Concept and Meaning of External Effect in Administrative Law
Die External Effect is a central element in administrative law and describes the legal effect of sovereign actions by an authority or administration towards a person or institution outside of the administration. It is one of the constitutive characteristics for the administrative act within the meaning of Section 35 of the Administrative Procedures Act (VwVfG) and is also decisive for distinguishing between internal administrative measures and justiciable interventions. The external effect is one of the most important concepts when it comes to the application of administrative law provisions, particularly in the area of legal protection.
Definition and Legal Foundations
Conceptual Classification
External effect occurs when an administrative measure has a direct legal consequence for a natural or legal person outside the administration, i.e., an “external party to the administration.” Measures that are directed exclusively against members of the same administrative level or within the authority’s structure (so-called internal effect) are not considered to have external effect.
Legal Provisions
The definition of external effect is found in particular within the legal definition of an administrative act in Section 35 sentence 1 VwVfG:
“An administrative act is any order, decision or other sovereign measure taken by an authority to regulate an individual case in the field of public law and which is intended to have a direct legal effect to the outside.”
The criterion of external effect also carries particular importance in procedural rules (e.g., Administrative Court Rules, VwGO) and in connection with possibilities for legal protection against administrative decisions.
Distinction: External Effect and Internal Effect
Internal Effect
Measures with purely internal effect are those that are directed exclusively at members of the authority, such as civil servants or other employees, within the administration. Typical examples include internal instructions, organizational measures (e.g., office instructions), and official evaluations.
As a rule, there is no entitlement to administrative court protection for measures with purely internal effect, since they do not establish or affect subjective public rights outside the administration.
External Effect
A measure has external effect if it is suitable to directly influence the legal position of an external legal entity. Examples include:
- Issuance of an administrative act (e.g., building permit, regulatory order)
- General orders (e.g., traffic signs, demonstration bans)
- Enforcement measures against private individuals
External effect is decisive for determining whether an administrative act is present and whether administrative court legal protection proceedings are available.
Significance of External Effect for the Administrative Act
According to Section 35 sentence 1 VwVfG, the external effect is an indispensable characteristic of an administrative act. Official actions lacking external effect are not legally considered administrative acts and therefore cannot be challenged by an action for annulment under Section 42 VwGO.
Immediate Legal Effect to the Outside
According to prevailing opinion, a measure has external effect when a decision is made by an authority towards citizens or third parties and alters the legal situation of those persons. This can concern both obligations and rights.
Range of Persons and Institutions
Not only natural persons, but also legal persons under private law (such as companies or associations) and under public law (as long as they are outside the administration, such as universities or chambers) can be recipients of measures with external effect. Authorities or other administrative units are only considered external if they act at another administrative level.
External Effect within the Scope of Legal Protection
Standing to Sue and Legal Remedies
Legal protection before the administrative courts in German administrative law is generally limited to measures with external effect. Under Section 42 para. 1 VwGO, the prerequisite for bringing an action for annulment or obligation is the existence of an administrative act, that is, a measure with external effect. Purely internal administrative measures or matters internal to the administration are not subject to judicial review by way of court action.
Third-Party Effect
External effect can exist not only vis-à-vis the primary addressee but also with respect to third parties if they are affected by the decision in their subjective public rights (third-party actions for annulment, e.g., neighbors in building law).
Particularities and Cases of Doubt
Measures with Mixed Effect
In practice, certain measures can have both internal and external effects at the same time. For example, the official evaluation of a civil servant is purely internal in effect, but can acquire external effect if it is connected to a promotion decision.
Sovereign Instructions in Inter-Administrative Relationships
Within the scope of delegated administration under Section 85 GG, or in cooperative administrative actions (e.g., instructions between the federal government and the states), instructions can have external effect, as long as they do not only have internal organizational impact but instead directly affect other administrative bodies or even private parties.
Distinction from Other Legal Areas and Terms
Public Law and Civil Law
The criterion of external effect also serves to distinguish administrative measures from civil law. Legal measures by the administration with external effect classically involve a relationship of authority and subordination between the state and the citizen, whereas civil law is generally characterized by a relationship of equals.
Internal Administrative Matters and Information Law Aspects
Internal administrative measures, such as official letters without regulatory character, are not subject to the strict requirements and legal protection regime of measures with external effect. Nevertheless, internal administrative acts may become relevant in terms of information law, for example within the scope of the right to inspect files under the Freedom of Information Act (IFG).
