Definition and Fundamentals of Administrative Procedure
Das Administrative Procedure is a central concept of administrative law and refers to the formalized process by which authorities prepare, make, and implement sovereign decisions (administrative acts). It encompasses the entirety of legal provisions and actions that authorities must observe in the preparation, issuance, amendment, revocation, or enforcement of an administrative act or a public-law contract. The aim of the administrative procedure is to ensure orderly, rule-of-law-based, and transparent administrative action while safeguarding effective enforcement of the law and the protection of private interests.
Legal Basis of Administrative Procedure
Statutory Basis in Germany
The main regulations for administrative procedure in Germany are set forth in the Administrative Procedure Act (VwVfG) The VwVfG applies to federal authorities and, unless there are specific state regulations, also to the authorities of the federal states. Many German federal states have their own administrative procedure acts (e.g., BayVwVfG for Bavaria).
In addition to the VwVfG, rules on administrative procedure are also found in special laws such as the Fiscal Code (AO) for tax procedures, the Social Code (SGB) for social administrative procedures, or Book Ten of the Social Code (SGB X). For administrative procedures at the municipal level, the norms of the respective state law and specific municipal regulations apply.
Scope of Application
The Administrative Procedure Act is generally applicable to public-law administrative actions with external effect. Exempted are only those areas expressly governed by special laws, those affecting internal organizational relations, or falling under the so-called self-organization prerogative.
Process and Phases of Administrative Procedure
The administrative procedure typically consists of several sequential phases:
1. Initiation of the Administrative Procedure
The procedure begins either ex officio (official procedure) or upon application by the affected person (application procedure). Initiation marks the point from which the authority examines administrative action and prepares appropriate steps (§ 22 VwVfG).
2. Investigation Procedure (Principle of Inquiry)
A key component is the investigation procedure, which is conducted on the basis of the so-called principle of inquiry (§ 24 VwVfG). The authority is obligated to investigate the facts of the case completely and objectively ex officio and to consider all relevant facts and evidence. The obligation of participation by the parties involved is less strict in administrative proceedings than in civil proceedings.
3. Position of Parties and Hearing
Definition of Parties Involved
The group of parties involved includes applicants, addressees of the administrative act, other affected persons, and, where applicable, third parties who are joined. The precise definition of those involved derives from § 13 VwVfG.
Right to Be Heard
A central procedural principle is the guarantee of the right to be heard (§ 28 VwVfG). Before a burdensome administrative act is issued, the parties must be heard and given the opportunity to comment.
4. Decision and Issuance of the Administrative Act
The administrative procedure concludes with the decision, usually the issuance of an administrative act. An administrative act is a sovereign measure under public law to regulate an individual case with external effect (§ 35 VwVfG). The decision must be substantiated in content and notified to the parties (§§ 39, 41 VwVfG).
Form and Grounds
The administrative act may be issued in writing, electronically, orally, or in another way. Written administrative acts must be substantiated, particularly with regard to the legal and factual considerations.
5. Notification and Effectiveness
Notification (§ 41 VwVfG) is a prerequisite for the administrative act to become effective. Upon proper notification, the legal effects take effect, and from this point legal remedy periods also begin to run.
6. Termination and Enforcement
The administrative procedure ends once the administrative act becomes final and binding or is executed, provided no further legal remedies are lodged.
Principles and Requirements of Administrative Procedure
Principles of the Rule of Law
Administrative procedure is shaped by fundamental principles that serve to protect the parties involved and ensure lawful administrative action:
- Legality of Administration: Administrative actions must be based on a statutory provision.
- Proportionality: Measures must be suitable, necessary, and appropriate.
- Equal Treatment: The prohibition of arbitrariness and the principle of equal treatment according to Art. 3 Basic Law must be observed.
- Fairness of Procedure: Guarantee of the right to be heard and the right to a proper decision.
Right to Inspect Files and Transparency
Parties to the administrative procedure have the right to inspect files, provided that no public or private interests conflict (§ 29 VwVfG).
Official Investigation and Cooperation
The authority is obliged to investigate all facts relevant to the decision ex officio. The parties involved are obliged to contribute to establishing the facts within their abilities.
Errors in Administrative Procedure and Their Legal Consequences
Procedural errors do not always result in the nullity or invalidity of the administrative act. Whether an error can be remedied or disregarded depends on the provisions of the VwVfG (§§ 44 et seq. VwVfG). In particular, violations of procedural provisions can, under certain conditions, be remedied retrospectively.
Special Administrative Procedures
In addition to the general administrative procedure, there are numerous specific procedural rules:
Planning Approval Procedure
The planning approval procedure serves the comprehensive administrative approval of large-scale infrastructure projects, for example in road or waterway construction. It is characterized by extensive rights of participation and disclosure.
Objection Procedure
The objection procedure is a pre-litigation procedure for the review of an administrative act. It enables administrative self-control and serves to protect the parties involved from litigation.
Public-Law Contract
Administrative procedure also encompasses the conclusion of public-law contracts (§§ 54 et seq. VwVfG). The basic rules of administrative procedure must also be observed in this context.
