Incorrectness of an administrative act
The incorrectness of an administrative act is a central concept in German administrative law and plays a significant role, particularly in connection with the correction and revocation of administrative acts. According to the legal definition, an administrative act is a sovereign measure by an authority in the field of public law which is intended to regulate an individual case with immediate external legal effect (§ 35 VwVfG). Incorrectness concerns the material or formal correctness of the authority’s decision and is particularly relevant for the question of the withdrawal (cf. § 48 VwVfG) or amendment of an administrative act (§ 45, § 48, § 49 VwVfG).
Definition of incorrectness
Definition
The incorrectness of an administrative act exists when, at the time of issuance, the administrative act does not correspond to the objective legal situation or factual situation. This deviation can relate to the legal basis applied, the subsumption, as well as the underlying facts, the decision-making process, or the procedure used. Incorrectness thus serves as a collective term for errors that cause the administrative act to contradict the material or formal legal order.
Types of incorrectness
Material incorrectness
Material incorrectness is present when the administrative act is substantively erroneous. This is the case if the underlying findings of fact or legal assessments are incorrect. The most common applications of material incorrectness are found in the withdrawal of unlawful administrative acts pursuant to § 48 para. 1 sentence 1 VwVfG.
Formal incorrectness
Formal incorrectness is based on procedural or formal errors in issuing the administrative act. Examples include the violation of hearing obligations (§ 28 VwVfG), participation rights, formal requirements (§ 37 VwVfG), jurisdiction requirements, or deficient notification.
Obvious incorrectness
Obvious incorrectness is given when the error is recognizable to anyone upon superficial examination, that is, without further ado. This category is particularly relevant for the correction of administrative acts (§ 42 VwVfG).
Legal consequences of incorrectness
Withdrawal and revocation of unlawful administrative acts
The incorrectness of an administrative act is regularly a prerequisite for its withdrawal pursuant to § 48 VwVfG. Unlawful administrative acts (whether beneficial or adverse) may be withdrawn under certain conditions.
- Beneficial administrative acts may, pursuant to § 48 para. 1 sentence 2 VwVfG, generally only be withdrawn under limited circumstances and taking into account the principle of legitimate expectations.
- Adverse administrative acts can be withdrawn pursuant to § 48 para. 1 sentence 1 VwVfG regardless of considerations of legitimate expectations.
It is different in the case of revocation pursuant to § 49 VwVfG, which targets lawful but modifiable administrative acts.
Correction of administrative acts
According to § 42 VwVfG, authorities may correct administrative acts if they are obviously incorrect. The correction procedure serves to rectify obvious clerical, calculation, or similar errors that result in an incorrect representation of the contents of the administrative act. A correction can only be made if the authority’s decision-making basis remains unchanged and merely the erroneous representation is to be corrected.
Reopening of the procedure
According to § 51 VwVfG, it is possible to reopen a procedure when new facts or evidence come to light that would have led to a different decision. This also concerns cases in which the original administrative act was incorrect because it was based on an inaccurate factual situation.
Distinctions
Erroneous administrative act and nullity
Not every incorrect administrative act is also void. The nullity of an administrative act is governed by § 44 VwVfG. Nullity only occurs in the case of particularly grave errors that are obvious and render the administrative act invalid from the outset. Incorrectness alone is not sufficient for the assumption of nullity; rather, incorrect but not void administrative acts remain effective for the time being, but can, as described, be corrected or withdrawn.
Incorrectness and unlawfulness
Incorrectness particularly concerns the objective error of an administrative act, whereas the term unlawfulness is oriented toward compliance with legal provisions. In practice, the concepts overlap to a large extent, since every unlawful administrative act is to be classified as incorrect. However, there may be cases where an administrative act is incorrect (e.g., due to obvious clerical errors) but not necessarily materially unlawful.
Significance in administrative procedure
Effectiveness of administration
The possibility of correcting or revoking incorrect administrative acts is an expression of effectiveness and legal certainty in the administrative procedure. It allows for the correction of government decisions in cases of incorrect determination of facts or legal assessment errors, while safeguarding the interests of those affected and upholding legitimate expectations.
Protection of legitimate expectations
Particularly in the case of the withdrawal of beneficial but incorrect administrative acts, the protection of legitimate expectations is significant. Those affected must be able to rely on the advantage granted to them remaining in place, unless there are overriding serious public interests or deception, threats, or bribery are present on their part.
Practical examples
- Tax assessments calculated incorrectly: Fall within the scope of correction, for example, if obvious calculation errors remain in the notice.
