Definition and Meaning of “Benehmen” in Law
The term “Benehmen” has a specific meaning in a legal context, which is distinct from its common use as “good behavior.” In German law, “Benehmen” refers to the formal involvement of various authorities in decision-making and administrative processes. The term is particularly central in administrative law and appears in numerous special statutes and administrative procedural regulations. Benehmen governs the participation of other bodies in the decision-making process and must be distinguished from other forms of participation both conceptually and substantively.
“Benehmen” in Administrative Law
Basic Structure and Function
In administrative law, “herstellen des Benehmens” describes the procedural step in which one authority involves another authority—often with specific expertise or local jurisdiction—in a decision-making or approval process. The aim is to inform the relevant party, to obtain their assessment, and to take that assessment appropriately into account during decision-making.
Benehmen is neither a mere notification nor a requirement for consent that confers veto rights; rather, in terms of intensity, it sits between a hearing and consent. The authority involved generally has the right to express an opinion; binding procedural requirements may arise from special statutory provisions.
Forms of Obtaining Benehmen
There are various degrees of procedural involvement in administrative execution:
- Hearing: An opportunity to express an opinion is provided, but such input does not have to be taken into account.
- Benehmen: The authority must give serious consideration to the statements received and include the response in its decision. “Herstellen des Benehmens” means that the responsible decision-maker objectively examines the views and objections of the authorities to be involved.
- Consent: A decision cannot be issued without the explicit approval of the participating authority.
Statutory Provisions
Some normative examples for the qualifier “in Benehmen with”:
- Town and Country Planning Law (§ 4 para. 2 BauGB): When involving neighboring municipalities, Benehmen must be established.
- Federal Immission Control Act: Decisions are often issued “in Benehmen with” other specialized authorities.
- Civil Service Law (Federal Civil Servants Act, § 106 para. 3 sentence 1 BBG): Some personnel measures require Benehmen with personnel representatives.
The requirement to “establish Benehmen” obliges the deciding authority to provide timely, complete, and truthful information and to allow a reasonable period for comments.
Legal Consequences and Legal Nature
In principle, Benehmen does not require consent: The approval of the authority to be involved is not compulsory—in contrast to “Zustimmung” (consent), where a decision is not permitted without mutual agreement. However, if the legally required establishment of Benehmen is omitted, this may constitute a procedural error in an otherwise legitimate procedure. This can make the administrative act contestable.
In practice, there is debate about the extent to which dissent between the decision-making and participating authority must be explicitly justified, and whether disregarding the opinion always leads to the illegality of the subsequent decision. Case law requires transparent examination of significant objections.
Distinction from Other Forms of Participation
The requirement to “establish Benehmen” must be distinguished from other forms of participation:
- Hearing: Lower level of involvement, mere opportunity to comment
- Participation: Umbrella term, covering Benehmen as one variant
- Consent: Highest degree of involvement and binding effect
- Agreement: Decision-making power is held jointly by several parties
Significance of Benehmen for Substantive and Procedural Justice
Ensuring Transparency and Effective Professional Involvement
The statutory requirement for Benehmen aims to promote a sound exchange of information between administrative actors and thus improve the quality of decisions. The expert knowledge and special interests of the participating authority are incorporated into the decision-making process and must be reflected in the final assessment.
Effects on Legal Protection
When challenging an administrative act, it must be assessed whether Benehmen was properly established. If legally compliant participation is lacking, this may result in the annulment or invalidity of an administrative act. Procedural law establishes special standards and requirements of proof in this context.
Practical Examples from Administrative Practice
Building and Environmental Law
When issuing zoning plans, the planning authority must regularly establish Benehmen with environmental protection agencies or neighboring municipalities in order to give proper consideration to their interests.
Municipal Law
Inter-municipal projects, such as the designation of business parks at municipal borders, require Benehmen with participants at the municipal level.
Supervisory and Personnel Measures in the Public Service
In higher-level staffing decisions or disciplinary matters, there is often a statutory requirement to establish Benehmen with staff or equality representatives.
Summary
“Herstellen des Benehmens” is a central instrument in German law for formal authority participation intended to ensure transparency, cooperation, and consideration of a wide range of interests. It is governed by clear legal standards but differs in intensity depending on its structure. Incorrect application can have significant legal consequences and highlights the importance of this legal institution in administrative practice.
