Concept and significance of authorization in administrative law
The term authorization is of central importance in administrative law and generally refers to the possibility granted to a legal subject—i.e., a natural or legal person—by public law to perform or demand certain actions. Authorizations are based on a legal empowerment that is established or recognized within the framework of state administrative actions. Authorization is fundamentally different from an obligation, as it expands the individual’s scope of action without creating a duty to act.
Legal framework of authorization
Significance in public law
An authorization within the meaning of administrative law may be based on special legal provisions (e.g., in the Building Code, Federal Immission Control Act, or Social Code) as well as on general administrative principles. It enables the authorized person to demand certain performances, tolerances, or omissions from a public authority or from other private parties, or to claim government benefits. Thus, authorization forms one of the cornerstones of the legal relationship between the citizen and the state in administrative law.
Distinction from other legal terms
In administrative law, it is particularly important to distinguish authorization from other legal terms such as claim, permission, or license:
- Claim: Describes the protected right to demand that another person perform or refrain from an act (§ 194 BGB), which in administrative law may appear as a claim for performance against the state.
- Permission/License: Represents a specific administrative act that allows an activity otherwise prohibited in an individual case.
- authorization: Is broader and encompasses all legally recognized advantages and powers, regardless of the concrete form of the official notification.
Types and forms of authorization
Subjective vs. objective authorizations
In administrative law, a distinction is made between subjective authorizations (subjective public rights) and objective authorizations :
- Subjective public right: Grants the individual an enforceable right against the administrative body.
- Objectively legal authorization: Exists in the abstract and without individual enforceability, e.g., in the case of normative powers of authorities.
Direct and indirect authorizations
A distinction also exists between direct und indirect authorizations:
- Direct authorizations: Arise directly by virtue of the law (e.g., entitlement to benefits under the Social Code).
- Indirect authorizations: Exist when an administrative act (e.g., a building permit) first concretizes the authorization.
Legal finality and revocation
Authorizations may differ with regard to their persistence:
- Limited authorizations: Are limited to a certain period from the outset.
- Unlimited authorizations: May be revoked or withdrawn if the legal requirements are met.
Authorization as an administrative act
Issuance by administrative act
Many authorizations are granted by an administrative act . Typical examples include:
- Permissions (e.g., restaurant license)
- Permits (e.g., building permit)
- Concessions
The administrative act is thus the central instrument for concretizing authorization in individual cases. It obliges the authority to provide the authorized person with the desired legal position, provided the relevant requirements are met.
Binding effect and legal protection
The granting of an authorization by administrative act unfolds final and binding effect, unless a legal remedy is lodged. This protects the legitimate expectation of the authorized person and limits the reviewability of the authority’s decision.
At the same time, legal protection is available to the authorized person if the requested authorization is refused, e.g., by means of an action for annulment or a mandatory action before the administrative court.
Requirements for the emergence of an authorization
Legal foundations
The creation and scope of an authorization in administrative law are determined by the relevant special or general legal provisions. Statutory enabling provisions and their interpretation determine who may acquire which rights under what conditions.Sample requirements:
- Fulfillment of personal or substantive eligibility prerequisites
- Compliance with formal and substantive requirements
- Absence of mandatory grounds for refusal
Administrative claim and discretion
In certain cases, the authority has discretion as to whether and how it grants an authorization. This means that not every application necessarily results in an authorization; both the statutory requirements and the exercise of discretion must be examined.
Restriction and expiration of authorizations
Revocation, withdrawal, and ancillary provisions
Authorizations may be restricted or revoked by administrative measures, particularly by:
- Revocation: Annulment of an authorization for reasons of public interest or if the requirements cease to exist.
- Withdrawal: Annulment of an unlawful authorization.
- Ancillary provisions: Through conditions, requirements, or time limitations, the content of the authorization can be structured.
Temporal and factual limitation
An authorization may end by:
- Expiry of a time limit
- Occurrence of dissolving conditions
- Achievement of a specific purpose
Authorization in specific areas of administrative law
Examples from building, police, and social law
- Building regulations law: Building permit as a prerequisite for the construction of structures.
