, if necessary, collected through administrative enforcement. It must be ensured in particular that the obligation does not involve an irreplaceable act (such as a declaration or duty that can only be performed personally) and that the principle of proportionality is observed.
