Concept and Fundamentals of Enforcement Assistance
Die Enforcement Assistance is a central term in German administrative law and refers to the official act of an authority that, upon request, acts to support another authority in the enforcement of sovereign measures. It is thus a form of internal administrative cooperation and plays an essential role, especially in Germany’s federal authority structure.
The legal institution of enforcement assistance is not to be confused with general administrative assistance, although it is closely related in many respects. Enforcement assistance specifically focuses on supporting the enforcement—in other words, the actual implementation—of administrative acts or measures that an authority could not implement alone or only to a limited extent.
Legal Foundations
Constitutional Basis
Enforcement assistance finds its basis in the German Basic Law, in particular in Article 35 of the Basic Law (GG). This article regulates the duty of mutual assistance between federal and state authorities. Article 35 paragraph 1 GG codifies general administrative assistance, while Article 35 paragraph 2 GG expressly names enforcement assistance, thus enabling a differentiated view.
Statutory Design
Enforcement assistance is governed by various administrative regulations at the statutory level. The relevant provisions of the Administrative Procedure Acts (VwVfG) of the federal government and the states, for example § 5 VwVfG, are particularly important. In addition, there are area-specific legal norms, such as in police or regulatory law.
The relationship between administrative assistance and enforcement assistance is often understood to mean that administrative assistance refers to the assumption of a sovereign act by another authority for support, whereas enforcement assistance specifically concerns the enforcement of measures in which coercive measures can be applied.
Requirements and Procedure for Enforcement Assistance
Request for Enforcement Assistance
A request for enforcement assistance requires that the requesting authority is authorized to carry out a measure which it cannot fully implement for factual or legal reasons. The receiving (requested) authority is generally obligated to provide assistance unless there are reasons for exclusion.
The request should meet the requirements of form and content. In particular, it should generally be submitted in writing or in text form and must contain the information required to carry out the measure.
Jurisdiction and Cooperation
For the provision of enforcement assistance, the subject-matter and local jurisdiction of the requested authority is decisive. The subordinate or state-determined organizational structure determines which specific authority is to be involved for support.
Cooperation between the requesting and requested authority requires close coordination, as the enforcement of the measure must comply with the requirements of the rule of law. The responsibility for the legality of the original measure remains with the requesting authority, while the requested authority is responsible for the proper conduct of the enforcement assistance measure.
Limits and Refusal of Enforcement Assistance
Enforcement assistance may be refused if
- the measure is obviously unlawful,
- providing assistance would significantly conflict with the requesting authority’s own interests,
- or if exceptional circumstances justify a refusal.
Such reasons for refusal must be documented in writing and communicated to the requesting authority.
Distinction from Other Forms of Administrative Cooperation
Difference from Administrative Assistance
In everyday language, administrative assistance and enforcement assistance are often used synonymously, but legally they differ. Administrative assistance is more broadly defined and refers to supportive measures of any kind, whereas enforcement assistance specifically concerns support with enforcement measures, particularly where force is used.
Difference from Legal Assistance
Enforcement assistance is to be distinguished from so-called legal assistance, which primarily applies in the judicial field (specifically in cooperation between courts and law enforcement agencies).
Administrative Enforcement and Enforcement Assistance
A classic field of application for enforcement assistance is administrative enforcement. Once an administrative act becomes incontestable, the competent authority may request the cooperation of other authorities within the framework of enforcement assistance to enforce it. Examples include opening premises, securing objects, or other measures that the original authority cannot carry out by itself.
Practical Examples of Application
- Enforcement of Evictions: The regulatory authority requests police support measures.
- Implementation of Seizures or Confiscations: For measures requiring regulatory intervention that go beyond the order issued.
- Public Safety: Support of municipal regulatory authorities by state police authorities, for example, during major events or evacuations.
Legal Protection and Liability
As with other administrative actions, there is generally the possibility of seeking judicial protection concerning measures taken under enforcement assistance. Liability is governed by the general principles of state liability law; it is necessary to distinguish whether liability rests with the original or the assisting authority.
Relevance and Significance in the Federal System
In the federal structure of the Federal Republic of Germany, enforcement assistance is indispensable for the orderly enforcement of laws across authority boundaries. It enables the implementation of federal law by state or municipal authorities and thus makes a significant contribution to a functioning administrative system.
