Concept and Significance of the Incidental Declaratory Action
Die Incidental Declaratory Action is a term from German procedural law, especially from administrative proceedings, which concerns the clarification of a disputed preliminary issue within the scope of pending main proceedings. It allows for the establishment of the validity or legality of a legal relationship that is decisive for the outcome of an ongoing judicial proceeding, even if the party itself is not directly entitled to bring an independent declaratory action.
Distinction from the Independent Declaratory Action
In German law, a distinction is made between the independent declaratory action (pursuant to § 43 VwGO, § 256 ZPO) and incidental findings in ongoing main proceedings. The independent declaratory action requires a legal relationship that can be established and a legitimate interest in the judicial determination. The incidental declaratory action, in contrast, is not an independent type of action in a narrow sense, but refers to proceedings in which an administrative court—on the occasion of an admissible action—must decide on a preliminary issue relevant to the main matter.
Legal Basis and Scope of Application
Statutory Regulation
The terms “incidental determination” and “incidental declaratory action” are not explicitly regulated by law. However, they arise from the procedural systematics of the Code of Administrative Court Procedure (VwGO), the Code of Civil Procedure (ZPO), as well as from judicial law development and academic opinions.
In practice, incidental determinations especially occur within the scope of appeals (§ 42 Para. 1 VwGO) or mandatory actions (§ 42 Para. 1 Alt. 2 VwGO), when the main legal relationship to be assessed (e.g., the status of an administrative act) depends on a preceding legal question.
Requirements
An incidental determination is required when:
- the decision on the asserted claim depends on a disputed preliminary issue,
- a direct clarification of this preliminary issue in the form of an independent declaratory action is not possible due to lack of standing to sue or lack of interest in a declaration,
- the court is obliged, in the context of the main proceedings—with binding effect if necessary—to decide on this preliminary issue.
Subject Matter and Content
Typical subjects of incidental determination include the validity of a legal relationship, the existence of an administrative act, or internal administrative decision-making acts. The determination does not have direct external effect, but rather serves as a necessary preliminary question for deciding the actual subject matter of the dispute.
Dogmatic Classification and Theoretical Foundations
Incidental Scope of Examination
Within the framework of an appeal, mandatory, or performance action, the administrative court must also clarify such preliminary issues that serve as a basis for the admissibility or validity of the asserted claim. The incidental determination occurs in the operative part of the judgment or in the reasoning and has binding effect only for the specific case.
Binding Effect and Res Judicata
Findings made in the course of an incidental declaratory action do not have direct res judicata effect vis-à-vis third parties or in other proceedings. Only within the specific court procedure is the civil or administrative law (pre-)legal relationship determined by the court binding upon the parties and the court.
A classic example is the finding of the nullity of an administrative act as a prerequisite for a mandatory action, in which the authority is to be obligated to issue a new administrative act.
Practical Relevance and Examples of Application
Example from Administrative Law
A typical case of the incidental declaratory action arises in the context of an appeal against the rejection of an administrative act. The court may need to incidentally review whether an allegedly opposing administrative act exists or whether it is void. Clarification of this preliminary question is imperative for deciding on the main action.
Example: Granting a Building Permit
A claimant applies for a building permit, which is denied on the grounds that there is an existing neighbor’s building permit in conflict. In order to decide on the mandatory action, the court must incidentally clarify whether this neighbor’s permit is actually lawful or was void from the outset. Without being able to bring an action directly against the neighbor’s permit, the assessment of this preliminary question is simply carried out as part of the incidental review.
Significance in Civil Proceedings
A comparable situation arises in civil proceedings when a party derives rights from a legal relationship whose existence must first be reviewed incidentally before the main claim can be adjudicated. Civil courts also apply the concept of the incidental determination to this extent.
Distinction from Third-Party Appeals and Res Judicata Effect
The incidental determination must be strictly distinguished from actions in which third parties may directly challenge an administrative act (so-called third-party appeal). While in a third-party appeal the third party has active standing, there is no legal possibility in an incidental declaratory action to determine the relevant preliminary issue as such—the issue is reviewed only in the context of an admissible main application.
Judicial decisions made in connection with an incidental declaratory action do not have material res judicata effect beyond the specific dispute. This also distinguishes the incidental determination from a successful independent declaratory action.
Literature, Case Law, and Prevailing Opinions
Important Landmark Decisions
The case law of the Federal Administrative Court (BVerwG), the Federal Court of Justice (BGH), and the Higher Administrative Courts has clarified the dogmatic systematics of the incidental determination, particularly in regard to the consequences of the binding effect and the requirements for the legal relationship capable of declaration.
