Definition and Fundamentals of Administrative Offenses
An administrative offense is an unlawful and reproachable act that fulfills the elements of a statute that may be punished with a fine, provided the action is not already classified as a criminal offense under other regulations (especially criminal law). The concept and basic regulations in Germany are mainly derived from the Act on Administrative Offenses (Ordnungswidrigkeitengesetz, OWiG). Administrative offenses represent a special form of misconduct, situated between criminal actions and mere civil law violations.
Distinction from Criminal Offenses
Administrative offenses are minor violations of legal provisions and differ from criminal offenses primarily due to the type of sanction: while criminal offenses are sanctioned with penalties (such as imprisonment or fines), the sanction for an administrative offense typically consists of imposing a fine. Despite the lesser legal consequences, administrative offenses often fulfill important regulatory functions within public order and administrative law.
Legal Sources and Areas of Application
The central legal basis is found in the Act on Administrative Offenses (OWiG). Numerous special laws, such as the Road Traffic Act (StVG), the Federal Immission Control Act (BImSchG), the Infection Protection Act (IfSG), or the Trade Regulation Act (GewO), contain independent provisions regarding fines. In this way, a wide range of areas of life – for example, environmental protection, health protection, and traffic law – are covered by corresponding regulations.
Requirements for an Administrative Offense
Elements of Offense
An administrative offense requires fulfillment of a statutory offense element. This means that the conduct targeted by the measure must be expressly designated as an administrative offense by law.
Unlawfulness and Reproachability
The conduct must not only objectively fulfill the offense but must also be unlawful, i.e. without justification (e.g., self-defense, necessity). Furthermore, the person must be personally at fault (reproachable), since the principle of culpability also applies in administrative offense law.
No Primacy of Criminal Law
Sanction as an administrative offense is excluded if the conduct already fulfills a statutory element of a criminal offense. Administrative offense law is merely supplementary and only applies if the violation is not punishable as a crime.
The Administrative Offense Procedure
Initiation and Conduct
The procedure for establishing and punishing administrative offenses is set out in Sections 53 et seq. of the OWiG and is generally modeled on criminal procedural law. However, it is subject to its own procedural rules designed to promote expedited and less formal proceedings.
Investigations and Hearing
As a rule, the procedure is initiated by the detection of the alleged violation and the commencement of investigation by the competent authority. The person concerned has a duty to be heard, during which they are given an opportunity to respond to the allegations.
Issuance of the Fine Notice
If the suspicion is confirmed, the competent authority issues a fine notice, which contains not only the sanction (fine) but also the established facts and legal assessment. Additional consequences, such as warnings or driving bans, are possible in certain cases.
Remedies and Further Instances
An objection to a fine notice can be filed within two weeks. If the objection is filed and not granted by the authority, the case is referred to the competent district court (Amtsgericht), enabling judicial review. Further remedies, such as an appeal to the Higher Regional Court, are available in specially regulated cases.
Legal Consequences and Sanctions
Fine
The primary sanction in administrative offense law is the fine. The OWiG stipulates fines of up to 1,000 euros for simple administrative offenses; special laws may set different maximum limits, which can be significantly higher in some cases.
Ancillary Consequences
In certain cases, ancillary consequences may be imposed, most notably driving bans (in traffic law), confiscation measures, or publication of decisions in the context of corporate liability.
Entries and Consequences
Administrative offenses are entered in the Driver Fitness Register (formerly Traffic Central Register in Flensburg) if they are related to road traffic and exceed a certain fine amount or are linked to a driving ban. In other areas of life, particularly serious administrative offenses may also lead to commercial law or disciplinary consequences.
Special Areas of Administrative Offenses
Traffic Law
By far the largest area of administrative offenses concerns road traffic. Violations of the Road Traffic Regulations (StVO), the Road Traffic Act (StVG), or the Driver’s License Regulation (FeV) are typically pursued as administrative offenses – for example, speeding, ‘red light violations,’ or disregarding parking regulations.
Environmental Law
Environmental law also contains numerous provisions concerning fines. Typical violations involve, for example, unlawful handling of waste, violation of emissions regulations, water protection, or nature conservation laws.
Commercial and Economic Law
Economic life is regulated by numerous public policy requirements, non-compliance with which can be sanctioned with substantial fines. Examples include violations of the Trade Regulation Act, pricing regulations, or competition law.
Public Safety and Order
Violations of regulations concerning public safety and order, such as noise disturbances, animal husbandry, or certain violations of the Infection Protection Act, are also prosecuted as administrative offenses.
Special Features in Administrative Offense Law
Responsibility and Corporate Liability
Alongside natural persons, legal entities and associations of persons can also be held liable for administrative offenses if their organs or employees violate relevant regulations in the course of their work. This results in special fine regulations for companies, for example pursuant to Section 30 OWiG. The aim is to achieve effective prevention and control.
Limitation Period for Prosecution
A key principle of administrative offense law is the limitation period for prosecution. Depending on the fine framework, it is at least six months and up to a maximum of three years; in individual cases, it may be longer, particularly in cases of serious offenses or repeat violations.
Historical Development
The modern form of the law governing administrative offenses in Germany dates back to 1968 and the introduction of the OWiG. The objective was to decriminalize minor legal violations and to create an autonomous system of sanctions outside of criminal law. Since then, administrative offense law has been repeatedly adapted to new societal developments and technical conditions.
