Term and Definition of the Coercive Fine
Die Coercive Fine is a term in German public law and refers to an administrative or judicial measure used to ensure the compulsory enforcement of public law obligations. It serves as a means of pressure to compel a person or legal entity to fulfill an obligation—usually an act, tolerance, or omission. The coercive fine is thus a so-called means of coercion and is directed against the will of the addressee, but without exerting immediate force.
Legal Basis
Germany
The statutory regulations governing coercive fines can be found in particular in the Administrative Procedure Act (VwVfG) as well as in the federal and state acts on administrative enforcement (VwVG). In civil procedure law, the coercive fine is provided for in §§ 888 and 890 of the Code of Civil Procedure (ZPO). There are also specific provisions regarding coercive fines in tax law (§ 329 of the Fiscal Code, AO).
Administrative Law
In administrative law, the coercive fine is one of the classic administrative enforcement measures, alongside substitute performance and direct compulsion. The relevant provisions are § 11 of the Administrative Enforcement Act (VwVG) and the corresponding regulations of the states. The coercive fine is applied to enforce administrative acts which require either a divisible or indivisible act, tolerance, or omission. The amount of the coercive fine is determined at the discretion of the competent authority and must be proportionate.
Civil Procedure Law
In civil procedure law, the coercive fine serves to enforce court orders concerning an indivisible act, tolerance, or omission (§§ 888, 890 ZPO). The imposition is made by the trial court upon application by the creditor. If the obligor fails to comply, the court may repeatedly impose coercive fines or regulatory fines (the term used in civil law), or in the case of an omission, may also order coercive detention.
Tax Law
In tax law, § 329 of the Fiscal Code provides for the coercive fine as a means of administrative enforcement if taxpayers fail to fulfil their fiscal cooperation obligations.
Purpose and Function of the Coercive Fine
The purpose of the coercive fine is not to punish the addressee but to create pressure to fulfil the respective obligation. It is a typical means of coercion or pressure in administrative enforcement and execution law. Its effect should be preventive and motivating, either through the payment of a sum of money or (in civil procedure law) by threatening further measures such as coercive detention.
Requirements for the Coercive Fine
Certain requirements must be met for a coercive fine to be imposed:
- There is an enforceable title (e.g. administrative act, court decision) that establishes an enforceable obligation.
- The obligated party has not performed the required act, tolerance, or omission.
- The coercive fine has been threatened in advance by a formal notice (warning of coercion) and with a statutory period.
- The measure must be proportionate and suitable for inducing the obligor to comply.
Procedure and Enforcement
The procedure for imposing a coercive fine usually begins with prior warning. This must explicitly inform the addressee of the possibility and amount of the coercive fine. After the deadline expires without compliance, the coercive fine is imposed and payment is demanded.
In administrative law, the coercive fine can be threatened and imposed multiple times as long as the act is not carried out. The specific amount of the coercive fine is set by law or the respective authority within given limits. Repeated fines may be imposed in the event of ongoing non-compliance.
In civil procedure law, the coercive fine (regulatory fine, coercive detention) is imposed by the court upon the creditor’s application and may also be ordered multiple times until the obligor fulfills the obligation.
Legal Consequences and Enforcement of the Coercive Fine
The imposed coercive fine is, in principle, a public law claim and can be recovered through administrative enforcement. It is credited to the budget of the enforcing authority or the judicial treasury. Payment of the fine does not constitute fulfillment of the underlying obligation; the original performance obligation remains. Fulfillment of the obligation must still be rendered subsequently; otherwise, further coercive measures may be taken.
If the coercive fine is not paid voluntarily, further enforcement measures follow, such as seizure or, in civil law, the ordering of coercive detention.
Distinction from Other Means of Coercion
The coercive fine differs from other means of administrative coercion:
- Substitute Performance: The act is carried out by a third party at the obligor’s expense.
- Direct Compulsion: Enforcement of the obligation by physical force, aids, or weapons.
- Coercive Fine/Regulatory Fine: The terms are sometimes used synonymously; sometimes, a distinction is made between coercive fine (administrative law) and regulatory fine (civil law).
Essentially, the nature of the coercive fine always lies in its coercive character as a means of pressure without direct influence on property or persons.
Legal Remedies Against the Coercive Fine
The imposition of a coercive fine can, depending on the individual case and area of law, be challenged by legal remedies. In administrative law, an objection is usually possible, followed by an action for annulment. In civil procedure, an immediate appeal may be lodged against the court order.
