Definition and Nature of Administrative Wrongdoing
Administrative wrongdoing refers to unlawful conduct by a public administration in the course of official duties. It encompasses all acts, omissions, or measures taken by authorities that are in contradiction to applicable legal norms. This concept is central to understanding the rule of law and its requirements for administration, as it ensures effective legal protection for citizens against official actions.
The term covers not only violations of individual subjective rights but also includes breaches of objective legal norms. Administrative wrongdoing is thus distinct from criminal wrongdoing and private law wrongdoing, although there are often overlaps with other legal areas, especially liability law for public officials and disciplinary law.
Legal Basis of Administrative Wrongdoing
Constitutional Foundations
The German Basic Law obligates public administration to comply with law and statute (Art. 20 para. 3 GG – principle of the legality of administration). Violations of these fundamental obligations regularly constitute administrative wrongdoing. Additionally, basic rights (e.g., Art. 2 para. 1, Art. 3, Art. 19 para. 4 GG) entail protective duties in favor of individuals, the neglect of which may also amount to administrative wrongdoing.
Ordinary Statutory Foundations
At the level of ordinary statutes, the most important regulations are found in the Administrative Procedure Act (VwVfG), the Rules of Procedure of Administrative Courts (VwGO), as well as numerous special laws (e.g., Social Code, Building Code). Defective administrative acts, procedural errors, abuse of discretion, or the failure to carry out necessary administrative measures are typical manifestations of administrative wrongdoing.
Types of Administrative Wrongdoing
Illegality of Administrative Acts
An administrative act is unlawful if it is not in accordance with the legal order. Illegality may arise for the following reasons:
- Formal Errors: e.g., lack of hearing, missing statement of reasons, incompetent authority.
- Material Errors: Violation of statutory requirements, exceeding statutory limits.
- Errors in Discretion: Failure to exercise discretion, exceeding discretion, or misuse of discretion.
Omission of Administrative Measures
Administrative wrongdoing also occurs when an authority fails in its duties, for example, when a citizen has a claim to administrative action (claim to a decision free of discretionary errors, claim to issuance of an administrative act), but the authority remains inactive or does not act within a reasonable time (inaction, § 75 VwGO).
Real Acts and Purely Sovereign Actions
Administrative conduct without the issuance of an administrative act—for instance, through real acts or purely sovereign actions—can also be unlawful and thus constitute administrative wrongdoing (e.g., unlawful towing measure, unjustified state action).
Administrative Wrongdoing in the Exercise of Discretion
Administrative bodies often enjoy discretion regarding whether and how to act. Administrative wrongdoing can result from improper use of such discretion, for example, in the case of:
- Failure to exercise discretion (discretion not exercised),
- Exceeding discretion (by exceeding statutory boundaries),
- Misuse of discretion (misapplication of purpose).
Consequences and Legal Effects of Administrative Wrongdoing
Appeal and Correction of Unlawful Administrative Acts
An unlawful administrative act can generally be challenged (see § 113 para. 1 VwGO). Depending on the nature of the error, the administrative act may be void (§ 44 VwVfG) or merely unlawful but remain in effect (remediable defects, § 45 VwVfG).
Official Liability
Administrative wrongdoing can give rise to claims for damages. Pursuant to Art. 34 GG and § 839 BGB, the state is liable for damages caused by unlawful conduct of public officials. Enforcement usually takes place before the civil courts.
Disciplinary and Criminal Consequences
Administrative wrongdoing can lead not only to civil law but also service law or even criminal consequences. Civil servants or public employees may face disciplinary action for unlawful administrative acts; in severe cases (e.g., perversion of justice, § 339 StGB), criminal prosecution may be considered.
Revocation and Withdrawal
The administration is obliged to correct unlawful actions. This is done through withdrawal (in cases of unlawful favorable acts, §§ 48 VwVfG) or revocation (in cases of initially lawful administrative acts that later become unlawful, § 49 VwVfG).
Distinction Vis-à-Vis Other Legal Violations
Administrative wrongdoing must be distinguished from:
- Private Law Wrongdoing: concerns relationships between private parties.
- Criminal Wrongdoing: requires culpable and statutory conduct and is adjudicated by criminal courts.
- Constitutional Wrongdoing: concerns violations of the constitution, which may also occur in administration, but which are resolved by constitutional organs.
Legal Protection Against Administrative Wrongdoing
Judicial Protection Before Administrative Courts
Anyone whose rights are infringed by administrative wrongdoing is entitled, pursuant to Art. 19 para. 4 GG, to effective legal protection before the administrative courts. The most important legal remedies are:
- Action for Annulment (against adverse administrative acts),
- Action for an Order (to obtain the issuance of an administrative act),
- General Performance Action (other administrative actions),
- Declaratory Action (declaration of unlawfulness or nullity).
Preliminary Proceedings
Before initiating judicial proceedings, in some cases an administrative procedure (objection procedure) must be conducted to give the administration the opportunity to self-correct (§§ 68 ff. VwGO).
Other Supervisory Instances
Aside from administrative courts, other supervisory mechanisms exist—for example, through petitions, federal or state data protection officers, state citizens’ commissioners, or audit offices.
Administrative Wrongdoing in the International Context
Administrative wrongdoing is not limited to national law. In the European context, for example, there are numerous obligations regarding the legality of administrative conduct (Art. 41 CFR, right to good administration; ECHR, effective legal remedy). Basic principles of the legality of administration are also recognized in international administrative law.
