Alternative Determination

Definition and Explanation of the Alternative Determination

The alternative determination is a term from German law and essentially refers to a special form of judicial or administrative determination of facts, in which, when uncertainties remain, it is not clearly decided which of several possible versions of events corresponds to reality, but instead, the decision leaves several alternatives open. This form of determination becomes particularly relevant when, for factual reasons, an exact determination of a sequence of events is not possible or can only be achieved with disproportionate effort, but a legal decision must nevertheless be made.

In contrast to findings of guilt or findings regarding the elements of the offense, where a specific sequence of events is assumed to be proven, the alternative determination involves establishing several alternative versions of the facts as possible, and a legal assessment is then made on this basis.

Areas of Application for the Alternative Determination

Civil Procedure Law

In civil procedure law, alternative determination may be applied, for example, when it remains unclear which specific action caused a loss, but it is established that the loss was caused by one of several possible alternatives and the party or parties involved could be liable for damages. The court then considers multiple possible courses of action without committing to one, insofar as this is irrelevant for granting the claim.

Example: If it remains unclear whether a loss was caused by the actions of person A or person B, the court may still find liability if both contributed to the loss in a comparable manner and the plaintiff can prevail on the basis of the alternative factual scenarios.

Criminal Law

Alternative determination also plays a role in criminal law, for example when it remains unclear by which specific act of the accused a criminal offense was committed. However, the requirements for judicial conviction in criminal proceedings are particularly strict, so alternative determinations are permissible only in very limited exceptional cases. The principle of “in dubio pro reo” (“when in doubt, for the accused”) takes precedence here.

An example is the distinction as to whether a defendant committed theft or handled stolen goods, but it is at least established that some criminal conduct exists. The requirements for alternative determination in such cases are strictly interpreted by the case law of the German Federal Court of Justice.

Administrative Law

In administrative law, alternative determination may play a role when examining bases of claims or the legality of administrative acts. In this context, an authority or administrative court can rely on several alternative versions of the facts as the basis for a decision, provided the legal consequence is identical in all alternatives and no further negative legal consequences arise for those affected.

Legal Framework and Requirements for Alternative Determination

Principles of Judicial Conviction

Alternative determination lies in the area of tension between the principle of free judicial assessment of evidence (§ 286 ZPO, § 261 StPO) and the requirement that the deciding judge must be convinced of a specific version of the facts. Therefore, it is permissible—both in civil and criminal proceedings—only under certain conditions: There must be several versions of the facts, each appearing sufficiently probable based on the evidence obtained. There must be no objective possibility to regard only one version as correct. The legal consequence must be identical or at least equivalent in all established alternatives.

Kodal, Peter: “Die Alternativfeststellung im Zivilverfahren,” NJW 1996, 2322. König, Johannes: “Zur Problematik der Alternativfeststellung im Strafprozess,” JZ 2012, 23-29. Bundesgerichtshof, Judgment of 20.01.2005 – III ZR 244/04.
* Baumgärtel, Heinz: Handbuch der Beweislast, Volume 1: Civil Procedure Law, 3rd Edition 2013.

This article provides a comprehensive legal classification of alternative determination and is intended to serve as a reference work for legal practice and academia, giving access to this important procedural concept.

Frequently Asked Questions

When is an alternative determination applied in a legal context?

Alternative determination plays a role especially when it is not possible to definitively establish a legally relevant set of facts—for example, in tax law, civil procedure, or public law—for factual reasons. It is applied when the facts could reasonably be assumed in various ways and it might be relevant to the decision which of several possible scenarios actually occurred. The aim of alternative determination is to enable the legal authorities (e.g., tax administration or court) to perform a legal assessment for each alternative so that—even if the actual sequence of events ultimately cannot be proven—a legally sound decision may be made. Typically, alternative determination is used when uncertainty exists as to, for example, the allocation of specific assets or whether certain requirements for tax liability or eligibility for subsidies are met. In practice, this occurs particularly in administrative notices or judgments, where the decision is then worded “in the alternative” (e.g.: “If x applies, …, otherwise … applies …”). This approach serves efficiency and legal certainty in administrative and court procedures by allowing multiple legal possibilities to be covered in a single decision statement, without the need for separate proceedings for each alternative.

What conditions must be met for an alternative determination?

