Administrative Law

Concept and Significance of Administrative Law

Administrative law is a central area of public law that regulates the organization, functions, and actions of public administration. It encompasses the entirety of legal norms that govern the relationship between the state or its administrative bodies and private individuals (citizens, companies), as well as the relationships among administrative bodies themselves. The main purpose of administrative law is to ensure the legality, appropriateness, and transparency of administrative actions.

Structure and Classification of Administrative Law

Distinction from Constitutional Law and Private Law

Administrative law is on the one hand differentiated from constitutional law, which regulates the fundamental structures and principles of the state, and on the other hand from private law, which concerns legal relationships between private individuals. While constitutional law establishes the framework within which administration operates, administrative law regulates the substantive and procedural aspects of concrete administrative activities.

Distinction between General and Specific Administrative Law

Traditionally, administrative law is divided into two main areas:

• General Administrative Law: General administrative law includes the fundamental provisions and principles that apply to all areas of administrative activity. In particular, it regulates administrative organization, the forms of administrative action (for example, administrative acts, public-law contracts, real acts), the principles of administrative activity (principle of legality, discretion, principle of equal treatment, proportionality), as well as administrative procedures and means of legal protection against administrative actions.
• Specific Administrative Law: Specific administrative law governs particular areas of administration, such as building law, police and regulatory law, environmental law, immigration law, social law, trade law, and road traffic law. These legal provisions are frequently scattered across federal and state law and shape administrative actions in the respective specialized fields.

Foundations of Administrative Action

Administrative Bodies and Administrative Action

Administrative bodies are legal entities under public law, such as the federal government, the states, municipalities and municipal associations, as well as certain corporations, institutions, and foundations under public law. Administrative action encompasses all measures by which administrative tasks are fulfilled. It can occur through the exercise of sovereign authority (predominantly by administrative acts), through simple administrative action, or through the conclusion of public-law contracts.

Forms of Administrative Action

The main forms of administrative action in administrative law include:

• Administrative Act: An administrative act is a sovereign measure by an authority in the field of public law for the regulation of an individual case with immediate external legal effect (see § 35 VwVfG). It is the typical means of exercising administrative powers towards citizens.
• Public-law Contract: In addition to the administrative act, the administration may also act through public-law contracts when the regulation is based on mutual agreement. The most well-known example is the settlement in social administration law.
• Real Acts and Simple Administrative Action: These involve actual administrative activities without regulatory character, such as providing information or simple administrative acts, e.g., operating a swimming pool or gritting roads in winter.

Legal Bases of Administrative Law

Statutory Bases

Administrative law is mostly not codified in a single code but regulated in numerous individual statutes and legal ordinances. The central statutory bases include, among others:

• Administrative Procedure Act (VwVfG): The VwVfG regulates the general foundations for administrative procedures at the federal level. The states have their own corresponding administrative procedure laws for matters within state jurisdiction.
• Administrative Court Code (VwGO): The VwGO regulates legal protection against administrative acts and other administrative actions before the administrative courts.
• Special Legislation: These contain specialized legal provisions for individual areas of administration, for example, the Federal Immission Control Act (BImSchG), the Civil Status Act (PStG), the Road Traffic Act (StVG), or the Residence Act (AufenthG).

Other Legal Sources

Other legal sources include:

• European Administrative Law: Certain aspects of administrative action are influenced by regulations and decisions of the European Union. This particularly applies to environmental law, public procurement law, and data protection law.
• Statutes and Regulations: Municipal statutes and autonomous regulations are important legal bases at the local level.
• Administrative Regulations: These primarily have internal steering effects within the administration but can indirectly become relevant for administrative action.

Basic Principles of Administrative Law

Principle of Legality

The principle of legality requires that, in carrying out its activities, the administration may rely solely on a legal basis and is bound by law and justice. It ensures the predictability, oversight, and limitation of administrative power.

Principle of Proportionality

The administration is obliged to observe the prohibition of excess in its activities and to take measures that are suitable, necessary, and appropriate to achieve the intended objective.

Principle of Equal Treatment

Similar situations must be treated equally by the administration, unless factual differentiation is required. This serves to protect against arbitrariness and ensures justice in administrative actions.

Principle of Opportunity and Discretion

To the extent that legal norms grant the administration a margin of discretion in its activities, the exercise of this discretion must be lawful and appropriate. However, priority is given to the principle of legality.

Legal Remedies and Legal Protection in Administrative Law

Preliminary Proceedings (Objection Proceedings)

The preliminary proceedings, also referred to as objection proceedings (§§ 68 ff. VwGO), serve the purpose of extrajudicial review of an administrative act. It provides an opportunity for administrative decisions to be corrected before resorting to court, thereby relieving the administrative courts.

Judicial Protection in Administrative Courts

Legal recourse to administrative courts is available against administrative actions affecting rights. The administrative court system consists of several instances:

• Administrative Courts (first instance)
• Higher Administrative Courts or Administrative Court Hubs (second instance)
• Federal Administrative Court (third instance)

The goal is the judicial review of the administration and the safeguarding of the individual rights of those affected.

Relationship to Other Areas of Law

Administrative law is closely related to other areas of public law, especially constitutional law and state organization law. There is also overlap with European law, particularly in the implementation and application of Union rules in national administrative law. There are also points of contact with criminal law (e.g., administrative accessoriality in certain offenses) and civil law (e.g., official liability, public-law compensation).