Frequently Asked Questions
What legal consequences can inappropriate conduct at the workplace have?
Inappropriate conduct at the workplace—including bullying, insults, sexual harassment, or discrimination—can result in both civil and criminal consequences. Employers are obligated under the General Equal Treatment Act (AGG) to protect employees from disadvantages due to race, ethnic origin, gender, religion, belief, disability, age, or sexual identity. If an employer fails to fulfill this duty, claims for damages and compensation may arise. If an employee violates the employment contract or house rules by, for example, insults or physical assaults, this can lead to disciplinary warnings or ordinary or immediate termination of employment. In particularly serious cases, such as physical attacks or sexual coercion, criminal investigations are initiated, potentially resulting in charges, criminal proceedings, and fines or imprisonment.
Is bad behavior towards authorities a criminal offense?
Insults, verbal abuse, or even threats towards public officials such as police officers, teachers, or administrative staff are not only socially undesirable but can also be criminally relevant. According to § 185 StGB, insult is a criminal offense; particularly if committed publicly, in a meeting, or by disseminating documents, higher penalties may apply. Public officials are also given special protection under § 113 StGB (resistance against law enforcement officers) and § 115 StGB (resistance against persons treated as law enforcement officers), meaning that even targeted disrespect and verbal attacks may be considered criminal offenses.
What legal regulations apply regarding conduct on the internet (cyberbullying, hate speech)?
In the digital realm, the same laws apply as in real life, supplemented by specific regulations: insults, defamation (§ 187 StGB), slander (§ 186 StGB), or threats (§ 241 StGB) are criminal acts online as well. Abuse of human dignity, personal rights, or the right to one’s own image (§ 22 KUG) can give rise to claims for injunction, deletion, and damages. The Network Enforcement Act (NetzDG) requires platform operators to delete clearly unlawful content within short deadlines. Victims of cyberbullying can also turn to the police and file a criminal complaint. Additional labor law provisions apply in professional networks if colleagues or superiors are involved.
Are there statutory requirements for conduct on public transport?
Behavior on public transport is governed by the applicable conditions of carriage issued by transport operators and the Administrative Offenses Act (OWiG). Offenses such as loud behavior, harassing other passengers, or disregarding seat reservations can result in contractual penalties, exclusion from transport, or fines. Physical or verbal assaults are subject to criminal law and may lead to further measures such as bans and criminal charges. The driver or operational staff have the right to exclude passengers whose conduct endangers or disturbs others from transportation (§ 3 Passenger Transport Act, § 4 Railway Transport Regulations).
When does bad behavior toward children and adolescents become legally relevant?
Bad or disrespectful behavior toward minors may fall under a range of offenses: insult, coercion, threat, bodily harm, unlawful detention, or sexual abuse are classified in the Criminal Code (StGB) as particularly protected offenses, carrying severe penalties. The Juvenile Court Act (JGG) provides for graduated sanctions in the case of delinquent juveniles, but minors receive greater protection when dealing with adults. The Youth Welfare Office can implement protection measures for affected children and adolescents in cases of borderline adult behavior, including risk assessments or withdrawal of custody.
What are the legal consequences of disrespectful behavior in road traffic?
All road users are obliged to show mutual consideration under § 1 StVO. Aggressive driving, tailgating, insults, coercion (§ 240 StGB), or even dangerous bodily injury are subject to criminal penalties and fines, and often result in points in the driver’s suitability register at the Federal Motor Transport Authority, driving bans, or revocation of the driving license (§ 69 StGB). Insurers may also reduce services in the event of proven misconduct. Especially in cases of hit-and-run, threats, or bodily injury following accidents, severe penalties may be imposed.
How is disrespectful behavior in public gatherings and demonstrations legally sanctioned?
Participants in public gatherings are subject to general laws as well as specific provisions of the Assembly Act. Disorderly conduct, disturbing public peace (§ 125 StGB – breach of the peace), insults, or physical attacks against participants or security personnel are prosecuted criminally. Violations of conditions set by the assembly authority may result in fines. The police are authorized to temporarily detain or exclude disruptors from the assembly. In extreme cases, the assembly may be dissolved and criminal or administrative proceedings initiated.
