Due Discretion

Mandatory Discretion

Definition and Explanation of Terms

Mandatory discretion is a central concept in German administrative law and refers to the freedom of an administrative authority to make a choice between several lawful solutions within limits set by law. Discretion must always be exercised within the framework of the law and in accordance with the principles of proportionality and equal treatment.

Legal Basis

Standardization in Administrative Procedure Law

Mandatory discretion is primarily regulated in Section 40 of the Administrative Procedure Act (VwVfG). It states: “Where the authority has discretion, it must exercise such discretion in accordance with the purpose of the authorization and within the legal limits of discretion.” Many specialized laws contain formulations that either minimize or direct discretion, such as “may”, which indicates a discretionary decision.

Function in Administrative Law

By granting discretion, the legislator enables the authority to respond appropriately to the particularities of individual cases. In doing so, it is obliged to consider all relevant circumstances as well as the purpose and intent of the legal provision.

Types of Discretion

Discretion in Decision to Act and Discretion in Selection

In administrative practice, a distinction is made between discretion in deciding whether to act (so-called ‘if-discretion’) and discretion in choosing how to act (so-called ‘how-discretion’): Discretion in the decision to act: The authority first decides whether it wants to take any action at all. Selection discretion: In the second step, it selects the appropriate measure from various possibilities.

A typical example is the use of general clauses, which give authorities the option to address a disturbance of public safety through different measures.

Restricted and Intended Discretion

In practice, discretion can be so severely restricted that in reality only one solution remains for the authority. In this case, it is referred to as ‘intended discretion.’ Reduced discretion exists in so-called bound decisions, where the law allows little or no room for decision-making.

Duties and Limits in Exercising Discretion

Principles of Mandatory Discretion

When exercising discretion, authorities are bound by various obligations: Legality of Administration: Measures must comply with higher-ranking law, in particular with the Constitution. Principle of Proportionality: Measures may only be taken if they are suitable, necessary, and appropriate. Principle of Equal Treatment: Cases of a similar nature must be treated equally (Art. 3 GG). Prohibition of Arbitrary Action: Decisions must not be based on irrelevant reasons or be arbitrary. Binding to the Purpose of the Law: Discretion must be exercised in accordance with the purpose of the respective law.

Mistakes in the exercise of discretion can make an administrative act unlawful. According to Section 114 of the Administrative Court Code (VwGO), the court examines whether the authority was aware of its discretion when making its decision and whether errors in the exercise of discretion are present. Typical errors include: Failure to Exercise Discretion: The authority has not exercised its discretion at all (“failure of discretion”). Excess of Discretion: The authority has exceeded the limits granted by the law. Misuse of Discretion: The decision is based on irrelevant considerations or fails to take relevant circumstances into account.

Control Mechanisms and Judicial Review

Review by Administrative Courts

Within the scope of an action to compel or overturn an act pursuant to § 114 VwGO, the exercise of discretion is subject to limited review by the administrative courts. They particularly examine whether the preconditions for the exercise of discretion existed and whether a discretion error is present. The court does not generally make a completely autonomous decision (“substitution of discretion”).

Scope of Judicial Review

Judicial review is limited to the lawfulness, not the expediency, of the decision. An exception applies only if discretion is reduced to zero; that is, if only one lawful decision is possible.

Relationship to Other Institutional Terms in Administrative Law

Mandatory discretion stands in contrast to strictly bound administrative conduct, in which the authority has no room for decision. In general clauses of administrative law, for example in police and regulatory law, discretionary decisions are frequently provided in order to enable flexible handling of measures.

Practical Examples of Mandatory Discretion

Building Regulations Law: The building supervisory authority may, under certain conditions, grant exemptions from regulatory provisions if these are compatible with public-law interests. Trade Law: The competent authority may prohibit a business or impose conditions if there are deficiencies.

Significance for Administrative Action and for Affected Citizens

Mandatory discretion helps to tailor administrative decisions to the individual circumstances of each case and to ensure the highest possible degree of justice through careful weighing of all relevant interests. For those affected, the requirement to exercise mandatory discretion also creates legal protection against arbitrary or inappropriate administrative decisions and opens the possibility for judicial review in cases of discretion errors.

