Concept and Definition of Enforcement Authority
Die Enforcement Authority is a central term in enforcement law and refers to the right or authorization to carry out or initiate state enforcement measures. It is an essential prerequisite for enforcing private or state claims against a debtor with the help of state agencies. The enforcement authority must be distinguished from material entitlement and litigation authority and is subject to specific statutory regulations.
Legal Basis of the Enforcement Authority
Enforcement According to the Code of Civil Procedure (ZPO)
In civil law, Sections 704 et seq. of the Code of Civil Procedure (ZPO) regulate the enforcement procedure. The Enforcement Authority is, according to Section 750 ZPO, vested in the person designated in the enforcement title (e.g., judgment, enforcement order) as plaintiff or applicant. This person is referred to as the creditor or enforcing creditor.
Special Cases of Enforcement Authority in Civil Proceedings
- Transfer of Authority: In the case of an assignment (cession) of the titled claim (Section 398 BGB), the enforcement authority passes to the new creditor. The legal successor must provide evidence of this if necessary.
- Multiple Authorized Parties: In the case of joint creditors (Section 428 BGB), each one is entitled to pursue enforcement.
- Insolvency Proceedings: Upon commencement of insolvency proceedings, enforcement authority generally passes to the insolvency administrator (Section 80 InsO).
Enforcement Authority in Public Law
In the field of public law, particularly regarding administrative acts, enforcement authority is determined by administrative enforcement law.
Federal Law and State Law
- Fiscal Code (AO): In tax law, pursuant to Section 249 AO, the tax authority is responsible for taking enforcement measures against tax debtors.
- Administrative Enforcement Laws: The administrative enforcement laws of the Federation (VwVG) and the federal states regulate which authorities may enforce under which conditions. The enforcing authority must be the holder of the respective claim or be authorized to enforce.
Special Provisions
- Administrative Assistance: Within the framework of administrative assistance, an authority may take measures on behalf of another authority. The scope of enforcement authority then arises from the respective transfer relationship and the relevant statutory provisions.
- Administrative Act with Third-party Effect: If there is an enforceable administrative act in favor of a third party, as a rule only the authority, not the beneficiary third party, has enforcement authority.
Criminal Procedure Area
In the law of enforcement of criminal judgments, enforcement authority relates to the implementation of criminal judgments. The public prosecutor’s office (Sections 451, 458 StPO), as the so-called enforcement authority, has the power to enforce court decisions.
Requirements and Scope of Enforcement Authority
Required Titles and Documents
Enforcement authority generally requires an enforceable title. This can consist of judgments, orders, enforcement orders, administrative acts, or notarial deeds with an enforcement clause. A proper enforcement clause and service of the title are additional prerequisites.
Exercise of Enforcement Authority
The person or entity holding the enforcement authority may apply for or initiate concrete enforcement measures, such as commissioning a bailiff (Section 753 ZPO), the attachment of assets, or ordering an attachment or enforcement sale.
Loss and Restriction of Enforcement Authority
- Loss by Payment: The enforcement authority lapses when the titled claim has been completely satisfied.
- Action for Provisional Legal Protection: In the case of interim orders, enforcement authority may be restricted or temporarily prohibited.
- Limitation: Upon expiration of the enforcement limitation period (Section 197 BGB, Sections 78 ff. AO), enforcement authority ceases.
Distinctions and Legal Remedies in Connection with Enforcement Authority
Distinction from Other Authorities
Enforcement authority must be distinguished from litigation authority, material entitlement (substantive law), and power of representation. A creditor may be entitled to a claim but not authorized to enforce it, for example after assignment of the claim.
Legal Remedies Against Enforcement
Debtors may raise objections to enforcement measures, such as an enforcement reminder (Section 766 ZPO) or third-party opposition proceedings (Section 771 ZPO), especially if the enforcement authority of the creditor is in doubt. In public law, legal remedies are governed by the relevant codes of administrative procedure.
