Concept of declaratory effect
Die Declaratory Effect is a central concept in German law and refers to the binding effect that a judicial, administrative, or otherwise formal determination has regarding a specific legal question or fact. This effect is particularly relevant in connection with administrative acts, court judgments, as well as certain public documents and notices. Through the declaratory effect, the contents established in the determination are considered clarified for subsequent proceedings, parties, or authorities, so that a renewed review, challenge, or divergent decision is only possible under strict conditions.
Legal basis and significance
General principles
The declaratory effect is not conclusively defined by statute, but can be derived from various provisions, particularly the Code of Administrative Court Procedure (VwGO), the Social Court Act (SGG), the Code of Civil Procedure (ZPO), as well as special statutory regulations. In a broader sense, it results from the principles of legal certainty and procedural economy, as it is intended to prevent the same legal question or identical facts from having to be reviewed multiple times.
Distinction from other effects
The declaratory effect is especially to be distinguished from the terms Binding effect, Constitutive effect as well as Formative effect While the binding effect often describes a broader obligation for other authorities and courts, the declaratory effect primarily concerns the information contained in the decision regarding certain facts or legal relationships. The formative effect, in contrast, means the immediate alteration of a legal relationship through a decision.
Forms of declaratory effect
Declaratory judgment
The declaratory judgment is provided for by law in civil proceedings (see § 256 ZPO) and in administrative proceedings, and establishes whether a certain legal relationship exists or does not exist. The declaratory effect of the judgment arises from its res judicata effect (§ 322 ZPO), through which the established legal question is, in principle, bindingly clarified between the parties.
Declaratory notice in administrative law
In administrative law, the declaratory notice is an administrative act by which an authority determines the existence or non-existence of a specific right or legal relationship (§ 35 VwVfG). Such determined points are also binding for subsequent administrative acts or appeal proceedings, as long as they are not revoked or otherwise modified. Typical examples include disability cards or status notices.
Declaratory effect in social law
Social law recognizes a particularly pronounced declaratory effect, for example in connection with the determination of the degree of disability (§ 69 SGB IX) or in pension notices. The facts or relationships thus established are, in principle, binding for subsequent decisions of other social benefit authorities, unless new facts come to light.
Public documents
Public documents also have typical declaratory effects. The evidentiary value of public documents concerning actual events is regulated, for example, in § 418 ZPO. It also applies that certain legal or factual relationships, by virtue of formal determination, are considered clarified until the contrary is proven.
Legal consequences of the declaratory effect
Binding effect for authorities and courts
The declaratory effect generally leads to other authorities, courts, or parties being bound by the respective established circumstances. This can in particular have follow-on effects for parallel or subsequent proceedings. A renewed taking of evidence or independent legal assessment is then often excluded.
Exclusion of renewed review
If a fact, legal relationship, or status is finally established, a repeated review is typically no longer possible (principle of res judicata). An exception only applies when new facts, changes in law, or the successful pursuit of a reopening procedure occur.
Res judicata and finality
The declaratory effect is inseparably linked to the concepts of res judicata and finality. A declaratory notice or judgment only takes full effect once it has become legally final, i.e., can no longer be challenged by permissible legal remedies. At that point, the binding determination is decisive for all future proceedings.
Limits and exceptions to the declaratory effect
Incorrect or unlawful determinations
Despite the declaratory effect, it remains possible to overturn a determination arising from legal errors by means of appeal or reopening. Especially when obtained by deception, coercion, or in light of new facts, previous determinations can be revoked or corrected.
Lack of binding effect for other proceedings
Not every determination automatically produces a declaratory effect for everyone. Sometimes, established facts or relationships are only binding among the parties and not for third parties or other authorities (e.g., in purely civil proceedings). In criminal or disciplinary proceedings, separate reviews may be necessary.
Practical relevance and examples
Administrative proceedings
In administrative proceedings, the declaratory effect is often the basis for enforcing procedural rights or for excluding repeated reviews. Example: The determination of disability status through a declaratory notice means that this determination must be referenced in subsequent allocation procedures or when applying for compensatory benefits.
Social benefits
In social law, the principle of substantive declaratory effect requires, for example, that a decision regarding reduced earning capacity or the degree of disability is binding for all related follow-on claims and proceedings, unless there are fundamental changes or new facts arise.
