Concept and Significance of the Administrative Procedures Act
Das Administrative Procedures Act (VwVfG) is a central statute of German administrative law. It governs the general procedures of authorities under public law outside of judicial proceedings. The aim of the VwVfG is to ensure due process of law, the uniform treatment of requests and applications, and the protection of participants in administrative proceedings. The act establishes a binding legal framework for official actions and also ensures transparency and traceability of administrative law decisions.
Scope of the Administrative Procedures Act
Scope of Application (§ 1 VwVfG)
The scope of application of the Administrative Procedures Act is defined in § 1 VwVfG. In principle, it applies to the exercise of public administrative activities by federal authorities and, unless state law provides otherwise, also to state authorities. For state administrations, the respective State Administrative Procedures Acts generally govern the procedural principles.
Exceptions from the Scope of Application (§ 2 VwVfG)
Certain areas are expressly excluded from the scope of application. These include, among other things, matters of tax and customs law, social administration procedures, as well as specific procedures of the Bundeswehr and the Federal Intelligence Service. The VwVfG also does not apply to judicial proceedings, regulatory offence proceedings, or criminal proceedings.
Definitions in the Administrative Procedures Act
Authority (§ 1 para. 4 VwVfG)
The act defines the term authority as any entity that performs tasks of public administration. This includes classic administrative authorities as well as corporations, institutions, and foundations under public law, provided they fulfill administrative functions.
Administrative Act (§ 35 VwVfG)
A core element of administrative procedure is the administrative act. An administrative act is any order, decision, or other sovereign measure taken by an authority to regulate an individual case in the field of public law and aimed at having direct external legal effect. Examples include building permits, orders, or prohibitions.
Basic Principles and Procedural Rules
Principle of Legality
The Administrative Procedures Act is based on the principle of legality of administration. Authorities may only act within the framework of existing laws and must observe statutory requirements.
Principle of Equal Treatment and Fairness
The VwVfG obliges authorities to treat all participants in administrative procedures objectively, impartially, and fairly. Discrimination and irrelevant considerations are excluded.
Official Investigation and Participatory Rights (§§ 24-29 VwVfG)
The principle of ex officio investigation (principle of inquiry) obligates the authority to investigate the facts independently and comprehensively. The participants have the right to be heard, to inspect files, and to be informed about the status of the proceedings. There is a right to be heard.
Course and Structure of Administrative Procedure
Initiation of Administrative Procedure
The administrative procedure is initiated either ex officio or upon application. The authority with subject-matter and local jurisdiction is responsible. The law also regulates the correct approach to application procedures and the consequences of incomplete or erroneous applications.
Participants in Administrative Procedure (§ 13 VwVfG)
Participants include in particular applicants, addressees of an administrative act, and other third parties whose legal interests are affected. They enjoy procedural protection mechanisms.
Duties and Opportunities for Participation
Participants have the right to present their interests, submit applications for evidence, and make statements. In some cases, participation duties exist, such as submitting documents or truthfully providing facts.
Formal Requirements for the Administrative Act
Administrative acts must generally be issued in writing, electronically, or recorded. The administrative act must be specific in content and reveal the essential factual and legal reasons for the decision. It must be justified unless a statutory exception applies.
Notification and Effectiveness
An administrative act only becomes effective once it has been properly notified to the participants. Notification can be effected in writing, electronically, orally, or by public announcement.
Legal Protection in Administrative Proceedings
Notification of Legal Remedies (§ 37 para. 6 VwVfG)
The VwVfG stipulates that an administrative act must be accompanied by information on legal remedies. This informs participants about permissible remedies, deadlines, and the competent authority.
Remedy of Procedural and Formal Errors (§§ 44 ff. VwVfG)
The act contains detailed rules for remedying procedural errors, for example in cases of omitted hearings or erroneous notification. Remedy may take place during the ongoing procedure or, under certain conditions, subsequently.
Revocation, Withdrawal and Resumption of Proceedings (§§ 48 ff. VwVfG)
Administrative acts may be withdrawn or revoked under certain conditions. The act distinguishes between favorable and adverse administrative acts and ties different requirements to them. The VwVfG also regulates the resumption of concluded proceedings in the event of new facts or evidence.
Digitalization and the Administrative Procedures Act
Electronic Communication (§§ 3a, 41 VwVfG)
The act permits the electronic transmission of applications, administrative acts, and other procedural actions, provided that no special form requirements stand in the way. Requirements for a qualified electronic signature as well as for the protection of data privacy and IT security must be observed.
Distinction from Other Procedural Laws
While the Administrative Procedures Act regulates general administrative procedure, there are special laws for specific areas, including the Fiscal Code for tax law or the Social Code for social administrative procedures. In judicial proceedings, the provisions of the Administrative Court Procedure Act apply.
State Administrative Procedures Acts
Independent administrative procedures acts exist for the state administrations of the German federal states. These are largely modeled on the federal VwVfG but may contain different details.