See also:

• Administrative act
• Administrative procedure
• Principle of proportionality
• Binding to law and justice

Source reference: The explanations on mandatory discretion are based on current provisions of the Administrative Procedure Act (VwVfG), the Administrative Court Code (VwGO), as well as relevant case law and literature in the field of general administrative law.

Frequently Asked Questions

When is an authority’s mandatory discretion restricted or excluded?

An authority’s mandatory discretion is always restricted when the law expressly provides for it, for example, through bound decisions (“must”, “is to”, “has to”, etc.). In such cases, there is no room for discretion, and the authority must compulsorily apply the statutory provision. Discretion may also be restricted by fundamental rights, the general principle of equal treatment (Art. 3 GG), or special sector-specific law. The term “intended discretion” refers to cases where the law generally provides for discretionary power, but the legislator factually recognizes only a single option. Discretion is also completely excluded when the factual requirements are absent or when superior law imposes a mandatory obligation.

What limits must the authority observe when exercising mandatory discretion?

When exercising mandatory discretion, the authority must particularly observe legal limits (legal basis), the principle of proportionality, the prohibition of arbitrariness, as well as general administrative regulations and principles. The most important limits include errors in discretion (failure of discretion, excess of discretion, misuse of discretion), which are specifically regulated in § 40 VwVfG. It is not permissible to fail to exercise discretion at all (failure to exercise discretion), to exceed the scope allowed by law (excess of discretion), or to apply incorrect or irrelevant criteria when exercising discretion (misuse of discretion). Taking all relevant circumstances into account, ensuring equal treatment, and safeguarding the legitimate interests of third parties are also mandatory.

How does an administrative court review the exercise of mandatory discretion by the authority?

Judicial review of the exercise of discretion by the administrative court is legal in nature, not a review of the expediency of the decision. The court examines whether the authority had discretionary powers and whether any recognized discretion errors are present: failure to exercise discretion, excess of discretion, or misuse of discretion. A serious error exists, for example, if the decision is based on irrelevant considerations or essential circumstances are not taken into account. The court may annul the administrative decision but, as a rule, cannot make its own discretionary decision in its place (prohibition of discretion substitution, see § 114 sentence 1 VwGO).

What are the consequences of faulty exercise of mandatory discretion?

If discretion is exercised incorrectly (discretion error), the administrative act is unlawful and must generally be set aside or amended upon request. Typically, the administrative act is annulled by the court and the matter referred back to the authority for a new decision. Only in exceptional cases does the authority have to make a specific decision (so-called reduction of discretion to zero), when in rare cases only one lawful decision is possible.

Is there an obligation to give reasons for the exercise of mandatory discretion?

Yes, according to Section 39 (1) sentence 3 VwVfG, the authority must state in the reasoning of the administrative act the considerations relevant to the exercise of discretion in its decision where it may exercise discretion. The reasoning relates to the purpose of the authorization, the weighing of all relevant factors, and consideration of conflicting interests. Furthermore, it must be explained why the specific decision is suitable, necessary, and appropriate. A lack of or inadequate justification may render the administrative action unlawful.

Can legal constraints outside the specific special norm also limit mandatory discretion?

Yes, the exercise of mandatory discretion cannot be guided solely by the respective special provision. Fundamental rights (e.g. equality principle, right to free development, protection of life and health), the prohibition of excessive action (proportionality), the principle of legitimate expectations, and European or international requirements may further bind and restrict discretion. In particular, where fundamental rights are affected, discretion must be exercised so that the fundamental positions of those concerned are adequately considered and protected.

In what way can administrative regulations or guidelines influence mandatory discretion?

Administrative regulations and guidelines are internal instructions for government staff to ensure uniform application of the law and can help in exercising discretion for the most consistent decision-making possible. However, they are not legally binding on courts or external parties; no legal claim can arise from them. The authority must check in each individual case whether an atypical situation requires a deviation from the administrative regulation. In this regard, mere schematic or automated action is not permitted, as mandatory discretion would otherwise result in inadmissible binding of discretion.