For an alternative determination, it is required that the relevant fact either cannot be established with certainty or that several independent versions of the facts may be affirmed, each of which would lead to a different legal assessment. Furthermore, the establishment of one set of facts or another must be significant to the decision or administrative act (relevance for the decision). However, the different alternatives must not exclude each other, but each must represent a complete, plausible, and legally assessable state of facts. In addition, the legal authority is generally required to explicitly state why a final clarification of the facts is not possible and which specific alternatives are being considered. The alternatives must ultimately be clearly and understandably described so that the person affected can comprehend how the decision will be impacted depending on the respective alternative.

What effect does the alternative determination have on those involved?

Alternative determination means that the administrative act or judgment stipulates a legal consequence for each respective version of the facts. For the addressee, this means legal certainty in that, regardless of which alternative applies or can later be specified, the legal consequences are clearly and transparently regulated. The alternative findings generally bind both the addressee and the administration or court for future proceedings, especially if, for example, new evidence or investigative findings later allow the actual facts to be determined with certainty. In tax law, alternative determination can mean that tax assessments stipulate, “in the event that…” or “should it turn out that…,” certain legal consequences, thereby preventing subsequent corrections. However, the effect is limited to the specified alternatives and does not have any legal force beyond them.

In which types of proceedings is alternative determination especially relevant?

Alternative determinations are particularly important in proceedings in which uncertainties regarding the facts occur more frequently and there is a legal need for efficient, practical solutions. Typically, they are applied in tax administration proceedings (e.g., in determination notices pursuant to § 179 AO), in general administrative proceedings, and in court proceedings, particularly in civil and administrative procedure law. In civil proceedings, they are often used in connection with claims for performance, declaratory actions, and actions shaping legal relationships, where the precise facts remain uncertain—for example, in disputes about the allocation of assets or the liability of multiple parties. In tax law, alternative determinations provide a practical solution for addressing several possible factual scenarios within determination notices, such as when it is unclear which person is the economic owner of income. They are also used in social administration or civil service law, when the correct legal status cannot be clarified with finality for factual reasons.

What formal requirements apply to an alternative determination in administrative acts or court decisions?

An alternative determination is only effective if the affected alternative versions of the facts are clearly and unambiguously differentiated from one another and are sufficiently definite. Each alternative must be presented as a standalone, self-contained case and linked to the corresponding legal consequence. The obligation to provide reasoning requires the administration or court to explain in a comprehensible manner why a final determination is not possible and what specific uncertainties exist. In practice, the presentation is usually made with formulations such as “In the event that… applies …; if … applies, then … applies.” In particular, the principle of definiteness (§ 119 AO or § 37 VwVfG) requires that the legal consequences for each named alternative be unmistakably clear. To this extent, both the facts and resulting legal application for each alternative must be set out in full. Unclear, contradictory, or overly vague alternative formulations may render the determination unlawful.

How does alternative determination differ from a subsidiary determination or a condition in administrative law?

Alternative determination differs from a subsidiary determination or a condition in that it sets out several alternative factual scenarios and stipulates the legal consequence for each one independently. In contrast, a condition in the legal sense (§ 36 VwVfG) is an element whose occurrence or non-occurrence lies outside of the administrative act and upon whose later realization the effectiveness or effect of the administrative act depends. A subsidiary determination, on the other hand, occurs when a decision is made only under an additional (secondary) prerequisite or as a “subsidiary consideration” to address a potential annulment or amendment. While alternative determination sets out several options side by side, with the legal consequence applying in each scenario, a condition fixes the administrative act to the future occurrence of a specific event, and a subsidiary determination is confined to the contingency that the primary determination is not upheld.

What are the consequences of a defective alternative determination for the legal validity of an administrative act or judgment?

If an alternative determination is defective—for example, because the alternatives are not sufficiently clearly distinguished from each other or are formulated too vaguely—this can render the administrative act or judgment unlawful and, if necessary, lead to its annulment. The deciding factor is whether the affected person can tell which legal consequence applies to which actual constellation, or if the alternatives overlap or contradict each other. Courts will review, within the context of appeals, whether the principle of definiteness has been observed and whether the respective alternatives are truly relevant to the decision. If an alternative determination is drafted too broadly or vaguely, it may qualify as an inadmissible ‘rubber decision’ and thus be void. Insignificant errors which clearly have no impact on the legal position of the affected party generally do not invalidate the determination but may be corrected.