International and European Connections of Administrative Procedure
Comparable procedures exist at the European level within the framework of European administrative law, such as in Union administrative law and under Art. 41 of the EU Charter of Fundamental Rights (right to good administration). International standards also exist within the framework of international administrative procedure law.
Significance of Administrative Procedure
Administrative procedure is of essential importance for safeguarding lawful administrative action. It ensures a binding, comprehensible decision-making process within public administration and protects both the public interest and the subjective rights of the parties involved. Compliance with administrative procedure is a prerequisite for the legality and finality of sovereign acts.
This entry provides a comprehensive legal overview of administrative procedure in the German legal system as well as selected international aspects and serves as a sound knowledge base for the field of public law.
Frequently Asked Questions
How does the hearing process in administrative procedure work?
In administrative proceedings, the hearing constitutes a key procedural step, which is regulated in particular by § 28 of the Administrative Procedure Act (VwVfG). Its purpose is to ensure the right to be heard and thereby allow those affected to participate in the authority’s decision-making process. Before an administrative act is issued that interferes with the rights of a party, the party must generally be given the opportunity to comment on the facts relevant to the decision. The authority informs the party of the facts and legal considerations involved and grants a reasonable period for comment. The hearing may take place in writing, orally, or electronically—the decisive factor is that the affected person actually has an opportunity to express themselves. In certain exceptional cases, such as imminent danger, the hearing may be made up for afterward or even omitted (§ 28 (2) VwVfG). Violation of the hearing requirement may result in the administrative act being unlawful; however, a remedy is possible according to § 45 VwVfG. The authority must disclose all essential aspects to enable the party to make an effective statement.
What is the significance of the obligation to provide reasons for an administrative act?
According to § 39 VwVfG, the issuance of an administrative act must generally be substantiated. The obligation to provide reasons requires the authority to clearly set out the essential factual and legal considerations that led to the decision. This serves transparency and comprehensibility of administrative action as well as effective legal review by affected parties and courts. It enables those affected to understand the reasons for the administrative act, identify possible errors of discretion, and to exercise their rights (e.g., by objection or legal action). An inadequate or missing statement of reasons may result in the administrative act being illegal, but here too, a remedy is possible according to § 45 VwVfG. In exceptional cases, such as mass procedures, the obligation to provide reasons may be restricted.
What is the importance of the principle of official investigation (Amtsermittlungsgrundsatz)?
The principle of official investigation, anchored in § 24 VwVfG, stipulates that the authority must independently investigate the facts relevant to the individual case, without being bound by the statements of the parties involved. The authority itself determines the scope and means of the investigation and must take all circumstances relevant to the decision into account. The authority is responsible for ensuring that the facts are ascertained fully and correctly. It is obliged to investigate and consider both incriminating and exonerating circumstances. The principle of official investigation applies to all administrative procedures, regardless of whether the application originates from one of the parties or the authority acts on its own initiative. Limitations occur where special legal provisions provide for a production-of-evidence principle or where party influence is given particular weight.
When and how is file inspection to be granted in the administrative procedure?
The right to inspect files is based on § 29 VwVfG, which grants parties the general right to inspect relevant administrative files if knowledge thereof is necessary for asserting or defending their legal interests. File inspection may be granted within the offices of the authority or, upon request, by providing copies, certified copies, or extracts. It generally covers all documents relevant to the decision, but is limited by the protectable interests of third parties, official operational or trade secrets, and cases where inspection would endanger the purpose of the investigation. Refusals must be justified and may be subject to objection and, if necessary, judicial review. File inspection is a central component of the right to be heard and is vital to ensuring a fair balance of arms in administrative proceedings.
Under what conditions can an administrative procedure be discontinued?
The discontinuation of an administrative procedure may be possible for various reasons. It may occur if the decision to be made has become obsolete, for instance because the application was withdrawn, the result of the procedure is no longer needed, or the authority has lost its jurisdiction. Discontinuation is also possible if a party repeatedly fails to attend despite proper summons or necessary cooperation is not provided within a set deadline. The decision to discontinue the procedure must be communicated to the parties involved and substantiated. Its legal effects generally correspond to those of a final administrative act, so legal protection, such as objection and appeal, is available against the discontinuation itself. Thus, discontinuation is a formal conclusion of the procedure without a substantive decision having been taken.
What time limits and periods of limitation must be observed in administrative procedure?
Various deadlines may be relevant in administrative procedure: procedural deadlines (e.g., for submissions or for lodging legal remedies) and substantive time limits (e.g., for asserting claims or applications). The deadlines for filing legal remedies, such as an objection (usually one month from the notification of the administrative act, § 70 VwGO) and legal action, are strictly binding; missing these deadlines generally results in the loss of legal rights. Substantive periods of limitation are determined by special statutory regulations, often pursuant to §§ 194 et seq. BGB. In administrative law there are also special periods of limitation and forfeiture, e.g., in tax or administrative offences law. Time calculation is generally governed by §§ 187 et seq. BGB, unless specific special provisions apply. Compliance with and review of these periods is essential for both the authority and the parties for the proper conduct and outcome of the administrative procedure.