- Police law: Authorization to carry a firearm by way of official permission.
- Social law: Authorizations to receive benefits, such as unemployment benefits, child benefit, or housing allowance.
Special aspects in economic administrative law
In economic administrative law, there are numerous special types of authorizations (e.g., business licenses, concessions), the requirements and legal consequences of which are often regulated and disputed on a case-by-case basis.
Conclusion
Die Authorization in administrative law encompasses all powers granted by public law to occupy certain legal positions or to claim administrative services. It therefore forms a fundamental component of the relationship between public authorities and citizens. Comprehensive knowledge of its emergence, structure, and termination is indispensable for understanding all specific areas of administrative law. A nuanced analysis of the requirements and limitations of individual types of authorization ensures effective legal protection and oversight of state administration.
Frequently asked questions
How is it determined whether a person is authorized under administrative law to challenge an administrative act?
In administrative law, a person must generally have so-called standing to bring a lawsuit (§ 42 para. 2 VwGO) or a legitimate interest in order to challenge an administrative act. This is determined as a rule based on special legal requirements: The person concerned must be able to claim that the challenged administrative act or its omission violates their own subjective public rights, or that such a violation at least appears possible. In the case of third-party challenges, it is also examined whether this particular person is affected in an individual interest protected by law. This can be relevant, for example, in cases involving building or environmental permits, where neighbors are only entitled to sue if the permit affects their legal positions, such as the requirement for consideration.
To what extent do authorization and power differ in administrative law?
In the context of administrative law, “authorization” is often understood as a collective term for the ability to make use of a right or advantage, whereas “power” generally describes an authority to act granted by law. Authorization typically presupposes a subjective public right that is specifically allocated to the individual, for example, the right to be granted a building permit when the statutory requirements are fulfilled. Power, on the other hand, can merely enable action and refers more to the competencies of the administration itself or to permits for performing state acts.
What is the significance of authorization for participation in administrative proceedings?
The status of participant (§ 13 VwVfG) is determined in particular by the authorization of the person: Only those who may be legally affected—that is, holders of a subjective right or legitimate interest in the subject matter of the proceedings—are considered participants in the administrative procedure. This gives rise to important rights of participation and to be heard. This includes, for example, the right to inspect files, the right to be heard, as well as the ability to lodge legal remedies. Without the corresponding authorization, participation and thus the assertion of procedural rights is excluded.
How can authorization be proven under administrative law?
Proof of authorization is generally provided by presenting appropriate documents or evidence from which the claimed subjective public right or legitimate interest arises. In approval procedures, this may be via land register extracts, usage agreements, or official notices. In proceedings contesting an act, it must be substantiated how a specific violation of one’s own rights is conceivable. The authority or court will decide, on this basis, whether the alleged authorization exists and is to be considered in the proceedings.
What effect does the absence of authorization have on legal protection in administrative law?
If a person lacks authorization—i.e., if they are unable to assert that an administrative act infringes their rights—they are generally excluded from judicial legal protection under administrative law. In particular, they lack standing, so legal action will be dismissed as inadmissible. Even prior to official decisions, the person cannot successfully assert procedural or participation rights. Thus, administrative law aims to restrict legal protection to those actually individually affected and to largely exclude popular actions.
What role does authorization play in the exercise of administrative discretion?
Authorizations are often a prerequisite for the administration to be able to exercise discretion at all. Only those who are authorized—that is, possess a statutory individual claim—may demand that the administration properly exercise its discretion. If such authorization is lacking, the administration is not obliged to issue an administrative act or consider measures. This ensures that discretionary decisions are not made for arbitrary persons or purely abstract interests.
Can legal entities or associations be authorized under administrative law?
Yes, legal entities and associations can be holders of authorizations in administrative law, provided that the relevant law expressly includes them or such inclusion is inferred from the law’s purpose and intent. For example, companies can assert their own rights in planning approval or building permit proceedings if affected by the decision. Recognized environmental associations may also be granted authorization by special statutes (such as the Environmental Legal Remedies Act) under certain circumstances, which allow them to participate in administrative procedures and file legal remedies.
