Definition and significance of the application for performance
An application for performance is a targeted request by a natural or legal person aiming to assert a specific claim to performance. The term is relevant in various areas of law, especially in civil procedure law, administrative law, and social law. With an application for performance, the applicant seeks the execution, creation, omission, or toleration of a specifically determined action by another party or a public authority.
Legal framework of the application for performance
Basic classification
In legal terms, an application for performance is a request that relates to a concrete action or omission as a claim. Unlike a declaratory application, it does not merely seek the determination of a legal relationship, but rather demands the actual realization of a claim. Applications for performance are particularly relevant within the context of judicial proceedings and administrative application procedures.
Distinction from other types of applications
- Declaratory application: Aims at the determination of a legal relationship.
- Constitutive application: Seeks a change to an existing legal relationship.
- Application for performance: Requests a specific performance (action, toleration, or omission).
Statutory basis
Code of Civil Procedure (ZPO)
In the context of civil procedure, the application for performance is governed by § 253 (2) no. 2 ZPO. Accordingly, the statement of claim must clearly state the plaintiff’s request, i.e., the application for performance, as well as the reason and the requested scope. The precise content of the application simultaneously determines the subject of dispute and is decisive for the binding effect of the court in its decision (§ 308 (1) ZPO).
Code of Administrative Court Procedure (VwGO)
In administrative proceedings, the application for performance is referred to as an application for a commitment under § 42 (1) VwGO if the application seeks to compel an authority to issue an administrative act or provide another form of performance.
Social Court Act (SGG)
In social court proceedings, § 54 SGG regulates the lodging of an action for a social benefit, which particularly includes the application for performance. Here, a distinction must be made between the obligated authority and the entitled person.
Requirements and substantive design
Specificity of the application for performance
For an application for performance to be effective, it must be formulated in accordance with the principle of specificity so that the court or authority can clearly recognize which specific action, omission, or toleration is being sought. Specificity serves procedural economy and legal certainty for all parties involved.
Examples of applications for performance
- Payment of a specified sum of money
- Surrender of a particular movable item
- Performance or omission of an act by an authority
Binding effect
In principle, the court is bound by the filed application for performance. A decision may not go beyond the application (“ne ultra petita”). The wording and adjustment of the application during the proceedings are permissible in accordance with the relevant procedural rules.
Procedural aspects
Position and admissibility of the application for performance
In judicial proceedings, the admissibility of the application for performance depends on several prerequisites. These include the capacity to sue, the need for legal protection, the existence of an interest in legal protection, and the admissibility of judicial protection.
Procedural particularities
- Applications for performance, intermediate, and principal applications: In more complex proceedings, applications for performance may also be made as intermediate or auxiliary applications.
- Resolution of the principal matter: If the application for performance has been fully fulfilled by the opposing party, a declaration of resolution may be made.
Standard of review of the court
Within the framework of the application, the court reviews the factual and legal prerequisites for the requested performance. The judicial authority to decide is limited to the application made.
Special manifestations of the application for performance
Interim legal protection: preliminary application for performance
In provisional legal protection proceedings, an application for performance may also be combined with urgency, for example, by applying for a preliminary injunction or for the issuance of an interim order. Here, provisional arrangements are made, particularly to protect existential interests.
Social law applications for performance
In social law, applying for social law benefits from authorities (e.g., benefits under SGB II or SGB XII) is a key prerequisite for entitlement to such claims. The application for performance determines the commencement, scope, and type of review or approval.
Application for performance in connection with substantive claims
The application for performance generally presupposes the existence of a substantive claim, which may arise from a contract, statute, or a public law relationship. For successful assertion in the context of an application for performance, all prerequisites for the claim must be set out and, where necessary, proven.
Legal consequences and enforcement of the application for performance
If the application for performance is granted, the respondent is legally obligated to provide the requested performance. In the event of non-fulfillment, enforcement may be initiated, depending on the nature of the enforceable title and the relevant procedural rules.
Summary
The application for performance is a central procedural basis for the enforcement of civil, administrative, and social law claims. It determines the subject and scope of judicial review, regulates both the prerequisites and legal consequences of enforcing claims, and is subject to specific substantive, procedural, and formal requirements. A properly submitted application for performance is therefore an essential element of legal protection and the pursuit of claims before courts and authorities under German law.
Frequently asked questions
Which documents are mandatory to submit with an application for performance?