Significance and Function of Administrative Law

Administrative law is an essential part of the rule of law principle. It ensures the oversight, guidance, and restriction of state authority, protects individual rights against interference from public power, and ensures that state functions are fulfilled in an orderly manner. By providing legally regulated procedures, transparent administrative structures, and effective legal remedies, administrative law contributes to legal certainty, the building of trust, and the democratic legitimacy of the state.

See also:

• Administrative Procedure Act
• Administrative Court Code
• Federal Administrative Court
• Public Law

Frequently Asked Questions

Who is entitled to bring an action in administrative law (standing), and what requirements must be met?

In German administrative law, standing is primarily determined by § 42(2) of the Administrative Court Code (VwGO). According to this, anyone who claims that they have been injured in their own rights by the challenged administrative act or its rejection or omission has standing. This provision primarily serves to exclude actio popularis and to prevent a person without a subjective legal disadvantage from filing an action. Standing requires at least the possibility that one’s own right is affected by the administrative measure. It is not sufficient for interests or mere reflex effects to be involved. For example, a neighbor can bring an action against a building permit if a protective regulation—such as those for neighbor protection in construction law—could potentially provide them with a legal advantage. In legal proceedings, the court examines standing as part of the admissibility check. The absence of standing results in the action being dismissed as inadmissible.

What is the significance of the right to be heard in administrative proceedings and what are the consequences of its violation?

The right to be heard in administrative proceedings is governed by § 28 of the Administrative Procedure Act (VwVfG) and has constitutional status (Art. 103(1) GG). This right means that before the issuance of a burdensome administrative act, the affected party must be given the opportunity to comment on the facts relevant to the decision. The hearing allows the affected person to present arguments, offer evidence, and make the authority aware of facts it may not have considered. It serves to safeguard fair administrative proceedings and promote the substantive correctness of the decision. If the right to be heard is violated, there is fundamentally a procedural error, which pursuant to § 45(1)(3) VwVfG is generally curable. The authority may make up for the missed hearing, even during court proceedings. However, failure to provide a hearing does not automatically render an administrative act void, but usually results in its annulment by the court if not remedied.

Why and how is the principle of the reservation of the law (Wesentlichkeitstheorie) relevant in administrative law?

The principle of the reservation of the law states that essential decisions affecting the fundamental rights of individuals require a statutory basis. This follows from the rule of law principle (Art. 20(3) GG) and becomes especially apparent in administrative acts relevant to fundamental rights (e.g., interventions in property, residence rights, assembly rights). The administration may not take burdensome measures without or against the law. The legislature must make provisions for essential matters and determine the administrative scope of action through formal laws. The administration may only act within this framework and, in carrying out its functions, is bound by law and justice. In the absence of a statutory basis, the administrative act in question is unlawful and reversible.

What deadlines apply for challenging administrative acts and how do they affect further proceedings?

In administrative law, deadlines for filing legal remedies such as objection and action are particularly significant. According to § 70 VwGO, an objection must generally be filed within one month of notification of the administrative act with the issuing authority. If no formal objection decision but direct judicial remedy is intended, a one-month deadline from service applies per § 74 VwGO. If these deadlines are missed, the administrative act becomes binding and is, in principle, no longer contestable. Exceptions exist if there is missing or defective legal remedy instruction (§ 58(2) VwGO), which extends the period to one year. Missed deadlines can only be remedied in special cases, such as excusable failure to meet a deadline, by reinstatement to the previous status (§ 60 VwGO).

How does discretionary decision-making in administrative law differ from a mandatory decision?

In administrative law, it is important to distinguish whether an authority has discretion in a decision, or if it is strictly bound by statutory requirements. A discretionary decision exists when the law allows the authority a margin of decision, for example through terms such as “may,” “can,” or “is entitled.” In these cases, the authority must weigh all relevant interests and make the decision within the bounds of proper discretion (§ 40 VwVfG). The authority may not surrender its decision-making freedom, for example, by acting mechanically or through self-binding (reduction of discretion to zero). Judicial review here covers errors in discretion, particularly failure to exercise discretion, exceeding discretion, or misuse of discretion. In contrast, mandatory decisions allow no such leeway. The law requires a specific legal consequence when the legal prerequisites are met (“must” provision), meaning the authority has no discretion.

When does an administrative act exist within the meaning of administrative law and why is this distinction significant?

Whether an official measure qualifies as an administrative act is crucial because far-reaching legal consequences depend on it, such as access to legal remedies and certain rules on effectiveness and enforcement. Pursuant to § 35 VwVfG, an administrative act is the sovereign measure of an authority to regulate an individual case in the field of public law with immediate external effect. The distinction is significant because, as a rule, only administrative acts may be contested through opposition and action for annulment. Actions that do not constitute administrative acts, but rather simple administrative actions or real acts, trigger other types of legal protection (e.g., general action for performance or declaratory action). The examination of whether an administrative act exists is performed as part of the admissibility of an administrative court proceeding and is decisive for the admissibility and prospects of success of legal protection.

What role does the principle of opportunity play in administrative law and how does it differ from the principle of legality?

The principle of opportunity means that the administration has discretion in whether and how it acts, particularly in the area of regulatory or police law. This contrasts with the principle of legality, which requires that the authority must act when specific conditions are present. The principle of opportunity is relevant when the law provides for “may” provisions, thereby granting the administration a prerogative of assessment. The principle of legality applies especially in criminal law and in the field of hazard prevention where there is an existing threat to public safety and order, so that there is no discretion. In administrative law, both principles are of central importance as they shape the administration’s decision-making leeway and the possibilities of judicial review.