Definition and Position of the Higher Administrative Court
Das Higher Administrative Court (abbreviated: OVG; in Bavaria: Bavarian Administrative Court of Appeal, in Baden-Württemberg: Administrative Court of Appeal Baden-Württemberg, in Hesse: Hessian Administrative Court of Appeal) constitutes in Germany the second instance of the regular administrative jurisdiction. It is positioned between the administrative courts as courts of first instance and the Federal Administrative Court as the court of revision. The Higher Administrative Court plays a central role in ensuring the uniformity of the law and in advancing the development of administrative law at the state level.
Legal Basis and Organization
Statutory Foundations
The establishment, organization, and jurisdiction of the Higher Administrative Courts are governed by the Courts Constitution Act (GVG) and the Administrative Court Procedure Act (VwGO) . In addition, state laws, for example, the Administrative Court of Appeal Act of each respective federal state, specify concrete details regarding structure, number, and location of the courts.
Structure and Composition
The Higher Administrative Court is divided into senates, each consisting of several professional judges. The exact number of senates varies by federal state and workload. Each senate is chaired by a presiding judge.
Tasks and Jurisdiction
Function in the System of Instances
The Higher Administrative Court mainly acts as a court of appeal and complaints. It reviews decisions of the administrative courts, which serve as courts of first instance, both in terms of facts and law.
Types of Proceedings
- Appeal against judgments of the administrative courts (§ 124 et seq. VwGO)
- Complaints procedures in various scenarios, for example, in cases of denial of legal aid or determination of the amount in dispute
- First instance decisions in certain special cases, for example, state-wide zoning plans, significant infrastructure projects, or challenges under municipal constitutional law
Other Tasks
Norm control procedure
The Higher Administrative Court is particularly responsible for so-called abstract norm control procedures under § 47 VwGO. This allows judicial review of the legality of subordinate legal norms – for example, zoning plans or municipal statutes.
Further jurisdictions
In addition, the OVG or Administrative Court of Appeal frequently decides in other areas of law such as school, university, police, or economic administrative law and takes on a reviewing role in election review matters within self-governing bodies.
Proceedings before the Higher Administrative Court
General Procedure
Proceedings before the Higher Administrative Court are typically contentious proceedings with at least two parties involved: plaintiff and defendant (usually state authorities). As a rule, an oral hearing is scheduled unless the parties waive it or the court deems it unnecessary (§ 101 VwGO).
Admission of the Appeal
An appeal to the Higher Administrative Court is only permissible if it is expressly admitted. Admission takes place either by the administrative court in the judgment or subsequently by a decision of the Higher Administrative Court, provided certain prerequisites are met:
- Fundamental importance of the case
- Deviation from supreme court case law
- Serious procedural errors
Parties and Legal Representatives
Before the OVG, there is generally a mandatory representation (§ 67 VwGO). This means that the parties must be represented by persons authorized to act on their behalf, usually someone qualified to hold judicial office.
Significance of the Higher Administrative Court in the Legal Protection System
Ensuring Uniform Application of the Law
As the second instance, the Higher Administrative Court secures the uniform application and interpretation of administrative law at the state level and thus plays a prominent role in the development of administrative case law.
Pre-Decision Role for the Federal Administrative Court
Decisions of the Higher Administrative Court frequently form the basis for possible appeals to the Federal Administrative Court. They are therefore crucial for the further development of administrative law and serve as guidance for administrative authorities and lower courts.
Relationship to Other Jurisdictions and Courts
Distinction from Other Administrative Courts
While the administrative courts serve as courts of first instance with complete fact-finding, the OVG is primarily responsible for reviewing these judgments both factually and legally. This makes it an important component of the system of instances and the appeals structure.
Position Regarding the Federal Administrative Court
The Higher Administrative Court is subordinate to the Federal Administrative Court. Under certain conditions, revision (appeal) to the Federal Administrative Court is permissible against decisions of the OVG (§ 132 VwGO).
Higher Administrative Courts in the Federal States
Each federal state has at least one Higher Administrative Court or Administrative Court of Appeal. The designation and the exact structural organization differ in part:
- OVG: In almost all territorial states
- Administrative Court of Appeal (VGH): In Bavaria, Baden-Württemberg, and Hesse
- Joint OVG Berlin-Brandenburg: Responsible for both states
The main seat is located in the respective state capital or a major administrative center.
Historical Development
The first Higher Administrative Courts were introduced in Prussia with the Act on the Higher Administrative Courts of 1875. After the Second World War and with the entry into force of the Basic Law in 1949, the current structure of administrative jurisdiction with its three-tier system (Administrative Court, OVG/VGH, Federal Administrative Court) was established.
