Definition and significance of admissibility
The term admissibility is a central term in German procedural law and designates the permissibility of a specific procedural or legal remedy for a particular case. Admissibility determines whether and under which conditions a legal remedy, application, or action is permissible at the respective stage of the proceedings. Clarifying this question is a prerequisite for a court or authority to examine an application on the merits.
The admissibility of a legal remedy is generally determined by the relevant statutory provisions of the applicable code of procedure, such as the Code of Civil Procedure (ZPO), the Code of Administrative Court Procedure (VwGO), the Code of Criminal Procedure (StPO), the Fiscal Court Code (FGO), or the Social Court Act (SGG).
Admissibility under German law
General significance in procedural law
Admissibility constitutes one of the essential requirements for the admissibility of procedural legal remedies and applications. It clarifies whether the chosen procedural remedy is provided for and permissible under the respective code of procedure for the matter at hand.
A legal remedy is particularly not admissible if the sought legal protection cannot be achieved by the chosen procedure or if another, superior, or more specific procedure is prescribed.
Admissibility versus merits
By way of distinction: the examination of admissibility is attributed to the first stage of the admissibility test of an application or legal remedy and serves formal procedural conduct. Only once admissibility is affirmed will the examination of the merits follow, that is, a substantive assessment of the case.
Admissibility under individual codes of procedure
Admissibility in civil proceedings (ZPO)
In civil proceedings, the admissibility of a legal remedy—for example, types of actions, appeals, complaints, and other applications—is determined by the respective provisions of the Code of Civil Procedure (§§ 253 et seq. ZPO, § 511 ZPO, § 567 et seq. ZPO).
Admissibility of types of actions
The admissibility of an action, such as an action for performance (§ 253 ZPO), a declaratory action (§ 256 ZPO), or a formative action, depends on the sought objective of legal protection. An inadmissible action is generally to be dismissed as such.
Admissibility of appeals and revisions
The appeal (§ 511 ZPO) is admissible against first-instance final judgments, provided the amount in dispute exceeds 600 euros or if the court expressly allows the appeal. The revision (§ 542 et seq. ZPO) is only admissible against appellate judgments and, as a rule, only if permitted by the appellate court or in cases of fundamental importance.
Admissibility of the application for interim relief
An interim injunction (§§ 935, 940 ZPO) is also only admissible if the claim for legal protection cannot be secured by an action on the merits (main proceedings), and provided that, in addition to the requirements of interim relief, both the procedural route and the form are observed.
Admissibility in administrative proceedings (VwGO)
The Code of Administrative Court Procedure contains specific provisions on the admissibility of various types of actions and legal remedies.
Types of actions
* The action for annulment (§ 42(1) 1st Alt. VwGO) is admissible if the revocation of a burdensome administrative act is sought.
* The action for a mandatory order (§ 42(1) 2nd Alt. VwGO) is admissible if the issuance of a beneficial administrative act is sought.
* The declaratory action (§ 43 VwGO) is admissible for the declaration of the existence or nonexistence of a legal relationship, provided no other procedure is available.
* The general action for performance supplements the aforementioned actions where neither an annulment, mandatory order, nor declaratory action covers the subject matter.
Admissibility of legal remedies
The appeal (§ 124a VwGO) and revision (§ 132 VwGO) are generally admissible against judgments, subject to statutory value limits and requirements for leave to appeal. A complaint is admissible against certain court decisions, e.g., in interim relief proceedings (§ 146 VwGO).
Admissibility in criminal proceedings (StPO)
In criminal proceedings, the Code of Criminal Procedure regulates the admissibility of legal remedies.
* The appeal (§ 312 StPO) is admissible against first-instance judgments of the Local Courts.
* The revision (§ 333 StPO) is in many cases admissible against judgments of the Regional Courts and Higher Regional Courts.
* The complaint (§ 304 StPO) is generally admissible against all appealable decisions of the courts at any time.
Any legal remedy is only admissible if the scope of application of the norm is met. Otherwise, it will be rejected as inadmissible.
Admissibility in other codes of procedure
Fiscal Court Code (FGO)
In fiscal court proceedings, too, the requirements for admissibility are linked to the respective statutory provisions (§ 33 FGO for actions, § 115 FGO for revisions).
Social Court Act (SGG)
In social court proceedings, the admissibility of types of actions (§ 54 SGG, § 55 SGG, § 56 SGG) as well as legal remedies (§ 143 SGG, § 160 SGG) is also subject to statutory requirements.
Examination scheme for admissibility
The question of admissibility is to be answered according to a fixed scheme:
- Regulatory objective: What is the objective of the legal protection being sought?
- Permissible type of proceedings: What type of proceedings does the relevant procedural code provide for this objective?
- Special features/exceptions: Are there special provisions that take precedence over or modify the procedure?
Especially in the examination scheme for the inadmissibility of actions, applications, and legal remedies, admissibility emerges as one of the first examination criteria.
Consequences of lack of admissibility
A lack of admissibility results in the inadmissibility of the legal remedy filed. The relevant court or authority may not review the merits, but must reject the application or action on formal grounds. Usually, a new or alternative procedure remains possible, provided the substantive law situation has not already been conclusively decided elsewhere.
Distinction from other requirements of admissibility
Admissibility must be strictly distinguished from other requirements for admissibility, such as jurisdiction (local/subject-matter), standing, the need for legal protection, formal and deadline requirements, and proper representation. It serves exclusively for the correct selection of the procedural means.
