Concept and basic definition of government act
In German constitutional and administrative law, the term ‘government act’ refers to an action or measure by the executive that is directly attributable to the government’s authority in the narrower sense. Government acts are to be distinguished from the classic administrative act—that is, the legally formal, individual orders of an authority. Government acts are characterized by the fact that, due to their political nature or their significance for the state as a whole, they are generally exempt from judicial review.
Thus, the government act is a central legal concept in distinguishing justiciable administrative acts from political acts of state leadership and in implementing the separation of powers between the executive and judiciary. Government acts primarily concern essential state decisions, particularly in the area of foreign relations and governance.
Distinction from other sovereign acts
Difference from administrative act
An administrative act within the meaning of the Administrative Procedure Act (§ 35 VwVfG) is any measure by an authority for the regulation of an individual case under public law with external effect. By contrast, government acts do not fall within the scope of the Administrative Procedure Act, as they typically do not serve an individual administrative purpose, but instead serve political governance and state security.
Relationship to legislative acts
A clear distinction also exists with regard to the legislature: parliamentary laws and parliamentary acts are not government acts, nor is the execution of laws by the administration without any political discretionary power.
Distinction from private law actions
Government acts are always attributable to public law and sovereign state authority, not to private law. Typical examples are international treaties, diplomatic measures, or acts of state leadership.
Legal-dogmatic background and significance
Constitutional foundations
The legal relevance of the government act essentially arises from Article 19(4) sentence 1 of the Basic Law (GG), which grants anyone affected by public authority in their rights a claim to effective judicial legal protection. However, acts of direct state leadership, i.e., government acts, are traditionally excluded from this as long as, by their nature, they are inaccessible to judicial control.
Separation of powers and judicial reviewability
The principle of separation of powers requires effective control of executive action. The Federal Republic of Germany therefore generally grants comprehensive legal protection against acts of the executive. Government acts are an exception to this principle if they involve political decisions with particularly wide scope for assessment, evaluation, and discretion.
For certain government acts, the Basic Law provides for special mechanisms of political accountability (for example, oversight by parliament), while judicial review is regularly excluded.
Areas of application and case groups
Foreign policy government acts
Classic examples of government acts are actions in the field of foreign relations, such as:
- Recognition or non-recognition of states and governments
- Conclusion or termination of treaties under international law
- Granting of exequatur to consular officials of foreign states
- Sending or recall of diplomatic representatives
Judicial review of these measures is regularly excluded in order to safeguard the flexibility and capacity to act of the state in existential and international matters.
State of emergency measures and internal governance
Government acts can also be significant domestically, such as in the context of large-scale measures to maintain the state’s integrity, for example, the declaration of a state of defense (Art. 115a GG) or other matters of high statehood, which are subject directly to political discretion.
Special cases: Domestic administrative government acts
Even in the purely domestic sphere, certain decisions may constitute government acts, for example, decisions regarding cabinet reshuffles or measures that directly concern the formation of government and do not affect individual rights of third parties.
Judicial relevance and legal protection
Exclusion of judicial review
According to traditional doctrine, government acts are not subject to review by administrative courts, as by their nature they are not subject to legal control but to political accountability (so-called acta iure imperii). In particular, the Federal Constitutional Court and administrative courts typically refuse to review government acts unless there are direct, individually attributable violations of third-party rights.
Exceptions and disputed cases
However, there are borderline cases in which administrative legal protection may be available, such as when a government act is combined with an enforceable administrative measure. In such cases, it must be examined whether there is an individually affected right whose violation is subject to legal protection.
International references and comparative law aspects
Government acts in German and international law
The term ‘government act’ (acta iure imperii) is also used in international law and in the context of international relations to distinguish governmental acts from civil transactions (acta iure gestionis). This is particularly relevant for questions of state immunity before foreign courts.
Distinction in international civil procedure law
According to Article 20(1), sentence 1 of the Introductory Act to the Civil Code (EGBGB), foreign states are not subject to jurisdiction in Germany for government acts. International state immunity applies only to activities performed in the exercise of sovereign authority.
Summary and legal-political significance
Government acts embody the exercise of direct state authority, closely linked to state leadership and sovereignty. This legal concept marks a central interface between political freedom of action and judicial oversight. The careful distinction between government acts and justiciable administrative acts protects both the fundamental right to legal protection and the capacity of the government to act in essential matters of the state.
Literature and further sources
- Maunz/Dürig, Basic Law Commentary, Art. 19 GG
- Sachs, Basic Law, Commentary, Art. 19 GG
- Ipsen, Constitutional Law I, Constitutional Law
- BVerwGE 19, 16 (Recognition of foreign states)
- Ehlers/Pünder (eds.), General Administrative Law
This legal dictionary article serves general informational purposes on legal terms and does not constitute legal advice.
