Concept and legal classification of discretionary selection
Discretionary selection is a central element of German administrative law. It is a form of administrative decision-making freedom, granted to an authority by law, when it can choose between several courses of action in its decision-making process. Discretionary selection is differentiated from what is known as discretion to act (Entschließungsermessen) and represents an important manifestation of state decision-making autonomy.
Distinction: Discretionary selection and discretion to act
Discretion to act
Discretion to act refers to an authority’s decision as to whether it will take action at all or adopt a measure. Thus, it concerns the ‘whether’ of action.
Discretionary selection
Discretionary selection, by contrast, regulates the ‘how’ of administrative action, once it has been established that intervention will occur and several legally permissible measures are available for selection. The authority is free in its choice in that it may select a particular measure, provided the law permits it accordingly.
Legal basis for discretionary selection
The possibility for administrative action based on discretionary selection is found in numerous statutes. It is often indicated with terms such as ‘may’, ‘is permitted’, or ‘is authorized’. Significant regulations include, for example, § 40 of the Administrative Procedure Act (VwVfG) as well as numerous special laws, such as in police and regulatory law, immigration law, and building law.
Manifestations of discretionary selection
Specific and indeterminate scope of discretion
Discretionary selection varies, depending on statutory provisions, with regard to the extent of discretion granted. This ranges from broad freedom of action (‘principle of opportunity’) to a greatly restricted selection due to legislative or normative requirements.
Examples of discretionary selection
Typical examples include:
- Selection of various police measures under police and regulatory law,
- Selection between building code measures in building law,
- Decision regarding the type of residence permits in immigration law.
Limits and constraints of discretionary selection
Binding effect of discretion and reduction of discretion to zero
The exercise of discretionary selection is subject to legal constraints:
- Statutory restrictions: The authority may not act arbitrarily, but must observe the legal framework and take all material factors into account, such as the principle of proportionality and the principle of equal treatment.
- Errors in the exercise of discretion: Incorrect decisions may occur through exceeding, falling short of, or misuse of discretion.
- Reduction of discretion to zero: In exceptional cases, discretion may effectively be reduced to zero, so the authority is left with only a single legally permissible action.
Discretion and fundamental rights
When exercising discretionary selection, the authority is obliged to observe and balance fundamental rights protection areas and state duties to protect.
Legal remedies and review of discretionary selection
Judicial review in administrative courts
The authority’s decision in the exercise of discretionary selection is only subject to limited judicial review (§ 114 Administrative Court Rules—VwGO). The court merely reviews whether the authority recognized the scope of discretion and exercised it without error. The court does not review the substantive expediency of the decision.
Types of errors in the exercise of discretion
Errors in the exercise of discretion render the decision unlawful and are categorized as follows:
- Failure to exercise discretion: Discretion was not exercised (‘failure to exercise discretion’).
- Exceeding the bounds of discretion: The authority exceeded the statutory limits.
- Improper use of discretion: The decision is based on irrelevant considerations.
Discretionary selection as opposed to bound decisions
Discretionary selection stands in contrast to bound administration, in which the law grants no decision-making alternatives and the administration must act when certain statutory prerequisites are met (‘must’ provisions).
Significance and function of discretionary selection
Discretionary selection serves to balance the necessary flexibility of administrative action and the rule of law’s requirement that public authority be bound by law. It allows for an appropriate and case-specific decision, taking into account the circumstances of the individual case.
Summary
Discretionary selection refers to the administrative right to choose among several legally permissible actions. Its limits are determined by law, fundamental rights, and rule-of-law control mechanisms. The legal structure and review of discretionary selection ensure that administrative action is both flexible and bound by law, and that any errors in the exercise of discretion can be challenged. Discretionary selection is thus a fundamental component of the rule-of-law administration and an essential subject of judicial review in administrative courts.
Frequently Asked Questions
What legal limits must be observed when exercising discretionary selection?
Discretionary selection is a right of administrative decision, but it is nonetheless legally bound. The administration may not exercise discretionary selection as it pleases, but must comply with statutory requirements and fundamental rights of the affected parties. Restrictions arise in particular from the principle of proportionality, the principle of equal treatment, and the prohibition of arbitrariness (Art. 3 Basic Law). A flawed exercise of discretion exists, for example, if the authority relies on irrelevant considerations (abuse of discretion), fails to exercise any discretion at all (failure to exercise discretion), or exceeds or falls short of the legally conferred discretion (exceeding or falling short of discretion). In addition, rule-of-law principles such as legitimate expectations and adherence to the requirement of certainty must be observed.
How does discretionary selection affect judicial review?
Judicial review of a decision involving discretionary selection is limited to what are known as errors in the exercise of discretion. This means that the court may not substitute its own decision for that of the authority’s discretion. It reviews only whether the administration has exercised its discretion properly. In doing so, the court pays particular attention to failure to exercise discretion, exceeding or falling short of discretion, and abuse of discretion. If such an error is present, the court can overturn the decision, but as a rule may not select itself; rather, it refers the matter back to the authority (§ 114 VwGO).
What are the requirements for providing reasons in a discretionary selection decision?
According to § 39 (1) VwVfG, the legislator generally stipulates a duty to provide understandable reasons for discretionary decisions. The authority must explain which selection criteria it used in its decision and how it weighed them in the specific case. The reasoning must show that all material factors have been taken into account and the interests of the parties involved have been duly balanced. If an adequate rationale is missing, the discretionary selection decision may be rendered unlawful.
In which typical administrative procedures does discretionary selection frequently occur?
Discretionary selection is often part of procurement, funding, or selection procedures, in which several applicants are eligible for an award or benefit, but the statutory requirements do not differentiate further among them. Typical cases include the awarding of contracts or concessions under procurement law, granting of research funds, allocation of university places, selection among competitors for appointments in public service, or in immigration law when several applicants require selection. It also arises in police and regulatory law, such as in police action against different disturbers (disturber discretionary selection).
What is the difference between discretion to act (Entschließungsermessen) and discretionary selection?
While the discretion to act allows the authority to decide whether to take action at all (whether), discretionary selection concerns the decision as to how and against whom it will act (how and against whom). When exercising discretionary selection, the authority thus chooses among several possible measures, means, or addressees the one most appropriate. In many cases, both spheres of discretion exist side by side, but they can also be exercised erroneously independently of each other. For judicial review and requirements for reasoning, a clear distinction between both types of discretion is required.
How does adherence to administrative regulations affect discretionary selection?
Administrative regulations often provide specifics for the exercise of administrative discretionary selection, for example through stipulations regarding selection criteria or the selection procedure (so-called steering of discretion). If the administration thereby voluntarily binds itself, claims to equal treatment by third parties may arise, provided the administration regularly acts according to these internal rules. Deviations from these regulations are justified only where special circumstances exist in an individual case; otherwise, such deviation can be seen as an error in the exercise of discretion. Nevertheless, administrative regulations do not have direct external effect, but primarily bind only the authority itself; however, violations may result in legal protection under the principle of equal treatment and protection of legitimate expectations.
Can discretionary selection decisions be restricted by discretion guidelines (Ermessensdirektiven)?
Yes, discretionary selection can be restricted or even reduced to zero by statutory or sub-statutory discretion guidelines. Such guidelines arise from special statutory provisions, case law interpretations, or binding administrative regulations. If the law stipulates that discretion exists only when certain criteria are met, this is known as ‘reduction of discretion to zero.’ In this case, the administration retains no margin for decision and a right to selection or benefit arises. The authority must choose the beneficiary; otherwise, it acts with a flawed exercise of discretion.
