Definition and Significance of the Duty of Investigation by the Administrative Authority
Die Duty of Investigation by the Administrative Authority is a central principle in German administrative procedure law. It obliges the competent authorities to comprehensively, objectively, and fully establish the facts of the case ex officio before any administrative decision is made. The duty of investigation ensures that administrative decisions are based on a secure factual foundation, thereby allowing them to be lawful and appropriate.
Legal Foundations
General Administrative Procedures Act (VwVfG)
The duty of investigation is particularly regulated by Section 24 of the Administrative Procedures Act (VwVfG). It states:
“The authority shall establish the facts ex officio. It determines the nature and scope of the investigation; it is not bound by the submissions or applications for evidence of the parties.”
Thus, the primary responsibility for a proper investigation does not lie with the parties, but with the authority itself.
Further Statutory Regulations
In addition to the VwVfG, numerous specialist statutes contain corresponding regulations regarding the duty of investigation, such as the Social Code (SGB) or the Fiscal Code (AO). The administrative procedure acts of the federal states also regularly contain corresponding provisions.
Scope of the Duty of Investigation
The administrative authority’s duty of investigation covers all investigations necessary to establish the facts relevant for the decision. This may relate to both factual and legal aspects.
Content and Extent
The investigation depends on the individual case to be decided. What is decisive is what is necessary for the facts to be significant to the decision. The content and extent of the obligation depend on the legal framework and the complexity of the particular case.
Principle of Investigation (Inquisitorial Principle)
The German administrative procedure follows the so-called inquisitorial principle (principle of investigation). This means that the authority must actively investigate ex officio; it is not limited to the submissions of the parties.
Obligations of the Parties to Cooperate
Although the authority must investigate ex officio, numerous provisions establish duties of cooperation for the parties involved (e.g., § 26 SGB X, § 93 AO). Thus, the authority may require acts of cooperation but remains obliged to investigate independently if the parties do not fulfill their duties of cooperation or only do so inadequately.
Limits of the Duty of Investigation
The administrative authority’s duty of investigation is not unlimited. Its limits are reached in particular where investigations would be obviously futile, abusive, or disproportionate. The principle of expeditiousness, derived from the procedural principle of procedural economy, may also limit the obligation to investigate.
Furthermore, the duty of investigation ceases if the facts are obvious or if the decisive facts are uncontested.
Significance in Administrative Proceedings
Guaranteeing Appropriateness and Legality
Comprehensive fact-finding in administrative proceedings is a prerequisite for error-free decisions. Violations of the duty of investigation can result in the unlawfulness of the administrative act. In the course of objection and court proceedings, it is therefore regularly reviewed whether the authority has fulfilled its investigative and clarificatory duties.
Relationship with Other Procedural Principles
The duty of investigation is closely related to other principles of administrative procedure, such as the right to be heard (§ 28 VwVfG), the principle of proportionality, and the principle of ex officio investigation.
Legal Protection in Case of Violation of the Duty of Investigation
A violation of the duty of investigation can be successfully challenged by legal remedies. Inadequate establishment of the facts constitutes a material procedural defect, which may result in the annulment of the relevant administrative act. In judicial proceedings, administrative courts are required to supplement the investigation of the facts where necessary (see § 86 Administrative Court Procedure Code – VwGO).
Examples from Administrative Practice
- Planning Permission Procedure: The authority must, among other things, fully examine the actual conditions of the building site, existing neighbor rights, public regulations, and interests.
- Granting Benefits in Social Law: When applying for social benefits, the competent authority must independently examine all facts giving rise to entitlements—such as income or personal circumstances—and conduct further investigations if necessary.
Difference from the Duty to Tell the Truth
Unlike the duty of investigation, in administrative procedures there is generally no general duty of the parties to tell the truth. Thus, the initiative for full clarification of the facts lies with the authority, even though it relies on information and cooperation from the parties involved.
International Comparison
Other administrative legal systems, such as those in Austria or Switzerland, also know comparable principles of the authority’s duty to clarify facts ex officio. The differences in particular cases relate mainly to the scope and procedural requirements.
Literature and Case Law
Numerous court decisions underline the central importance of the duty of investigation in administrative proceedings, particularly those of the Federal Administrative Court and the Higher Administrative Courts.