Public registers
In registry law, for example regarding entries in the commercial register or land register, a declaratory effect likewise exists: the registered facts are considered binding until formal correction.
Summary
The declaratory effect is a fundamental principle of the German legal system, guaranteeing legal certainty, procedural economy, and effective legal protection for those involved. Its exact scope, binding effect, and exceptions depend on the specific statutory provisions and the particular legal field concerned. The declaratory effect is of considerable practical importance particularly in administrative law, social law, procedural law, and special areas such as registry law. It ensures that legal or factual relationships are not constantly re-examined and reassessed, but are considered settled by virtue of a formal decision.
Frequently Asked Questions
When does the declaratory effect in administrative proceedings bind other authorities?
The declaratory effect of an administrative act means that the determined facts or a specific legal relationship, as established by the administrative act, are binding on other authorities unless otherwise expressly provided by law. This binding effect arises in particular when the result of the determination is a preliminary issue for another administrative procedure or a later administrative decision. The determination then has a constitutive effect, so that the other authority is generally not permitted to independently reassess the determined facts. This serves procedural economy and the avoidance of conflicting administrative decisions. Exceptions apply where special statutory regulations permit or require a renewed independent review by the subsequent or other authority. Examples can be found in social security law or immigration law. However, what is decisive is always the exact content of the determining administrative act and the relevant specialist laws.
Can the declaratory effect be eliminated by an objection or an action?
If an objection or a lawsuit is filed in due time against the determining administrative act, its declaratory effect basically does not take effect initially. As long as the legal remedy procedure is ongoing, the administrative act is not yet final and unchallengeable. However, the declaratory effect requires the formal and substantive finality of the administrative act. Before finality occurs, its binding effect is thus suspended. Only after the conclusion of the objection or lawsuit procedure and upon finality does the determination unfold its full legal effect for other parties and authorities. In the event of a suspensive effect, the suspensive legal remedies maintain their suspension of the declaratory effect until a final decision is rendered on the legal remedy.
How does the declaratory effect relate to the res judicata effect of a judgment?
The declaratory effect of an administrative act is to be distinguished from the res judicata effect of a court judgment. The declaratory effect refers only to the internal binding force within the administration and, where appropriate, for parties in administrative proceedings. The res judicata effect of a judgment, on the other hand, establishes comprehensive binding force both for the parties and for all courts and administrative authorities regarding the same facts. However, a final declaratory notice may have a preliminary effect for court proceedings insofar as the court, pursuant to § 121 VwGO and similar provisions, refers to or treats the administrative determinations as precedent. Ultimately, though, the legal evaluation and assessment remain within the court’s own power of decision.
What is the effect of an incorrect determination with regard to the declaratory effect?
If a declaratory administrative act is incorrect, it nevertheless generally initially produces a declaratory effect unless it is void or has been successfully appealed. A mere legal error does not prevent the binding effect as long as the administrative act is final. The erroneousness can only be challenged by filing legal remedies (objection, action) and, if necessary, be corrected in legal remedy or reopening proceedings pursuant to § 51 VwVfG. However, if the defects are so serious as to lead to nullity under § 44 VwVfG, then there is no legal declaratory effect from the outset.
What is the temporal scope of the declaratory effect?
The temporal scope of the declaratory effect is determined by the content of the declaratory administrative act. In principle, the administrative act takes effect from its notification and after it becomes final. It creates a binding force for the determined period or for the determined legal relationship as long as no amendment or revocation of the administrative act occurs. If subsequently changed facts or a changed legal situation arise, the binding effect can be eliminated through modification procedures (e.g., amendment, revocation, reassessment under §§ 48, 49 VwVfG) or by a new administrative act. The declaratory effect therefore ends when the determined facts are legally superseded for the future.
Are there exceptions where the declaratory effect does not apply?
Yes, the legislator can expressly exclude or restrict the declaratory effect of an administrative act by specific provisions. This can, for example, be stipulated in special laws that expressly permit a renewed independent review or a divergent assessment of the preliminary issue. There is also no declaratory effect for parties to whom the administrative act does not apply, for example in the case of a lack of notification or lack of party status pursuant to § 12 VwVfG. Furthermore, the declaratory effect ceases in the event of nullity of the administrative act or obvious invalidity of the entire administrative procedure. In such cases, independent assessment remains possible for other authorities or bodies.
