Code of Administrative Court Procedure (VwGO)
Die Code of Administrative Court Procedure (VwGO) is the central procedural code for the judicial review of administrative actions in Germany. It governs the procedures before the administrative courts and thus forms the foundation of German administrative procedural law. The VwGO entered into force on January 1, 1960, and ensures both the legal protection of citizens against public administration and the safeguarding of the lawfulness of state action.
Development and significance of the Code of Administrative Court Procedure
Historical development
Administrative procedural law has a long history of development. Precursors to the VwGO included various state regulations as well as the Prussian Administrative Court Act of 1875. The separation of powers introduced with the entry into force of the Basic Law in 1949 and the right to effective legal protection before courts (Article 19(4) GG) made the nationwide unification of the administrative process necessary. The VwGO was introduced as a federal law in 1960 and has been amended several times since.
Position within the German legal system
The VwGO is a federal law and is therefore binding on the administrative courts of all federal states. It ranks as a formal federal law and is supplemented by additional procedural provisions from other laws (General Administrative Procedures Act – VwVfG, Administrative Service of Documents Act – VwZG, Federal Disciplinary Act, etc.).
Structure and systematics of the Code of Administrative Court Procedure
General structure
The VwGO is divided into ten parts, which comprehensively regulate administrative procedural law:
- Jurisdiction (§§ 1-21 VwGO)
- Procedures before the administrative courts (§§ 30-130b VwGO)
- Remedies (§§ 124-152 VwGO)
- Costs and enforcement (§§ 154-173 VwGO)
- Final and transitional provisions (§§ 174-195 VwGO)
Supplementary provisions
The appendix to the VwGO contains implementing and transitional provisions, such as regulations on entry into force and the relationship to other codes of procedure.
Scope of application
Personal and subject-matter scope
The VwGO governs public law disputes of a non-constitutional nature between citizens and public administration (state, Länder, municipalities, and other public law entities). It is applied unless there are special assignments to other branches of courts (e.g., social or financial courts).
Special administrative legal route
§ 40 VwGO stipulates the so-called “general administrative legal route.” If there is no special statutory assignment, the administrative courts have jurisdiction when there is a public law dispute of a non-constitutional nature.
The administrative judiciary
Structure of the courts
The administrative judiciary is organized in three levels:
- Administrative courts as courts of first instance (§ 45 VwGO)
- Higher administrative courts (in some states: Administrative Court of Appeal) as courts of appeal (§ 48 VwGO)
- Federal Administrative Court as court of last instance (§ 49 VwGO)
Each level has its own jurisdictions and procedural types, regulated by the VwGO.
Composition and organization
The courts are composed of professional judges and lay judges (§ 15 VwGO) and generally decide in chambers or panels.
Proceedings before the administrative courts
Types of actions
The VwGO distinguishes between several types of actions:
- Action for annulment (§ 42 I VwGO): Against an onerous administrative act (e.g., order, notice).
- Action for performance (§ 42 I VwGO): Compelling the authority to issue an administrative act.
- Action for a declaratory judgment regarding an act which has become moot (§ 113 I 4 VwGO): Declaration of illegality of an administrative act which is no longer in force.
- General action for performance (§ 43 II VwGO): For other obligations of performance by the authority.
- Action for a declaratory judgment (§ 43 I VwGO): Declaration of the existence or non-existence of a legal relationship.
Participants in the proceedings
Participants in administrative court proceedings are plaintiffs, defendants (mostly authorities), third parties joined in the proceedings (§ 65 VwGO), and in special cases also other third parties.
Procedural principles
The VwGO contains specific procedural principles such as the principle of investigation (§ 86 VwGO), the principle of free evaluation of evidence (§ 108 VwGO), the principle of orality as well as the principle of public proceedings (§ 55 VwGO).
Remedies and legal recourse
Overview
The VwGO regulates various legal remedies:
- Appeal (§§ 124-130 VwGO): Against judgments of the administrative courts to the Higher Administrative Court.
- Revision (§§ 132-144 VwGO): Against judgments of the Higher Administrative Court to the Federal Administrative Court.
- Complaint: Against various judicial decisions, for example in preliminary legal protection proceedings or on fundamental questions.
Significance of leave to appeal
In some cases, legal remedies require special leave (e.g., leave to appeal, §§ 124a ff. VwGO).
Costs, enforcement, and legal protection
Regulations on costs
Court fees and other costs of court proceedings are governed by the rules of the VwGO, as well as supplementary provisions such as the Court Fees Act (GKG) and the Lawyers’ Remuneration Act (RVG). The consequences for costs are determined in most cases by § 154 VwGO: the unsuccessful party bears the costs of the proceedings.
Interim legal protection
§ 80 VwGO and § 123 VwGO allow for interim orders and measures to provide legal protection before the final conclusion of the proceedings. This is particularly important in urgent proceedings against enforcement measures by the administration.
Relationship to other laws
Interfaces
The VwGO is systematically connected to other procedural laws. It is supplemented, but also restricted, by special laws such as the Social Court Act (SGG), the Fiscal Court Code (FGO) or, in individual cases, the Basic Law.