Summary
Administrative offenses are a central component of the German legal system. They cover a broad spectrum of societal spheres and serve to protect various public and private interests. With the Act on Administrative Offenses, there exists a specialized body of rules allowing for independent processing and efficient sanctioning of minor legal violations. Due to the large number of ancillary laws and specific fine regulations, the law on administrative offenses remains a dynamic and practically relevant field of law, which is of importance to citizens, companies, and authorities alike.
Frequently Asked Questions
What procedural rights does an affected person have in administrative offense proceedings?
In administrative offense proceedings under the Act on Administrative Offenses (OWiG), the affected person has numerous procedural rights safeguarding their position under the rule of law. These include, in particular, the right to be heard (§ 55 OWiG), the right to inspect files (§ 49 OWiG), and the right to remain silent (§ 55 OWiG in conjunction with § 136 StPO). After the hearing and before a fine notice is issued, the affected person is entitled to respond to the allegations in writing or orally, to make motions to take evidence, and to name exculpatory witnesses. The affected person also has the right to be represented by a defense counsel of their choice; this is especially important if the administrative offense is threatened with a driving ban or a high fine. In court proceedings, the affected person has further rights, such as the right to request evidence to be taken, to attend the oral hearing, and the right to a fair trial in accordance with Article 103 of the Constitution (GG). The right to remain silent also protects the affected person from self-incrimination. Furthermore, there are legal remedies, such as objections to the fine notice within two weeks of its service (§ 67 OWiG) as well as avenues for complaints and further legal reviews against court decisions, each with different deadlines and formal requirements that must be observed.
Under what conditions can an administrative offense become time-barred and how long are the limitation periods?
The prosecution of an administrative offense is subject to specific limitation periods according to §§ 31 et seq. OWiG. The length of the limitation period depends on the particular administrative offense and is determined by the highest fine that can be imposed. In most cases, the limitation period for prosecution is six months, but for more severe violations, e.g. in road traffic or environmental administrative offenses, it may be up to three years. The limitation period generally starts when the act is completed. The limitation period can be interrupted by certain actions, such as the hearing of the person concerned, questioning a witness, or issuance of a fine notice (§ 33 OWiG). Each interruption results in a new limitation period. After the statute of limitations has expired, no fine may be imposed on the affected person and any ongoing proceedings must be discontinued.
What legal remedies are available to an affected person against a fine notice?
An affected person has the legal remedy of objection under § 67 OWiG against a fine notice. The objection must be filed in writing or recorded orally before the administrative authority within two weeks of service of the notice. If the objection is lodged in due time, the authority reassesses the facts and may either revoke, amend, or refer the notice to the competent district court. If the objection is not withdrawn, the court decides by judgment or order after conducting a main hearing. Further legal remedies, such as complaints or further legal reviews (§§ 79 et seq. OWiG), are available depending on the circumstances of the case. Special competencies and admissibility requirements apply here, particularly in regard to the amount of the fine or the imposition of a driving ban.
To what extent is evidence taking regulated in administrative offense proceedings and what evidence is admissible?
The taking of evidence in administrative offense proceedings is primarily determined by the provisions of the Code of Criminal Procedure, unless the OWiG contains its own provisions (§ 46 OWiG). In principle, all evidence that can help to clarify the facts is admissible, in particular witness statements, documents, expert opinions, physical evidence (e.g., measuring devices), and the questioning of the accused. Formal motions for evidence can be made in the main hearing before the court, and in principle must be considered unless the application is clearly unfounded or merely aimed at delaying the proceedings. Typical problems in taking evidence often occur with standardized measurement procedures in traffic administrative offense law, with special requirements for documentation and device approval.
What is the significance of the principle of opportunity in administrative offense law?
In contrast to criminal proceedings, the principle of opportunity applies in administrative offense law, as stated in § 47 OWiG. The administrative authority may, at its reasonable discretion, refrain from prosecuting an administrative offense, even if the act has been objectively established. This is frequently the case if the offense is minor or prosecution does not appear necessary for other reasons. Factors such as the personality of the person concerned, the degree of guilt, sanctions already imposed, or court overload may be taken into account. The decision on applying the principle of opportunity is, however, subject to appeal and can be reviewed by a court if the person concerned has a legitimate interest in clarification.
Under what circumstances can a driving ban be imposed as a consequence of an administrative offense?
A driving ban as a consequence of an administrative offense may be imposed in accordance with § 25 StVG in conjunction with § 24 StVG and the relevant provisions of the OWiG. This concerns, in particular, serious traffic administrative offenses such as major speeding violations, red light offenses, or drunk driving. The court or the fine authority may impose a driving ban of one to three months. This is an ancillary consequence to the main fine and serves to promote road safety. The driving ban can be reviewed through objection and subsequent court proceedings. Under certain conditions, there are also legal mechanisms that may allow the driving ban to be deferred or converted in exceptional circumstances, for example in cases of undue hardship for the affected person, which, however, requires thorough examination and presentation of special reasons.
Is it possible to make a voluntary disclosure (Selbstanzeige) in administrative offense law and what are its consequences?
In administrative offence law, unlike in criminal law for certain property offences, there is generally no specific regulation for self-reporting that exempts from punishment or fines. However, a voluntary and comprehensive disclosure of the offence, as well as active cooperation in clarifying the facts, can be taken into account by the authority when exercising discretion in accordance with the principle of opportunity (§ 47 OWiG). In certain areas governed by special legislation, such as environmental or competition law, there are scenarios in which self-reporting can lead to a significant reduction of fines or the discontinuation of prosecution. The exact consequences depend on the specific regulation and the relevance of the information provided by the affected party for the clarification of the facts. In any case, self-reporting does not result in the automatic termination of proceedings, but remains a factor in the authority’s discretionary decision.