Significance in Legal Practice
The Administrative Procedures Act forms the procedural basis for a wide range of official activities in Germany. Compliance with its provisions is a prerequisite for the validity of administrative acts and guarantees participants protection against arbitrary measures. The law ensures the reviewability of administrative actions and contributes to the acceptance of official decisions.
Summary: The Administrative Procedures Act sets the legal framework for general administrative procedures in Germany. It contains detailed rules on responsibilities, participants’ rights, procedural workflow, form and effectiveness of administrative acts, legal remedies and error correction, as well as on electronic communication and data protection. Thus, the Administrative Procedures Act ensures legal certainty and transparency in administrative actions and is a central element of German administrative law.
Frequently Asked Questions
When does the Administrative Procedures Act (VwVfG) apply, and when is it excluded?
The Administrative Procedures Act (VwVfG) sets out the general provisions for the procedure of German administrative authorities, unless specific procedural rules (e.g., in specialized statutes) apply. In principle, it applies to the public administrative activities of federal authorities and—and via corresponding state laws modeled after the VwVfG—also to the authorities of the states, unless something different is expressly stipulated. The application of the VwVfG is excluded, among other things, for internal administrative activities without external effect, sovereign activity based on international law, in the area of predominantly non-sovereign activity (e.g., the administration acting under private law), as well as in certain fiscal matters pursuant to § 2 VwVfG, for example, in matters of taxation or criminal law enforcement. Proceedings before the courts are also generally not within the scope of the VwVfG.
What is the significance of the hearing in administrative proceedings according to the Administrative Procedures Act?
The hearing of participants is an important procedural principle pursuant to § 28 VwVfG. According to this principle, a participant whose rights could be restricted by an adverse administrative act must be given an opportunity in advance to comment on the facts relevant to the decision. The hearing serves to improve fact-finding and to realize the right to be heard. Not only errors in the hearing, but also failure to conduct a hearing, can result in the administrative act being unlawful. However, there are certain exceptions, for example in cases of imminent danger, if the participant fails to cooperate despite proper request, or in the case of uniform administrative acts toward a large number of persons.
In what form must administrative acts be justified according to the Administrative Procedures Act?
According to § 39 VwVfG, every written or electronic administrative act must, in principle, be accompanied by a statement of reasons. The reasoning must include the essential factual and legal grounds that led the authority to its decision. It serves the purpose of comprehensibility and transparency of administrative activity and allows the affected person to obtain effective legal protection. Exceptions to the obligation to provide reasons exist, in particular, for simple administrative processes or uniform administrative acts toward an indefinite number of persons. The duty to provide reasons does not apply if the participant has applied for the administrative act or consented to its essential content.
What provisions does the Administrative Procedures Act make regarding the notification of administrative acts?
The VwVfG regulates the notification of administrative acts in § 41. An administrative act becomes effective for the participant to whom it is notified. Notification can be given in writing, electronically, orally, or in another way, whereby for written or electronic notification, the administrative act is considered notified upon receipt by the addressee. The authority is obliged to document proper service and may—in the case of formal service pursuant to §§ 3-5 VwZG—choose special forms (e.g., registered mail, certificate of service). Proper notification is crucial, as the periods for legal remedies such as objections or lawsuits begin upon notification.
What is the regulation on access to files in administrative proceedings according to the Administrative Procedures Act?
The right to inspect files arises from § 29 VwVfG and is a key component of the procedural rights of participants. Accordingly, participants in administrative proceedings may, upon request, inspect the files, unless their interest in access is outweighed by overriding public or private interests—for example, the protection of trade or business secrets. Access may be limited if necessary to protect legitimate interests of third parties. The right to file inspection covers both paper and electronic files and usually takes place on the authority’s premises, but can, in exceptional cases, also be realized in other ways, e.g., by copies or electronic transmission.
What provisions does the Administrative Procedures Act contain regarding the remedy of procedural and formal errors?
The VwVfG provides in §§ 45, 46 comprehensive regulations on the remedy of procedural and formal errors. According to § 45, certain procedural errors—such as failure to conduct a hearing or the omission of required committee involvement—may be remedied subsequently during the administrative procedure up to the conclusion of the objection procedure or in the first instance of a potential court proceeding. § 46 VwVfG further stipulates that a procedural error invalidates an administrative act only if the error affected its outcome, the so-called “causality principle.” This means that procedural errors that do not influence the substantive decision do not affect the effectiveness of the administrative act.
Under what conditions can administrative acts be withdrawn or revoked according to the Administrative Procedures Act?
The VwVfG regulates the correction of administrative acts in Section 5, especially in §§ 48 and 49. An unlawful administrative act can, according to § 48 VwVfG, be withdrawn wholly or in part with effect for the past (ex tunc) or for the future (ex nunc). In particular, the protection of legitimate expectations with regard to the administrative act and the interests of the public are to be weighed, whereby the protection of legitimate expectations is less, the more the addressee knew of the unlawfulness or failed to recognize it due to gross negligence. Revocation under § 49 concerns lawful administrative acts, which may be revoked for reasons of public interest or when conditions lapse, even with effect for the future. In both cases, certain conditions must be met, in particular proportionality and the consideration of protected interests.