When applying for benefits, for example in social law or insurance law, the submission of various proofs and documents is mandatory in order to process the application in accordance with the law. The documents regularly required include a completed and signed application form and official identification documents such as identity card or passport for identification purposes. Depending on the specific type of benefit, additional evidence may be required—for example, proof of income (e.g., pay slips, pension notices), available assets (bank statements, savings book copies), and evidence of living arrangements (rental agreement, utility bills). In the case of health-related or work-related benefits, medical reports, certificates, attestations from specialists, or workplace confirmations may be demanded. If other family members or dependents are mentioned in the application, supporting documents such as birth certificates, marriage certificates, or custody decisions must be attached. Furthermore, the authority may request additional, case-related documents for further clarification as per § 60 SGB I. The complete and correct submission of all documents is of binding legal significance for ensuring the verification of entitlement and compliance with deadlines.
What are the consequences of failing to comply with the duty to cooperate in an application for performance?
German law, especially in social law under the SGB, imposes a comprehensive duty to cooperate on applicants (§§ 60 ff. SGB I). If applicants fail to comply with this duty—such as by not providing, incompletely providing, or submitting necessary documents late, or by refusing to provide information—this can have significant legal consequences. According to §§ 66, 67 SGB I, the authority is entitled to set applicants a reasonable deadline to fulfill the necessary cooperation. If this request is still not complied with, the authority may deny or withdraw the requested benefit, in whole or in part. There is then no legal claim to benefits as long as the cooperation necessary for clarification of the facts has not been provided. Legal remedies such as an objection or lawsuit may be filed, but have little prospect of success without the required cooperation. Only in exceptional cases, for example where cooperation is unreasonable for factual or legal reasons, does this obligation lapse in accordance with § 65 SGB I.
Which deadlines must be observed when submitting an application?
Various deadlines of considerable legal importance must be observed when submitting an application. In principle, under German law governing claims for benefits, a claim does not arise retroactively for periods prior to application (application principle, e.g., § 37 SGB II). The application thus confers a so-called substantive legal protection, so benefits are granted only from the month of application. In addition, different types of benefits are subject to legally regulated application deadlines, for instance for maternity benefits, parental allowance, or unemployment benefit I (at the latest three months before the end of employment under § 38 SGB III). If the deadline is missed, applicants risk temporary or permanent loss of entitlement for previous periods. The authority is obligated to inform applicants of existing deadlines and the need for timely application. Exceptions are only permitted in explicitly regulated cases of hardship (e.g., retroactive application in the case of unintentional failure to meet the deadline).
What happens if circumstances change after an application is submitted?
Legal provisions such as § 60 (1) no. 2 SGB I require applicants to immediately notify the relevant authority of any changes in circumstances that are significant for the provision of benefits. These include, for example, changes in income, changes in household composition (birth, divorce, relocation), health improvements or deteriorations, and changes in assets. Failure to report such changes constitutes a breach of the ongoing duty to cooperate. This may result in the retrospective recovery of overpaid benefits, fines, or even criminal consequences (benefit fraud under § 263 StGB). The authority may at its discretion adjust, wholly or partially revoke the benefit. The principle of material justice and the protection of social insurance carriers or insurers thus require immediate and full notification of any new relevant circumstances.
What legal remedies are available if an application for performance is rejected?
If an application for performance is rejected by the competent authority, the applicant has the right to lodge a formal objection, provided the administrative procedure applies (e.g., §§ 83 ff. SGG). The objection is usually to be submitted in writing to the competent authority within one month of receipt of the rejection notice. After an unsuccessful objection, the person concerned may file a lawsuit with the competent social court. The lawsuit must likewise be filed with the court within one month of notification of the objection decision. Special regulations apply to certain types of benefits, such as under the Administrative Procedure Act (VwVfG) or insurance law, which may provide for different legal avenues or deadlines. In principle, there is no suspensive effect during the remedies procedure, unless this is expressly provided by the authority or court. Interim legal protection by way of a preliminary injunction is possible if special urgency is demonstrated (§ 86b SGG).
Is an application for performance legally binding and permissible if submitted digitally?
Due to ongoing digitization in the public sector, applications for performance are now also legally permissible in many authorities in accordance with Art. 20 (3) of the Basic Law, § 36a SGB I and relevant federal and state e-government laws. A digitally submitted application is legally binding if the identity of the applicant can be clearly established. This may be achieved via qualified electronic signatures, user accounts with secure authentication (e.g., BundID, eID), or by transmission via electronically certified communication channels (e.g., DE-Mail, beBPo). The authority is obligated to treat electronic applications with the same effectiveness as paper forms, but must provide suitable secure transmission channels. What matters is the receipt of the electronic application by the competent office, including the effect of meeting a deadline. If there is doubt about the identity or authenticity of the application, the authority may require proof or supplementary submission in paper form.