Significance and Practical Examples
The correct determination of enforcement authority is of central importance in practice. If measures are taken without the necessary enforcement authority, this leads to the invalidity of the enforcement and, if applicable, claims for damages. Typical practical cases include:
- Enforcement of a claim following assignment to a new creditor
- Enforcement by an heir after inheritance
- Enforcement of public law claims by an authority after restructuring or transfer of responsibility
Summary
The enforcement authority is an essential element for the enforcement of claims by means of state coercion. It determines who is entitled to initiate enforcement measures and ensures that a claim can actually be enforced. Legal regulations ensure that enforcement may only be carried out by the genuinely entitled party. Errors in determining the enforcement authority affect not only the success of the action, but may also have far-reaching legal consequences.
Frequently Asked Questions
Who is authorized to enforce under German law?
Enforcement authority under German law is generally reserved for state agencies. These include primarily bailiffs, local courts (in enforcement against immovable property), but also the police and administrative authorities in the so-called administrative enforcement. It is crucial that the acting authority is empowered by law to apply coercion and acts within its material and local jurisdiction. Private individuals are only authorized to enforce in very limited exceptional cases as self-help (Sections 229, 859 BGB); otherwise they always depend on the assistance of state enforcement agencies.
How is it monitored whether enforcement authority exists?
Monitoring of the existence of enforcement authority occurs through strict adherence to legal provisions and their interpretation by courts. Before starting enforcement action, the authorities examine whether an enforceable title exists, whether there is jurisdiction, and whether the legal requirements are met. In case of dispute, the enforcement debtor can have the legality of the measure reviewed as part of legal protection—such as by filing legal remedies like a reminder (Section 766 ZPO) or an action to avert enforcement (Section 767 ZPO).
What role do title and clause play in exercising enforcement authority?
An enforceable title is a mandatory requirement for any act of enforcement, except for statutorily regulated exceptions. In addition, as a rule, an enforcement clause is required, with which the court certifies that the title is enforceable (Sections 724 et seq. ZPO). Only then does the title acquire the quality to form the basis for enforcement. Therefore, enforcement authority only exists if both title and clause—and usually also service of the claim to the debtor (Section 750 ZPO)—are in place.
Under what circumstances can enforcement authority lapse?
Enforcement authority may lapse if the legal requirements are no longer fulfilled. This can occur, among other situations, if the underlying title has been annulled or provisionally declared unenforceable, if the respective claim has been settled, upon lawful suspension of enforcement (Sections 775, 776 ZPO), or if it is evident that an unauthorised body is acting. Procedural violations such as the absence of the required clause or the necessary service also lead to a loss of enforcement authority for the authority or enforcement body.
Are there different enforcement authorities in civil law, criminal law, and administrative law?
Yes, enforcement authority depends on the respective area of law. In civil law, enforcement is chiefly conducted by the bailiff and the courts in accordance with the Code of Civil Procedure (ZPO). In criminal law, the public prosecutors and judicial authorities enforce fines and other measures. In administrative law, enforcement is carried out by administrative authorities under the Federal Administrative Enforcement Act (VwVG) or corresponding state laws, and the police may regularly be called upon to carry out coercive measures. The requirements and the legal recourse differ in each case and are specifically regulated.
What is the situation with enforcement authority in an international context?
In an international context, enforcement authority depends on the provisions for the recognition and enforcement of foreign titles. Jurisdiction generally remains with the state agencies of the country where enforcement is to take place. Private international law and bi- or multilateral agreements, such as the Brussels Ia Regulation or the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, govern the details and ensure that only legitimate and verified titles may be enforced by means of international administrative assistance.
Can enforcement authority be transferred or delegated?
A transfer or delegation of enforcement authority is only permitted within narrow statutory limits. Bailiffs may delegate certain tasks to assistants but remain responsible for the measure (Section 53 (2) GVGA). In administrative law, delegation within the authority or to subordinate bodies is possible if permitted by law or administrative provisions. Transfer to private individuals or third parties outside the state sector is generally excluded, as the exercise of state authority—in particular in the area of state coercion—is subject to constitutional constraints.