Frequently asked questions
When and in which proceedings is the classification of a measure as a government act relevant?
The classification of a measure as a government act is particularly important in the context of administrative court proceedings. Pursuant to § 40(1) VwGO, ‘public-law disputes of a non-constitutional nature’ are subject to administrative court review. Government acts—that is, actions by the executive and legislature that are, by their typical character, acts of state governance or political acts—are not subject to this review if they are of a constitutional nature. This follows from the fact that such acts are either already subject to constitutional court review, or are inherently not intended to be subject to judicial review. Typical examples are acts of foreign policy leadership, such as the conclusion of treaties under international law, the granting of diplomatic recognition, or the deployment of the Bundeswehr abroad. In these cases, it is crucial to distinguish whether a claimant should pursue the constitutional court route, or whether the measure is entirely exempt from judicial review.
What are the legal consequences of qualifying a measure as a government act?
The legal qualification as a government act means that the affected legal subject is precluded from seeking administrative court protection under the Administrative Court Code. Government acts are exempted from so-called justiciability—that is, they are not subject to review by the administrative courts. This is due, on the one hand, to the principle of separation of powers, according to which certain core competencies of state leadership—such as foreign policy decisions or specific acts of the executive with a political character—must not be subject to full judicial review mechanisms. Furthermore, the construct of the government act forms a deliberately drawn barrier within the legal protection system to safeguard autonomous state functions. The concrete legal consequence is, therefore, the inadmissibility of an administrative court procedure, which is often expressed in relevant decisions.
How do government acts differ from other acts of the executive?
Government acts differ from usual measures of the executive—such as administrative acts under § 35 VwVfG—primarily through their political character and close connection to the constitutionally protected core area of state governance. While classic administrative acts are aimed at enforcing individual-specific regulations and are generally open to judicial review, government acts are characterized by major constitutional significance, forward-looking decisions, and impact on state sovereignty. The decisive distinguishing criterion is the ‘state leadership quality’: if the main focus of the measure is on politically responsible state governance, it is a government act, whereas in mere administration, justiciability predominates.
What role does the principle of separation of powers play in classifying an act as a government act?
The principle of separation of powers (Art. 20(2) sentence 2 GG) serves as a key conceptual guideline in determining whether a measure is to be regarded as a government act. Its purpose is to prevent the courts from deciding on such acts of government that belong to the direct responsibility of the government (executive) or the legislature. In the case of measures with a particularly high political character, manifesting the democratic-parliamentary accountability principle, the principle of judicial review is restricted for reasons of separation of powers. Thus, the concept of the government act serves to protect the autonomy of the executive and the legislature from direct judicial control, especially in sensitive political or foreign policy matters.
Which examples of government acts are frequently recognized in case law?
Jurisprudence regularly classifies the following measures as government acts: decisions about the conclusion and termination of treaties under international law, actions relating to the recognition or non-recognition of states and governments, troop deployment and alliance policies, certain sovereign acts of state representation (e.g., participation of the Federal President or the Federal Chancellor in state ceremonies), and instructions to diplomatic missions. Administrative measures in the context of international cooperation (such as international law enforcement or the granting of mutual legal assistance by the executive in politically sensitive cases) are also often considered government acts. Only where a measure no longer targets state governance but pure administration is the classification as a government act regularly rejected.
Are there exceptions to the non-justiciability of government acts?
Although government acts are generally exempt from judicial review, there are a few exceptions, for example, where the Basic Law expressly assigns jurisdiction to the Federal Constitutional Court or a state constitutional court by special legislation. Furthermore, a very narrow exception may arise if the action simultaneously gravely infringes fundamental rights and no other means of legal protection exists: in such rare cases, courts are required—within extremely tight limits—to allow indirect legal protection to prevent the right to effective legal protection (Art. 19(4) GG) from becoming meaningless. However, the case law applies such exceptions with utmost restrictiveness.
How is the distinction between government act and executive administration made in individual cases?
The distinction between government act and executive administration is made by assessing all relevant circumstances. Case law particularly considers the objective character of the measure, its political nature, and its connection to state governance. It is necessary to examine whether the core of the measure aims to politically guide the state as a whole, such that the required political discretionary power of the executive is affected. Fiscal or organizational decisions without significant state leadership function, on the other hand, are subject to full judicial control. The boundary between government act and administrative act ultimately remains a question of evaluation for the courts in each individual case, taking into account the specific circumstances.