Summary
External effect is a fundamental requirement for an administrative act and a basic concept for the application of administrative law. It delineates justiciable sovereign interventions by the administration in the legal sphere of private parties from merely internal affairs and is essential to ensure effective right to be heard and judicial protection.
A proper assessment of external effect is of decisive importance in administrative practice both for authorities and affected parties regarding the question of whether and in what form judicial legal protection can be sought.
Frequently Asked Questions
What is the significance of external effect in administrative law for the contestability of administrative acts?
External effect is a central criterion for the contestability of administrative acts in administrative law. Only administrative acts that have external effect, that is, which have an immediate legal effect on a natural or legal person outside the administration, are in principle contestable. Internal administrative acts, which merely contain internal instructions of the administration and do not have an immediate legal effect on third parties, are ordinarily excluded from judicial review in the context of an action for annulment. Thus, the right to bring an action presupposes that an administrative act interferes with the rights of the plaintiff, which is not possible without external effect. The assessment of external effect therefore has substantial consequences both for the admissibility and the prospect of success of legal remedies in administrative proceedings.
How is it determined whether an administrative action possesses external effect?
Whether an administrative action possesses external effect is determined by interpreting the relevant administrative act or measure based on objective criteria. What matters is whether the measure is aimed at directly establishing legal consequences for a person outside the administration. Particular attention is paid to whether the relevant regulation, decision, or measure encroaches upon, establishes, revokes, or alters the existing rights of the affected party. Administrative procedures that are exclusively internal — such as service instructions, organizational measures, internal opinions, or directives — have only internal effect. However, as soon as an administrative measure takes effect externally and has a direct consequence for a citizen, external effect can be presumed.
What role does external effect play in the instruction on legal remedies?
The external effect of an administrative act is also of essential importance for the obligation to provide proper instructions on legal remedies. According to Section 37 paragraph 6 VwVfG, a written administrative act that is issued to a citizen or other third party (outside the administration) — i.e., has external effect — must mandatorily include a notice on legal remedies. If this instruction is missing, under Section 58 paragraph 2 VwGO an extended period of one year applies for bringing an action. An administrative act without external effect cannot trigger deadlines for legal remedies, so the provisions on legal remedy instructions and the associated deadlines are not applicable.
Can an administrative measure have both internal and external effect at the same time?
In principle, a distinction must be made between the internal and external effect of a measure. However, it is possible for a measure to contain both internally effective parts (for example, organizational orders within the authority) and externally effective components (for example, instructions that directly affect the rights and duties of a citizen). In such cases, a separate assessment of each regulatory component is required. For the purpose of legal external reference and the resulting legal consequences, particularly regarding contestability, only the externally effective part of the measure is relevant.
What is the significance of external effect for participants in administrative proceedings?
External effect is the essential precondition for participation in proceedings pursuant to Sections 13 et seq. VwVfG. A participant is someone whose own rights are affected by a measure, which can only be the case for externally effective administrative acts. Measures without external effect concern only the internal relationship within the administration and do not give rise to participation status or the associated participation rights. Only if external effect is present does, for example, a right to be heard, inspect files, or rectify arise within the administrative proceeding.
How does external effect differ from third-party effect in administrative law?
External effect is already present when a measure by the administration has legal effects vis-à-vis a person outside the administration; this concerns primarily the relationship between the administration and the citizen (addressee). Third-party effect, on the other hand, is present if the measure not only has legal effects for the direct addressee, but also immediately affects the rights or obligations of third parties (such as neighbors in the case of building permits). Thus, third-party effect is a particular subcategory of external effect with further-reaching consequences, for example concerning the rights of third parties to bring actions and the scope of judicial review.
What are practical examples that illustrate the requirement of external effect?
Typical examples of measures with external effect are: the granting or refusal of a building permit, the issuance of an identity card, regulatory orders (e.g., demolition orders), tax assessments, the imposition of a fine, or the withdrawal of social benefits. In contrast, purely internal administrative processes, such as reorganizations within an authority, the assignment of official duties, or internal official instructions, are examples of measures without external effect. These examples help to distinguish in which constellations external effect exists and thus whether (judicial) reviewability is present.