Summary
Administrative wrongdoing describes all unlawful measures, omissions, or actions of the administration in the exercise of public authority. Adhering to legal boundaries is essential for a functioning rule of law and for protecting citizens from arbitrary state action. The legal system provides those affected with differentiated legal remedies, the utilization of which is a prerequisite for the review and correction of administrative wrongdoing. The entire system of administrative oversight serves to uphold the law and protect against disproportionate administrative actions.
Frequently Asked Questions
What are the legal consequences of established administrative wrongdoing?
If administrative wrongdoing is established—that is, if an administrative act or a failure to act in breach of duty violates applicable law—a variety of legal consequences may arise. In most cases, the directly affected act or measure is unlawful and may be set aside by administrative courts (annulment action), provided that an aggrieved citizen or third party challenges it in due time. Furthermore, claims for damages pursuant to § 839 BGB in conjunction with Art. 34 GG may arise if the administrative wrongdoing has led to property damage. Here, causality, fault, and an adequate link must be established. The injured party must, however, prove that the unlawful official act caused the damage and that there are no statutory exclusions of liability. In addition to individual consequences, the administration may be obliged to eliminate the unlawful situation (claim for restitution), issue a new decision upon request, or in some cases, take measures to prevent future legal violations. Disciplinary and criminal consequences are also possible if the official’s conduct fulfills relevant legal offenses.
What legal remedies are available against administrative wrongdoing?
Affected parties can use various legal remedies to challenge administrative wrongdoing. The main instrument is the annulment action under § 42 para. 1 VwGO, which seeks the annulment of an adverse administrative act. In addition, an action for an order can be brought if the authority is to be compelled to take a specific action (for example, the granting of a requested permit). If no administrative act exists but a factual administrative act was unlawful, in individual cases a declaratory action under § 43 VwGO may provide relief. Additionally, in urgent cases, interim relief can be obtained via an application under § 80 or § 123 VwGO to avert negative effects until the main proceedings are decided. Beyond these judicial means, there is the possibility of lodging an objection to administrative decisions, unless excluded by state law.
To what extent is the administration liable for damages caused by administrative wrongdoing?
For damages directly attributable to administrative wrongdoing, the primary liability rests with the state or public-law corporation whose official or organ committed the breach of duty. The basis for this is § 839 BGB (official liability) in conjunction with Art. 34 GG, which transfers responsibility from the official to the respective body. Requirements for a claim are sovereign conduct, culpable breach of official duty, occurrence of property damage, and the presence of an adequate causal nexus. Furthermore, there is subsidiarity, meaning the injured party must generally exhaust all primary legal remedies (objection, annulment action, etc.) before claiming damages. In exceptional cases, non-material damages under § 253 para. 2 BGB (e.g., violation of the general right of personality) may also be compensated.
What role do legal remedies such as objection or remonstration play in administrative wrongdoing?
Before resorting to judicial legal protection, remedies such as the objection (see § 68 VwGO) provide affected parties with an effective means to contest unlawful administrative acts. The objection procedure allows the higher administrative authority to independently review the legality and appropriateness of the challenged measure, to correct errors, and to remedy grievances out of court. This not only serves the principle of administrative self-control but also relieves the courts. The duty of remonstration is a civil service mechanism requiring officials to contact superiors if they doubt the legality of an instruction (see § 36 BeamtStG, § 63 BBG). Both remedies serve internal error control and contribute to eliminating administrative wrongdoing through internal channels.
Can administrative wrongdoing have criminal consequences?
Administrative wrongdoing that goes beyond mere breaches of public law procedural rules or substantive rights can become criminally relevant if an official’s conduct fulfills criminal offenses—such as bribery (§ 332 StGB), acceptance of benefits (§ 331 StGB), perversion of justice (§ 339 StGB), or negligent bodily injury (§ 229 StGB). In such cases, administrative wrongdoing constitutes a criminal offense, which is prosecuted separately by law enforcement agencies. Attempts or preparations of certain offenses are also punishable. In addition to criminal sanctions, the affected official may also be subject to further service law or disciplinary actions, such as dismissal, transfer, or disqualification from civil servant status.
How can an affected person demand the elimination of an unlawful state following established administrative wrongdoing?
If an administrative court or another competent authority establishes administrative wrongdoing, the affected person can demand the elimination of the unlawful consequences through a claim for restitution. This claim is independent of fault and aims to restore the status that existed before the unlawful measure, insofar as this is actually and legally possible. This may include, for example, withdrawal of an adverse administrative act, refund of unlawfully retained funds, or restoration of legal positions. The claim for restitution is asserted in court through an action for an order if the administration does not voluntarily provide redress.
Is there a claim for compensation for non-material damage resulting from administrative wrongdoing?
A claim for compensation for non-material damages, such as emotional distress or impairment of personal rights, is only available in German administrative law under certain circumstances. As a rule, § 839 BGB provides for compensation primarily for property damage. A claim for compensation for pain and suffering also exists under § 253 para. 2 BGB if administrative wrongdoing has violated specially protected legal interests such as life, health, freedom, or the general right of personality. In such cases, official liability also applies to non-material damages, provided the other liability requirements—especially fault of the official—are met. The impairment must go beyond everyday inconvenience in intensity and involve an objectively comprehensible personal injury.
