Concept and Principles of Administrative Private Law
Das Administrative Private Law refers to the area of law in which public administration acts as a legal subject under private law and is subject to the general rules of civil law. Despite its public law duties, the administration, in certain cases, participates in legal transactions under the same regulations as private individuals. Administrative private law thus contrasts with administrative law in the narrower sense, which is characterized by special public law provisions.
Administrative private law is a subfield of public law that, however, operates on the basis of private law and thereby highlights essential interdisciplinary connections between public law and civil law.
Distinction from Public Law and Public Action
Administrative private law distinguishes itself on the one hand from ‘classic’ administrative law (administrative law in the narrower sense) and on the other from general private law. While the administration typically intervenes to fulfill its duties using public law instruments (e.g., administrative acts), it acts within the scope of administrative private law according to the rules of private law – for example, by concluding purchase, rental, or employment contracts.
The decisive factor is whether the administration is acting as a subject of public or private law within a legal relationship (‘private law form of action’). According to the theory of special legal subjects, this is generally assumed when the administration does not exercise any special public law powers (‘imperium’), but instead acts legally equal to private individuals.
Legal Sources of Administrative Private Law
Administrative private law is not regulated in a single act, but results from the interplay of various legal sources:
- German Civil Code (BGB): As a central framework for private law transactions, the provisions of the BGB fundamentally also apply to administrative bodies acting under private law.
- Special Laws: In addition, various specific laws apply, such as the Commercial Code (HGB), labor law, or tenancy law, insofar as the administration concludes corresponding contracts.
- Public Law Provisions: Certain public law norms can modify or supplement the actions of the administration under private law, such as budgetary restrictions, procurement law, or mandatory principles of ministerial administration.
Areas of Application of Administrative Private Law
Administrative private law permeates various aspects of life and law. Typical fields of application include:
1. Asset Management and Fiscal Administration
When the federal government, federal states, or municipalities act as property owners, landlords, tenants, or buyers, they act under private law and are subject to the relevant provisions of the BGB and other civil laws. In these cases, the administration is the ‘fiscus’ in the legal sense.
2. Public Enterprises and Holdings
When operating municipal enterprises, utilities, or participating in legal entities governed by private law, the administration also acts under private law as a shareholder, stakeholder, contracting party, or employer.
3. Public Procurement and Contract Conclusion
In the context of public services and administrative organization, the administration concludes private law contracts (e.g. contracts for work, service or supply contracts). The initiation and execution of such contracts are additionally subject to procurement law and competition law provisions (e.g., GWB, VgV).
4. State Labor Law
If the employment relationship of public sector employees (e.g., salaried employees, workers) falls within the scope of private law, general labor law with its relevant collective labor provisions applies (§ 611a BGB et seq.).
Legal Consequences and Special Features
Administrative private law is characterized by the fact that, despite the application of private law rules, the administration remains subject to the constraints of public law. This results in specific peculiarities:
1. Binding Effect of Fundamental Rights and Budgetary Principles
Even when acting under private law, the administration is bound by fundamental rights (Art. 1 para. 3 GG). Budgetary regulations (such as budgetary principles, procurement rules) apply additionally.
2. Jurisdiction and Competence of Courts
For legal disputes arising from administrative actions under private law, the ordinary courts (in particular, civil courts) are generally competent (§ 13 GVG). Exceptions only apply if special laws provide otherwise.
3. Application of Private Law Provisions
The conduct of the administration within administrative private law is subject to the same liability and contractual obligations as any other legal entity. Civil law liability for tort and contracts applies without restriction (§§ 280 ff., 823 ff. BGB).
4. Influence of Public Law
In certain cases, public law provisions (e.g. budgetary or procurement requirements) modify private law powers and obligations. The principle of equal treatment, the prohibition of arbitrariness, and the principle of good faith are also included.
Theoretical and Practical Significance
Administrative private law is particularly relevant where the classic distinction between public law and private law is crossed or modified in the administrative body’s legal dealings. It exemplifies the permeability and complementarity of both areas of law and is indispensable for organizing complex state responsibilities.
In terms of efficiency and equal treatment, administrative private law promotes a lawful and transparent administrative practice, while also ensuring that public interests are protected within the framework of private law actions.
Summary
Administrative private law encompasses all legal relationships in which public administration acts under private law. Here, the administration acts as an equal participant in legal transactions, but remains subject to specific public law requirements and obligations. Administrative private law thus forms an important interface between private law and public law and is an essential component of modern administrative law.
Frequently Asked Questions
When and why does administrative private law apply?
Administrative private law applies whenever an authority acts not in the context of its typical sovereign activity, but according to the rules of private law. This is the case, for example, when the state concludes civil law contracts, such as renting office space, purchasing materials, or concluding employment contracts in public administration. The reason for the application of administrative private law is that the state also participates in general legal transactions and, in doing so, acts not with unilateral sovereign powers but as a private party. The legal consequence is that, in principle, the provisions of the German Civil Code (BGB) apply, but due to the involvement of a public administration entity, certain special features must be observed. For instance, public budgetary law or procurement law may impose specific limits or additional requirements.
Which special legal bases can affect administrative private law?
Although civil law is primarily applied in administrative private law, various special statutory provisions from public law can modify or supplement the actions of the administration. Notably, these include budgetary law, procurement law, collective bargaining law, and special regulations such as methods of fund usage in special assets law. These norms often limit the authority’s freedom of contract and can, for example, set requirements for contract conclusion, content, or form. Certain administrative law principles such as the requirements of economy and efficiency can also play a role.
How does administrative private law differ from administrative law in the narrower sense?
While administrative law in the narrower sense (also ‘public law administrative law’) typically covers unilateral sovereign actions by an administrative body – for example, in the form of administrative acts, real acts, or public law contracts – administrative private law is characterized by parity between the administration and private parties. In administrative private law, the administration acts as fiscal administration (also: ‘private economic administration’), i.e., without statutory powers of command or coercion. In general, recourse to the civil courts is available, unless it is a case of a public law dispute.
Which court has jurisdiction over disputes arising from administrative private law?
Disputes arising from administrative private law are generally subject to the ordinary courts, i.e., the jurisdiction of the civil courts (§ 13 GVG). This applies in particular when the authority concludes contracts or other legal transactions based on private law norms. Only if special public law provisions exist, which, for example, must be reviewed by public procurement tribunals, may the substantive jurisdiction shift. In delineation issues, the so-called ‘subject theory’ (who is a party?) and ‘modified subject theory’ (on the basis of which legal rule is action taken?) play a decisive role.
Can administrative law principles also be applied to administrative private law?
Yes, administrative law principles can also be applied to administrative private law in certain situations. This mainly occurs if, in connection with the conclusion or execution of a private law transaction, public interests are affected or the administration is subject to special obligations. For example, the transparency requirement or the obligation to ensure equal treatment of potential contracting parties must be observed, especially in public procurement. Requirements of budgetary law – such as the duty to use funds sparingly – can also affect contract design.
What significance does administrative private law have in the area of public services?
In the field of public services, administrative private law plays a central role, as many governmental tasks – such as in the areas of water supply, energy, waste disposal, or public transport – are increasingly carried out in private law organizational forms, for example, as limited liability companies (GmbHs) or public stock corporations with public participation. The public sector is generally bound to the same private law contract types as private enterprises in such activities, but remains subject to special standards and control through relevant specific public law, especially budgetary and procurement law. The function of administrative private law is therefore to shape the interface between governmental tasks and market competition.