Summary: Enforcement assistance is an important component of German administrative law for supporting various authorities in enforcing sovereign measures. It is particularly relevant in the application of administrative enforcement, is anchored in the Basic Law, and is further detailed in various statutory regulations. In contrast to other forms of administrative cooperation, enforcement assistance is characterized by support in the actual enforcement of administrative measures—often with the use of coercive means.
Related Terms: Administrative assistance, administrative enforcement, legal assistance, administrative cooperationReferences and Literature:
- Art. 35 Basic Law (GG)
- § 5 VwVfG
- Administrative Enforcement Acts of the Federal Government and the States
- Schenke, Administrative Law, 10th edition
- Maurer, General Administrative Law, 19th edition
Frequently Asked Questions
In which cases can enforcement assistance be requested between federal states?
Enforcement assistance can, as a rule, always be requested between federal states in Germany when an administrative act, a court decision, or an official order from one state must be enforced in the territory of another state. A prerequisite is that the administrative act or title in question is eligible and ready for enforcement and that an enforcement interest exists. Typical cases include the collection of monetary claims (such as fines or fee notices), forced evictions, securing of objects, or the enforcement of removal orders concerning foreigners. Enforcement assistance is granted on the basis of federal or state legal regulations, for example according to § 5 Administrative Enforcement Act (VwVG) and the relevant Administrative Enforcement Acts of the states.
Which authority is responsible for the requested enforcement assistance?
For the execution of enforcement assistance in the requested federal state, the local enforcement authority is generally responsible. This may be, for example, the district office, regulatory office, or a specialized enforcement division, depending on the legal provisions of the state. The requesting authority directs its request to the competent authority of the other state, which then implements the requested measures according to its own state regulations within the scope of the request. It is generally bound by the content and legal force of the enforceable title and can exercise its own discretion if permitted by state law.
According to which legal provisions is the procedure for enforcement assistance governed?
The procedure for enforcement assistance is primarily governed by the Administrative Enforcement Acts of the respective state in which the enforcement assistance is carried out. Here, the territoriality principle is decisive: The requested authority acts according to its own statutory regulations, both regarding the allowed coercive measures and formal requirements. In addition, federal regulations such as the Administrative Procedure Act (VwVfG), the Federal Administrative Enforcement Act (VwVG-Bund), and, where applicable, special laws are important. Domestic regulations on legal assistance and enforceability (for example, in the Justice Administration Act or the Code of Execution of Sentences) must also be observed.
What requirements must be met for the granting of enforcement assistance?
For the granting of enforcement assistance, an enforceable title must exist, usually a final or immediately enforceable administrative act or a court decision. The decision must be submitted in the original or as a certified copy. Furthermore, enforcement in the requesting federal state must not be possible or not expedient, so there is an enforcement interest. There must also be no grounds for refusal, such as inadmissibility of the measure under local law or special protective provisions. The requesting authority must provide all necessary documents and information so that the requested authority can execute properly and lawfully.
Are there any restrictions or grounds for refusal for assuming enforcement assistance?
Yes, the requested authority may refuse enforcement assistance if the requested measure would be incompatible with mandatory provisions of its own state law, for example, in the event of violations of public order, ordre public, or special fundamental rights of the person affected. Practical impossibility, lack of jurisdiction, or incomplete documentation may also constitute grounds for refusal. Refusal is also possible if, in the opinion of the requested authority, the administrative act is obviously unlawful or formally unenforceable. In practice, however, there is generally a thorough review and close cooperation before enforcement assistance is refused.
Who bears the costs for executing enforcement assistance?
As a rule, the requesting authority bears the costs incurred by the requested authority in carrying out enforcement assistance. This is stipulated by the provisions of the Administrative Enforcement Acts and the principle that the burden of administrative assistance remains with the requesting authority. After completion of the measure, the requested authority may invoice its costs, which are then reimbursed by the requesting authority. In addition, the requesting authority may attempt to pass on the costs to the enforcement debtor within the scope of compulsory enforcement if the legal requirements are met. Exemptions or remission of costs are only granted in exceptional cases, such as for public safety measures.
What legal remedies are available to those affected during enforcement assistance?
Persons affected by enforcement assistance generally have the same legal remedies during the execution as in their own federal state. They may file objections to enforcement measures, submit applications for judicial protection (e.g., interim relief, enforcement objection), or request preliminary legal protection. The applicable procedures relating to form and deadlines are those of the state providing enforcement assistance. If an enforcement measure is executed directly as enforcement assistance, the competent administrative court at the seat of the requested authority has jurisdiction for any legal dispute. Review is usually limited to the execution of the enforcement, not the legality of the underlying title.