Academic Opinions and Discussions
In the academic literature, there is some discussion regarding what binding effect applies to an incidental determination and to what extent third parties may be affected. The predominant view is that the effect of res judicata is strictly limited to the parties to the proceedings and the subject matter of the original procedure.
Summary
The incidental declaratory action is a central institution of German procedural law and ensures effective protection of rights in the principal proceedings, even when certain preliminary issues cannot be clarified independently before the court. It ensures that the court decides on the legal preliminary issues necessary for the decision on a main application without requiring the procedural need for an independent action to be met. The decision is binding only for the specific case and does not have res judicata effect beyond that.
Further Reading:
- Kopp/Schenke, Code of Administrative Court Procedure
- Schoch/Schneider/Bier, VwGO Commentary
- BVerwG, Judg. of 29.7.2010 – 3 C 23.09
See also:
- Declaratory Action
- Preliminary Issue
- Appeal Action
- Mandatory Action
Frequently Asked Questions
How does the incidental declaratory action differ from the normal declaratory action?
The incidental declaratory action fundamentally differs from the normal declaratory action—also called the independent declaratory action—due to its substantive link with a principal proceeding. While with the regular declaratory action pursuant to § 256 Para. 1 ZPO, the existence or non-existence of a legal relationship is the direct subject of a proceeding as an independent matter in dispute, the incidental determination arises within the framework of ongoing main proceedings. Clarification therefore does not occur independently, but in connection with another type of action, such as a performance action, if the legal relationship to be clarified is relevant or decisive for the main application. A key feature of the incidental determination is that it does not result in a binding declaration effect for other proceedings, but only within the pending legal dispute.
Under what conditions is an incidental declaratory action permissible?
A prerequisite for the admissibility of an incidental declaratory action is, in particular, the existence of a disputed, decision-relevant preliminary issue in the main proceedings. The courts examine whether deciding on the main claim necessarily requires clarification of a legal or factual question (the so-called ‘preliminary issue’), which has not already been resolved by a final decision, for example, in a binding declaratory action. In addition, the incidental determination must be permissible and possible within the existing procedural law. In certain cases, it is excluded, for instance, where special statutory regulations such as the route of administrative jurisdiction under § 43 VwGO have priority, or when an independent declaratory action would be inadmissible due to a lack of legitimate interest in legal protection.
What procedural effect does the incidental determination have within the ongoing court proceedings?
The incidental determination acquires binding effect within the ongoing proceedings only between the parties to the process and only for this specific legal dispute. Its effect is thus limited inter-partes and does not produce either a formal or material res judicata with regard to the incidentally reviewed preliminary issue for other proceedings or outside the specific procedural relationship. In future proceedings, the same legal question may therefore be raised again and, if necessary, decided differently.
What procedural peculiarities must be considered when asserting an incidental determination?
A key peculiarity is that the determination to be reviewed incidentally is generally not a separate subject of the application, but rather a preliminary issue considered within the framework of the main claim according to procedural maxims (particularly in the recognition proceedings). The parties cannot demand an independent operative part of the judgment specifically on the incidental determination, but can only expect the preliminary issue to be considered and assessed. The relevant subject matter of the dispute remains that of the main claim; the preliminary issue to be determined incidentally is technically part of the so-called ‘decision requirement’ according to § 308 Para. 1 ZPO. Nevertheless, the parties have the right to insist on the examination of relevant preliminary issues.
Can appeals be lodged against the incidental determination?
An immediate appeal is not admissible against the incidental determination as such, since—unlike a declaration with an independent judgment—the parties are not aggrieved in an independent manner. However, if the main proceedings are concluded by a final judgment, the incidentally determined question may be reviewed and challenged together with the main claim on appeal or revision. The right of review then also extends to the facts and legal questions considered incidentally, to the extent that they were relevant to the decision on the main claim.
In which fields of law is the incidental declaratory action typically applied?
Incidental determination is applied in all procedural contexts in which clarification of a preliminary issue is decisive for the main claim. Examples include civil procedure law (e.g., examining the validity of a contract in a performance action), administrative procedure law (e.g., the lawfulness of a prior ruling for an appeal or mandatory action), as well as social and labor law. Incidental determination is thus a widely used instrument in procedural practice for the efficient bundling of disputed issues, without overburdening the appellate process with separate declaratory actions.
Does the incidental determination have binding effect for other proceedings or third parties?
No, the incidental determination generally does not have binding effect for other proceedings or uninvolved third parties. It is significant only for the specific dispute between the parties to the current proceedings, as it is usually not included in the operative part of the judgment and thus does not create independent res judicata effect pursuant to § 322 ZPO. Only in exceptional cases, if expressly included in the operative part of the judgment or in the case of a statutory provision, can broader binding effect arise, which, however, is not generally characteristic of the incidental declaratory action.