Regulatory gaps and supplements
In cases where the VwGO contains no express regulation, the provisions of the Code of Civil Procedure are applied mutatis mutandis (§ 173 VwGO).
Reforms and current developments
Adaptations to digitalization
Recently, numerous procedural rules have been amended in view of digitalization – for example, electronic case files and the possibility of electronic inspection of files are being continuously expanded.
Reforms in procedural law
The aim of ongoing legislative changes is to adapt the VwGO to new social, technical and legal challenges and to improve effective legal protection in accordance with Art. 19 (4) GG.
Summary
The Code of Administrative Court Procedure (VwGO) is the fundamental law for administrative judicial review in Germany. It governs appeal procedures before the administrative courts, provides those seeking justice with effective legal protection against government action, and makes a key contribution to ensuring the lawfulness of public administration. Due to ongoing modifications, the VwGO remains a central body of rules in public law and guarantees fair, transparent and effective administrative procedure.
Frequently Asked Questions
What is the significance of the time limit for filing an action in the Code of Administrative Court Procedure (VwGO)?
The time limit for filing an action is a central element of the legal protection system under the Code of Administrative Court Procedure (VwGO). It determines the period within which an action can be filed after notification of an administrative act. According to § 74 (1) sentence 1 VwGO, the basic time limit for filing an action is one month from service of the onerous administrative act, provided a proper instruction on legal remedies was given. If no instruction or an incorrect instruction was given, the period extends to one year. Compliance with the time limit for filing an action is a mandatory admissibility requirement for the action. If it is not observed, the court may reject the action as inadmissible. However, in exceptional cases, restoration to the previous state (§ 60 VwGO) or other measures to meet deadlines are possible, for example if the plaintiff was prevented from complying with the deadline through no fault of his own.
What types of actions are recognized under the Code of Administrative Court Procedure?
VwGO essentially distinguishes between the action for annulment (§ 42 para. 1 alt. 1 VwGO), by which a burdensome administrative act is challenged, the action for performance (§ 42 para. 1 alt. 2 VwGO), by which the issuance of a refused or omitted favorable administrative act is sought, and the general performance action, which is relevant when it concerns some other performance by the authority, namely acts in fact or other administrative activities. In addition, there are the declaratory action (§ 43 VwGO), the continuation declaratory action (§ 113 para. 1 sentence 4 VwGO), as well as special types of actions such as the action for judicial review of statutes (§ 47 VwGO). Choosing the correct type and route of action is essential for successful legal protection and must be aligned with the desired legal protection objectives in each case.
What is the purpose of preliminary proceedings (objection proceedings) under the VwGO?
The preliminary proceedings (also objection proceedings, § 68 ff. VwGO) serve as either a mandatory or optional stage before an action can be filed. The purpose of the objection proceedings is to give the originating authority or the objection authority the opportunity to review and, if necessary, correct their decision in terms of legality and expediency before judicial proceedings become necessary. Preliminary proceedings must generally be carried out in the case of onerous administrative acts, unless statutory exceptions apply (e.g., § 68 (1) sentence 2 VwGO). The aim is to expedite legal protection, reduce the burden on the courts, and encourage administration and citizens to seek an amicable solution. The result of the objection proceedings is an objection decision, which is a prerequisite for bringing an action if the preliminary proceedings are not dispensable.
What is meant by the suspensive effect of an objection and action for annulment under the VwGO?
Pursuant to § 80 (1) VwGO, both an objection and an action for annulment against an administrative act generally have a suspensive effect. This means that the contested administrative act generally does not have legal effect, i.e., may not be enforced, until a final decision is made in the legal remedy proceedings. This suspensive effect protects the person seeking legal protection from suffering disadvantages from a possibly unlawful administrative act before the legal situation is clarified. However, there are numerous exceptions to this rule, particularly in specially regulated matters (e.g., public levies and fees, urgent orders) and if the authority orders immediate enforcement in the public interest (§ 80 (2) VwGO). In such cases, it is possible to apply to the court for restoration of the suspensive effect (§ 80 (5) VwGO).
What is the role of party capacity and capacity to litigate under the VwGO?
Party capacity (§ 61 VwGO) regulates who can be a party in administrative court proceedings. These include natural and legal persons as well as authorities and associations, provided the relevant substantive law allows for this. Capacity to litigate (§ 62 VwGO) determines who has the authority to undertake litigation steps themselves or through a representative. Legal capacity and capacity to contract are decisive. The statutory representative acts for minors or persons incapable of acting. These requirements are to be verified ex officio and are a fundamental condition for a valid litigation relationship. Deficiencies in party or litigation capacity have serious consequences for the admissibility of the entire proceedings.
When can the administrative court declare the involvement of a representative as necessary?
According to § 162 (2) sentence 2 VwGO, the administrative court may declare, even without an application, that the involvement of a representative in the preliminary proceedings was necessary. This is significant for cost reimbursement: if the assistance is declared necessary, the costs incurred must be borne by the losing opponent. This particularly applies if the administrative procedure raises complex legal or factual questions such that a knowledgeable representation would be required from the perspective of a reasonable party. The necessity is assessed by the court at its discretion and depends on the circumstances of the individual case. It is not automatic, but depends on the average legal and factual complexity of the specific case.