Summary
Die Duty of Investigation by the Administrative Authority is a fundamental pillar of German administrative procedure law. It obliges the authority to comprehensively and objectively establish the facts relevant to the decision and plays a decisive role in the legality, transparency, and verifiability of administrative decisions. Violations of this duty constitute significant procedural errors that regularly entail legal consequences.
See also:
Administrative Procedure
Principle of Ex Officio Investigation
Duty to Cooperate
Right to Be Heard
Administrative Act
Frequently Asked Questions
Does the administrative authority’s duty of investigation exist even without an express request by the affected person?
The administrative authority’s duty of investigation basically exists irrespective of whether the affected person expressly requests explanation or information. Under the relevant procedural provisions—especially the Administrative Procedures Act (VwVfG) at the federal level or the corresponding regulations of the states—the authority is obliged to investigate all essential and relevant circumstances ex officio and to inform the parties of their rights and duties in administrative proceedings. This obligation arises in particular from the principle of fair proceedings and the principle of ex officio investigation (§ 24 VwVfG). The duty of investigation is meant to ensure that no parties involved are disadvantaged due to ignorance of their rights and duties of cooperation and that the procedure is conducted correctly and transparently. The authority must provide clarification to the extent and depth required by the circumstances of each case.
How far does the duty of investigation extend regarding the cooperation obligations of the parties?
The administrative authority’s duty of investigation also extends to the cooperation duties of the parties. The authority must inform the parties in particular about the extent and manner in which they are obliged or entitled to cooperate in the administrative procedure. If documents, evidence, or certain statements are required to clarify the facts, the authority must explicitly point out the related obligations and deadlines. If such notice is omitted, this may in some cases mean that negative legal consequences, such as negligence or default, cannot be attributed to the parties. What is decisive is that the explanations are designed in accordance with the principle of good faith and the requirements of the specific case.
Is the administrative authority required to inform about legal remedies?
Within the framework of the statutory provisions, the administrative authority is obliged, in the case of an administrative act, to inform the parties about the admissible legal remedies and the deadlines to be observed (so-called instruction on rights of appeal in accordance with § 37 subsection 6 VwVfG). If proper instruction on rights of appeal is omitted, the deadline for lodging the legal remedy usually does not begin to run, or an extended deadline applies. The duty of investigation, however, not only covers information about existing legal remedies but also about possible other procedural options, to the extent that this is necessary to protect the rights of the parties and no risk to the authority’s neutrality is to be feared.
What are the consequences if the administrative authority breaches its duty of investigation?
A violation of the duty of investigation may result in significant legal consequences. For example, the authority’s decision may be contestable or even unlawful if essential procedural rights of the parties were violated. If there has been a lack or error in informing about duties to cooperate or to make statements, any resulting failure to act on the part of the parties cannot automatically count against them. In particular, in objection or court proceedings, such procedural faults are often considered curable; however, they may also result in the decision being overturned entirely or the matter being remitted for a new, proper procedure.
Does the duty of investigation also apply in mass or automated administrative procedures?
Especially in mass or automated administrative procedures (such as in tax administration or automated fine proceedings in road traffic), the administrative authority’s duty of investigation is not completely suspended, but is generally fulfilled through standardized notices and instructions on legal remedies. Nevertheless, it must also be ensured in such cases that individual particularities are recognized and taken into account. If a particular case involves exceptional circumstances, the authority is required to provide additional individual clarification.
How does the duty of investigation relate to other duties of care and cooperation of the authority?
The duty of investigation is part of the broader duty of care the authority owes to the parties involved in the procedure. It complements the general duties of impartial and objective procedural conduct as well as ensuring a constitutional administrative procedure. Therefore, the duty of investigation should not be considered in isolation but must be interpreted and applied in conjunction with the general provisions of administrative law (such as the principle of official investigation, transparency, and fairness).
Are there exceptions to the administrative authority’s duty of investigation?
The duty of investigation is not unlimited and may be restricted in certain circumstances, for example if statutory obligations of confidentiality exist or if comprehensive investigation could endanger the legitimate interests of third parties. The duty also does not apply if a professionally competent approach can be expected from the parties (for example, when represented by a Rechtsanwalt) or if the factual and legal situation is clear and there is no indication of a need for information. In urgent and expedited procedures, too, the extent of the duty of investigation may be reduced, especially if it would conflict with a prompt decision.