Literature and Further Regulations
Relevant statutes and literature references include in particular:
- Administrative Court Procedure Act (VwGO)
- State laws on administrative jurisdiction
- Courts Constitution Act (GVG)
Further information can be found in academic commentaries on the VwGO and legal monographs on administrative procedural law.
Conclusion
The Higher Administrative Court represents a key instance within the German administrative judiciary. It ensures the review and correction of administrative court decisions, guarantees the uniform application of law within each federal state, and plays a significant role in the development of administrative law. Its decision-making authority in norm control procedures underscores the importance of the OVG as a mediator between law and administration and as a guarantor of due process.
Frequently Asked Questions
What are the tasks of the Higher Administrative Court in the judicial system of instances?
The Higher Administrative Court (OVG), referred to as Administrative Court of Appeal in some federal states, forms the second instance within administrative jurisdiction. It acts as an appellate and complaints court, reviewing first-instance judgments and decisions of the administrative courts for legal errors and, under certain conditions, also for errors of fact. The OVG is primarily responsible for reviewing the legal decisions of lower courts but can also make its own findings of fact, especially if the case must be decided on the basis of new or previously insufficiently considered facts. It also rules on applications for leave to appeal, on interim legal protection in the second instance, and is partly responsible for norm control procedures under administrative law, for example, when state law must be reviewed for conformity with higher-ranking law.
When can an appeal (revision) be lodged against a decision of the Higher Administrative Court?
Appeals to the Federal Administrative Court can regularly be lodged against decisions of the Higher Administrative Court. However, approval for the appeal is only granted under certain statutory conditions, especially when the case is of fundamental importance, the judgment deviates from established case law, or there are significant procedural errors. The appeal serves solely for the review of legal questions; only in exceptional cases, in the presence of procedural errors, may factual errors be subject to review. Often, a separate application for admission of the appeal must be submitted beforehand.
What is the significance of the Higher Administrative Court’s decisions on the interpretation of state law?
Since the Higher Administrative Court in most cases is the court of last instance with regard to ordinary state law, its interpretative decisions carry particular importance in this area. The principles it lays down are binding for subordinate administrative courts and have a de facto guiding effect for both the administration and the courts of the respective federal states. An appeal to the Federal Administrative Court is only permissible if federal law provisions are affected or if the dispute is of fundamental supra-regional importance.
In which proceedings does the Higher Administrative Court have original jurisdiction?
In addition to its function as an appellate instance, the OVG may also act as a court of first instance in certain proceedings. These include, in particular, norm control proceedings under § 47 VwGO, in which it is determined whether subordinate statutory provisions, especially zoning plans or other statutes, comply with higher-ranking law. The Higher Administrative Court can also be directly seized in matters of state disciplinary law and in specific technical fields, for example, in election or university matters, provided for in the relevant special laws.
How are proceedings before the Higher Administrative Court organized?
Proceedings before the Higher Administrative Court are primarily regulated by the Administrative Court Procedure Act (VwGO). There are several differences from first-instance proceedings at the administrative court: Before the OVG, the involvement of a lawyer is generally required, meaning that parties must be represented by a Rechtsanwalt unless they are themselves admitted as lawyers. The procedure is predominantly written, though the court may order oral hearings and the taking of evidence, if the facts or the legal situation are not sufficiently clear. In principle, the court is bound by the determination of facts by the court of first instance, but exceptions are made if these findings are clearly erroneous.
What legal remedies are available against decisions of the Higher Administrative Court?
Depending on the nature of the proceeding and the decision, OVG decisions are subject to various legal remedies. In the principal matter, an appeal (revision) to the Federal Administrative Court is usually available, provided it has been admitted. In proceedings concerning interim legal protection, however, generally no further ordinary legal remedies are allowed. Against certain decisions, a complaint regarding denial of the right to be heard under § 152a VwGO may be lodged or a constitutional complaint may be filed with the Federal Constitutional Court if fundamental rights are affected.
What are the prerequisites for an appeal to the Higher Administrative Court?
An appeal to the OVG against a first-instance judgment of the administrative court is only admissible if it has either been admitted by the administrative court or if the Higher Administrative Court admits the appeal upon request. This generally requires that the case is of fundamental importance, the first-instance judgment deviates from established case law, or serious procedural errors are asserted. The grounds for the appeal must be submitted on time and with a detailed statement of reasons for admission.
