Definition and Nature of Dispensation
The Term Dispensation (Latin “dispensare” = “to allot”, “to grant”) refers in a legal context to an official or ecclesiastical exemption from an existing statutory or regulatory obligation. A dispensation thus constitutes an exception or waiver of an existing prohibition or obligation granted by a legitimate authority.
In legal scholarship, dispensation is distinguished from a general permission, as the former is individual and pertains to a specific case, without altering the general legal situation. A dispensation generally has effect only inter partes (“between the parties”), but remains an exceptional decision within the framework of a continuing provision.
Historical Development of Dispensation
Although dispensation has a long tradition in various legal systems, legal history assigns it particularly as an instrument of canon and state law. As early as the Middle Ages, dispensation was a central figure in canon law, used when special circumstances necessitated exceptions to the general ecclesiastical order. Over time, state law also adopted the institution of dispensation to avoid undue hardship in individual cases.
Fundamentals of the Legal Dispensation
Legal Definition and Distinctions
Dispensation refers to the case-specific suspension of the effectiveness of a statutory or sub-statutory provision in relation to a particular person or group, either upon application or ex officio. In contrast to a general clause or statutory amendment, the provision itself remains in force and continues to bind all other addressees.
Areas of Application
Dispensations are particularly provided for or recognized in the following areas:
- Administrative law (e.g. special permits)
- Canon law (e.g. marriage impediments, rules for religious offices)
- School law and examination law (e.g. exemption from educational obligations)
- Civil service law and professional law (e.g. exceptions to age limits)
- Civil and trade law (e.g. exceptions to (commercial) operating bans)
Requirements and Procedure
Application and Discretion
A dispensation is generally only granted upon the express application of the affected person. The competent authority or institution examines whether sufficient grounds for the exception exist. In many legal areas, the decision maker has discretion, whereby individual interests must be weighed against the public interest in maintaining the general rule.
Legal Basis and Limits
Many modern legal systems explicitly regulate the possibility and limits of dispensation by law, for example in the Administrative Procedure Act (VwVfG), examination regulations, special laws, or even state regulations. In individual cases, it must be examined whether the relevant provision permits a dispensation at all, or whether grounds for exclusion exist, such as in cases of fundamental violations of law, matters of public welfare, or when the sense and purpose of the provision would otherwise be compromised.
Dispensation decisions must also comply with the principle of equal treatment (Art. 3 Basic Law); arbitrary or irrelevant granting would be unlawful.
Dispensation in Administrative Law
Im Administrative law dispensation is particularly widespread in the form of special permits. Typical examples include exceptions to building regulations, special permits under road traffic law, or relaxations for the conduct of public events. In these cases, the authority issues an adverse administrative act with limited effect.
Special Procedural Rules
In German administrative proceedings, dispensation is regularly a beneficial administrative act, the withdrawal or revocation of which may occur only under strict conditions (§§ 48, 49 VwVfG). In particular, the dispensation must not result in a violation of higher-ranking law.
Dispensation in Canon and Religious Law
Im Canon law contains centuries-old, detailed rules on dispensation, such as for marriage impediments, exemption from fasting obligations, or dispensation from vows of religious orders. The ecclesiastical dispensation falls within the competence of specific church authorities (e.g. bishop, pope).
Dispensation in Examination and School Law
In examination and school law, a dispensation allows individual exemption from certain school or examination obligations, for example to safeguard equal opportunities in cases of health, religious, or personal reasons. The particulars are generally governed by examination regulations or educational guidelines.
Dispensation in Civil and Professional Law
In civil and professional law, a dispensation may, for example, grant exceptions from professional rules, admission requirements, or other legal obligations. The dispensation is generally granted by the competent chamber, authority, or by court decision.
Material and Formal Lawfulness
The lawfulness of a dispensation always requires that the competent body was authorized to grant the dispensation, that discretion was properly exercised, and that there are no overriding interests opposed. The decision must—in particular in public law—be adequately substantiated and documented.
Legal Consequences and Effects of Dispensation
A validly granted dispensation wholly or partially releases the addressee from legal binding to a particular provision. The dispensation—depending on the legal situation and individual case—generally only affects the relationship with the addressee and is usually limited in time and scope. It terminates either at the end of a period, when the purpose ceases, or by express revocation or withdrawal in accordance with the applicable regulations.
Termination and Review of Dispensation
A dispensation may be revoked if the underlying circumstances change or if a new statutory provision requires it. The revocation is usually carried out by the authority originally responsible, in compliance with the legal requirements. Affected persons generally have the possibility to have a dispensation or its denial reviewed by lodging an objection or bringing legal proceedings.
Distinction from Related Legal Instruments
Dispensation is to be distinguished from related instruments such as authorization, exemption, exception or permit . Although there are substantive overlaps, many legal systems differentiate in terms of requirements, legal nature, and mode of action.
International Aspects of Dispensation
In other countries and supranational organizations, dispensation is also provided for as a means of individual exception. However, the legal requirements, procedures, and restrictions can differ significantly, especially between continental European and Anglo-American legal traditions.