International Regulations
Comparable instruments of coercive fines or judicial and administrative coercive measures exist in other countries as well, although their precise design and enforcement procedures vary.
References
- Administrative Procedure Act (VwVfG)
- Administrative Enforcement Act (VwVG)
- Fiscal Code (AO), in particular § 329
- Code of Civil Procedure (ZPO), in particular §§ 888, 890
The coercive fine thus constitutes a central instrument for enforcing public law and civil law obligations, the application of which, in particular, is of a sovereign nature and must always comply with the principle of proportionality and procedural protection rights.
Frequently Asked Questions
How is the procedure for imposing a coercive fine conducted?
In a legal context, the imposition of a coercive fine follows the relevant provisions of the administrative procedure acts (e.g. §§ 13, 64 VwVG at the federal level and their state equivalents) or § 888 ZPO in civil proceedings. Initially, an administrative act or court order unambiguously requires the obligated person to carry out, tolerate, or refrain from a specific act. If this person fails to meet the obligation within the prescribed period, the authority or the competent court may first issue a warning about the coercive measure. This warning not only refers to the coercive measure itself but also states the coercive fine by name and amount. Only if, after the deadline expires, the required act is still not performed, a further notice (or court order) follows, which imposes and makes the coercive fine due for payment. The procedure does not serve to punish, but to enforce the obligation, and the authority or court always ensures that the principles of proportionality and the right to be heard are observed. A legal remedy can usually be lodged against the warning and imposition of the measure, with the specific appellate instance depending on the procedural rules.
What legal remedies are available against the imposition of a coercive fine?
Affected individuals may defend themselves against the imposition of a coercive fine using the prescribed legal remedies. In administrative law, an objection and/or appeal to the administrative court is generally permissible, with details governed by the respective administrative procedure act. In civil proceedings, especially under § 888 ZPO, an immediate appeal to the next higher court can be lodged against the imposition of the coercive fine. In the course of appellate proceedings, it is reviewed whether the coercive fine was properly threatened and imposed, whether the enforceable obligation was clear and feasible, and whether the principle of proportionality was observed. The court may suspend enforcement of the coercive fine or lift the imposition if procedural errors exist or the requirements are not met.
In which cases can a coercive fine be imposed multiple times?
A coercive fine may be imposed multiple times if the obligation continues to be unmet. The character of the coercive fine is intended to induce the obligated person to perform or refrain from a specific act. If, after imposition and payment of the initial coercive fine, the obligation is still not fulfilled, the authority or court may again threaten and impose a new coercive fine. The amount of subsequent coercive fines may be increased where this appears necessary for enforcement and proportionality is observed. However, the authority or court also has the option to apply other coercive measures (such as substitute performance or direct compulsion) at its discretion.
Are there upper limits for determining the amount of a coercive fine?
Yes, both in administrative and civil law, statutory upper limits exist for the amount of the coercive fine. For example, § 888(1) sentence 2 ZPO stipulates that a coercive fine of up to 25,000 euros may be imposed on the debtor. In administrative law, the VwVG at the federal level and state laws prescribe specific maximum rates (the usual individual fine ranges from a few hundred to a maximum of 25,000 euros). Authorities or courts are required, when determining the amount, to consider especially the seriousness and importance of the obligation, the degree of fault, as well as the financial circumstances of the affected person and the necessity for enforcement. The upper limits may not be exceeded in total, regardless of how many individual coercive measures are threatened or imposed.
Is a coercive fine refunded if the obligation is subsequently fulfilled?
No, a paid coercive fine is generally not refunded, even if the required act is subsequently performed. The coercive fine is not a criminal penalty in the proper sense but a means of pressure to secure the enforcement of the obligation. It is intended to motivate timely compliance. Payment of the coercive fine does not free the obligated party from the original obligation; this remains in place until performed or otherwise extinguished (e.g. by subsequent fulfillment or revocation of the underlying administrative act).
Can the amount of an already imposed coercive fine be subsequently reduced?
A reduction or cancellation of a coercive fine that has already become legally binding is only possible under certain conditions. Legally, this may be required if significant procedural errors are identified and legal remedies have been lodged that lead to a different legal assessment. Otherwise, a correction at the discretion level is excluded. However, the competent authority may, within the enforcement procedure, refrain from collection if extraordinary hardship (e.g., life-threatening circumstances) is credibly demonstrated and the public interest in enforcement is not unduly affected. In such exceptional cases, a detailed assessment of the individual case is necessary; as a rule, however, enforcement and collection of the legally imposed coercive fine remain standard.