Significance in practice
The examination of admissibility is regularly the subject of judicial and administrative admissibility tests. An incorrect choice of legal remedy can have significant adverse legal consequences for the party, since, in case of inadmissibility, rules on preclusion or missing deadlines may apply.
References
* Zöller, Code of Civil Procedure, commentary
* Kopp/Schenke, Code of Administrative Court Procedure, commentary
* Meyer-Goßner, Code of Criminal Procedure, commentary
* Tipke/Kruse, Fiscal Code, Fiscal Court Code, commentary
* Application statutes and case law of the federal courts
Summary
Admissibility is an essential element of German procedural law and has decisive consequences for the procedural permissibility of actions and applications. Its assessment is always based on the respective code of procedure in connection with the sought legal protection objective. Proper examination of admissibility is a prerequisite for the effective enforcement of rights before courts and authorities.
Frequently asked questions
When is an action admissible in civil proceedings?
The admissibility of an action in civil proceedings depends on whether the plaintiff has chosen the correct legal remedy in accordance with the code of procedure for asserting the claim. Under German civil procedure law, an action is generally admissible if it seeks judicial enforcement of a claim that is considered possible and is not excluded by statute. Types of actions (performance, declaratory, and formative actions) are distinguished by their respective procedural objectives. The action for performance or payment is admissible if the plaintiff demands performance, e.g., payment of money or surrender of an item (§ 253 ZPO). The declaratory action is admissible if the plaintiff has a legal interest in determining the existence or nonexistence of a legal relationship (§ 256(1) ZPO). A formative action is always admissible when the plaintiff seeks a change in legal relations (§ 894 ZPO—e.g., in cases of declarations of intent). Ultimately, the key issue for admissibility is always whether the legal protection objective can be achieved with the chosen type of action under the ZPO.
How is the admissibility of judicial protection examined in administrative proceedings?
In administrative proceedings, admissibility is primarily determined by the correct choice of type of action in accordance with the Code of Administrative Court Procedure (VwGO). The distinctions are the action for annulment (§ 42(1) 1st Alt. VwGO), the action for a mandatory order (§ 42(1) 2nd Alt. VwGO), the general action for performance, and the declaratory action (§ 43 VwGO). Admissibility is primarily determined by the objective of the action: if revocation of an administrative act is sought, an action for annulment is admissible. If it concerns obliging the authority to issue a denied or omitted administrative act, the action for a mandatory order applies. If the plaintiff seeks another administrative act, an actual act or forbearance, the general action for performance is to be chosen. If there is an interest in the determination of a certain legal relationship, the declaratory action is admissible. The examination of admissibility is mandatory and always the first step in the admissibility review of an action.
What is the significance of admissibility in the context of interim relief?
In interim relief—both in civil and administrative proceedings—admissibility is determined by the requested provisional remedy. In civil law, these are generally the preliminary injunction (§§ 935 et seq. ZPO) and attachment (§§ 916 et seq. ZPO). Attachment is admissible to secure enforcement for monetary claims, whereas a preliminary injunction serves to secure other claims, especially in cases of claims for injunction or toleration. In administrative law, applicants can request the suspensive effect of an action against burdensome administrative acts under § 80(5) VwGO, or seek interim relief under § 123 VwGO for other measures of the authorities. Admissibility therefore requires careful examination of the objective and the statutory framework for admissibility of the chosen interim remedy.
Is there an admissibility examination in criminal proceedings?
There is also an admissibility examination in criminal proceedings, although it differs from those in civil and administrative proceedings. Here, it primarily concerns the admissibility of legal remedies such as appeal, revision, and complaint. The Code of Criminal Procedure (StPO) regulates when and against which decisions which legal remedy can be lodged. For example, an appeal is admissible against first-instance judgments of the Local Courts, whereas revision is regularly admissible against judgments of the Regional Courts and Higher Regional Courts. Complaints are admissible against other procedural decisions (§ 304 StPO), provided they are not expressly excluded or another legal remedy is prescribed. Admissibility is assessed in each case on the basis of the applicable provision and the operative part of the challenged decision.
What influence does admissibility have on court decisions?
Admissibility is an aspect of permissibility and is always examined ex officio by the courts. If the chosen legal remedy or type of action lacks admissibility, the action or application is inadmissible and will be dismissed on that ground, without any examination of the substance of the claim. An incorrect type of action may only be permissible if the court, in accordance with § 88 VwGO or § 308 ZPO, interprets the application for legal protection correctly and, in exceptional cases, reclassifies the action into the correct type if this is legally possible. In principle, however, a lack of admissibility leads to the procedural termination of the case without a decision on the merits.
What role does admissibility play in constitutional complaints?
In constitutional complaints pursuant to Art. 93(1) no. 4a GG in conjunction with §§ 13 no. 8a, 90 et seq. BVerfGG, admissibility is decisive for whether the Federal Constitutional Court is even competent to deal with the grievance. A constitutional complaint is admissible if the complainant claims to be violated by a public authority—that is, by legislation, executive action, or judicial decisions—in their fundamental rights or equivalent rights. The subject of the complaint can be acts of direct public authority as well as violations of legal provisions. The examination of admissibility is also mandatory here, and if a complaint is inadmissible—e.g., in complaints against private parties or acts lying outside the competence of the court—it will be rejected as inadmissible.