Literature and Further Sources
- Pieroth/Schlink/Knauff: Police and Public Order Law, [Section on Exception and Dispensation]
- Haller, Canon Law, [Chapter: Dispensation in Canon Law]
- Maurer, General Administrative Law, [Section: Discretionary Decisions in Public Law]
- Ehlers/Pünder: General Administrative Law, [Section: Administrative Discretion and Dispensation]
In summary dispensation is a central instrument of justice in individual cases, allowing legal systems to respond flexibly to exceptional individual circumstances. The legal requirements, procedures, effects, and limitations are clearly defined and serve to protect the exceptional status at the intersection of individual interests and the rule of law.
Frequently Asked Questions
What legal requirements must be met for a dispensation to be granted?
A dispensation is generally granted only if a specific statutory provision expressly provides or allows for it. The applicable requirements are usually found in special statutory provisions (e.g. administrative procedure law, school law, canon law, or civil service law). Often, an important reason or a special interest in deviating must be demonstrated, and discretion or a discretion reduced to zero may exist. In some cases, the granting of a dispensation is expressly conditional on the presence of atypical circumstances or unreasonable hardship. Furthermore, the protective interests of third parties and the public interest often have to be taken into account and weighed against the purpose of the relevant provision. The competent authority or body conducts an independent examination and may, depending on the circumstances, impose strict requirements for justification and supporting evidence. Legal basis, type and scope of dispensation, as well as any conditions or time limits, must be recorded in writing with utmost care.
In which cases is there an entitlement to a dispensation?
An entitlement to dispensation only exists if the relevant legal provision expressly provides for it and the corresponding statutory requirements are fulfilled. In most cases, dispensation is a discretionary decision by the competent authority, so an entitlement does not usually exist. Only in exceptional cases, when the authority’s discretion is reduced to zero—for example, to avoid intolerable hardship or to safeguard fundamental rights—can a subjective public entitlement to dispensation arise. The prerequisite for this is, as a rule, that all substantive and formal requirements for granting are fully met and that rejecting the application would be considered unlawful.
Who is responsible for granting a dispensation?
Responsibility for granting a dispensation is primarily determined by the relevant statutory provision. As a rule, the administrative authority, supervisory authority, or institution responsible for enforcing or implementing the legal norm from which dispensation is sought is also the competent body. In educational or ecclesiastical contexts, this can be a school supervisory authority or an appropriate ecclesiastical body; in building law, it is the building supervisory authority. The precise administrative or institutional competence should be taken from the relevant special legislation. In addition, a formal procedure often must be followed, which may provide for third parties to be heard or for other bodies to have participatory rights, depending on the subject matter.
What form requirements and documents must be observed for a dispensation application?
Form requirements and necessary documents for a dispensation application are generally prescribed by law or administrative regulations. As a rule, a written application must be submitted, containing a precise description of the facts, the reference to the regulation for which dispensation is sought, and a detailed justification for the desired deviation. Depending on the case, supporting evidence and documents must be enclosed, such as medical reports, certificates of no objection, statements from affected persons, or evidence of special circumstances. The absence of required documents may lead to the rejection or delay of the application. Furthermore, the applicant is usually required to cooperate and provide necessary explanations to the authority on request.
Can a dispensation be made subject to conditions or requirements?
Yes, a dispensation can generally be accompanied by ancillary provisions, namely conditions, requirements, time limits, or revocation clauses. The authority to do so is generally derived from administrative procedure law provisions (e.g. § 36 VwVfG) or specific statutory regulations. Imposing such conditions serves to best safeguard the protected interest underlying the provision subject to dispensation, or to mitigate any potential adverse effects arising from the exception. The statutory limits of reasonableness and proportionality must always be observed; the conditions must be suitable, necessary, and appropriate, and must not undermine the purpose of the dispensation.
What legal recourse is available against the rejection of a dispensation application?
Legal remedies against the rejection of a dispensation application are available as provided for in each individual case. In administrative matters, these usually comprise the objection (Widerspruch) and, where applicable, an action for annulment before the administrative court. The prospects of success often depend on whether there has been a discretionary error (abuse, excess, or defect of discretion) or whether the authority incorrectly assessed the factual requirements. A comprehensive legal justification and presentation of all relevant circumstances are essential for legal proceedings. Time limits for filing and substantiating legal remedies must be strictly observed.
Under what circumstances can a granted dispensation be revoked or withdrawn?
The possibility to revoke or withdraw a previously granted dispensation is determined by the general principles of administrative procedure law (in particular §§ 48, 49 VwVfG), as well as by the relevant special regulations. Revocation is possible, among other reasons, if facts subsequently become known that would have led to refusal, if the dispensation was linked to an unlawful condition, or if public interest so requires. In the case of withdrawal due to initial unlawfulness, considerations of legitimate expectation (e.g. under § 48 VwVfG) are particularly relevant. The rights of third parties, deadlines, and compensation provisions must also be considered. In any case, the authority must observe the proportionality principle and undertake a comprehensive balancing of interests.