- Accidental correction of incorrect overall grades on school certificates: The school authority may correct the administrative act on the basis of obvious incorrectness under § 42 VwVfG.
- Granting of social benefits on an incorrect factual basis: The notice may be withdrawn under § 48 VwVfG if the incorrectness of the decision is proven.
References
- Kopp/Ramsauer, Verwaltungsverfahrensgesetz, Commentary, most recent edition
- Stelkens/Bonk/Sachs, Verwaltungsverfahrensgesetz, Commentary, most recent edition
- Detterbeck, General Administrative Law, Textbook, most recent edition
This detailed presentation on the incorrectness of an administrative act shows the diverse legal implications and the central importance of this concept in German administrative law. Through clear distinctions, comprehensive integration into the system of administrative legal remedies, and the use of practical examples, this article provides a complete overview for the legal lexicon.
Frequently asked questions
When does an incorrectness of an administrative act exist within the meaning of the Administrative Procedure Act?
An incorrectness of an administrative act in the legal context exists when the declared intention of the authority is incorrectly, that is, not accurately, embodied in the administrative act issued. Typical incorrectnesses are clerical errors, calculation errors, or other similar obvious errors where there is a contradiction between the intended content and its actual representation in the notice. The decisive criterion is that, objectively, the authority intended a different regulatory content from that shown in the administrative act, but failed to do so due to a mechanical oversight (e.g., typo in names, number transposition in amounts). To determine incorrectness, reference must be made to the express or ascertainable internal intention of the authority at the time the administrative act was issued. However, the error must not be substantive or legal, but solely concern the implementation of the will in its external form.
How is a correction of incorrectness carried out in an administrative act?
The correction of errors in administrative acts is carried out in accordance with § 42 VwVfG (Administrative Procedure Act) ex officio or upon application. The authority is basically entitled and obliged to correct obvious errors at any time, even after the administrative act has become final. The correction must be made by means of a special, informal notice in which both the corrected and the original erroneous document are set side by side. A formal procedure is not required. In principle, the correction has ex tunc effect, meaning it applies retroactively to the time the original administrative act was issued.
Are there limitations or boundaries to correction of errors by the authority?
Yes, correction reaches its limits when the correction does not merely remove an obvious incorrectness but would substantively redesign the administrative act. In the context of correction, the authority may only remedy the error between its actual intention and the manifestation in the administrative act, but must not introduce new decisions or substantive changes (e.g., subsequent findings or changes of intention). Otherwise, it would not be a mere correction but rather a withdrawal (§ 48 VwVfG) or amendment (§ 48, § 49 VwVfG) of the administrative act.
What are the legal consequences for affected persons of the correction of an obvious incorrectness?
For the affected party, the correction of an obvious incorrectness does not generally change the scope of regulation, since the administrative act was always intended by the authority to exist in its corrected version. The correction thus eliminates a contradiction between will and declaration and is therefore not an independent administrative act, but merely the correction of an existing act. Legal remedies (e.g., objection, legal action) may be brought against the correction if the affected person believes that it was not merely an obvious incorrectness but rather a substantive change that was made.
Who bears the burden of proof for the existence of an obvious incorrectness?
The responsibility and burden of proof for establishing an obvious incorrectness generally lies with the authority that makes the correction. It must be indisputably apparent and objectively comprehensible that an error occurred in implementing the authority’s intention. Whether such an error is obvious within the meaning of § 42 VwVfG is determined by objective criteria—a subjective misperception or ignorance of the affected party does not suffice for a correction. The authority must substantiate, by memoranda, protocols, or other documents, the intention it held at the time of issuance to clarify the incorrectness beyond doubt.
Can affected persons apply for the correction of an error, or is it only possible ex officio?
A correction may be made either ex officio or upon application by the affected person. If the affected person identifies an obvious incorrectness, such as a typographical error, they can submit an application for correction to the competent authority. As part of its duty to act lawfully, the authority must conduct an appropriate examination and, if the requirements are met, perform the correction. This is particularly relevant if the affected person has suffered a disadvantage as a result of the incorrectness.
What is the effect of the correction of errors on deadlines and the finality of the administrative act?
The correction of an obvious incorrectness fundamentally does not affect the legal finality or set deadlines, since the administrative act should have existed in its correct form from the outset. The course of objection or court action deadlines is only reset if the correction objectively results in a completely new administrative act, which is generally not the case for mere errors. Only in the event of an obvious change exceeding the originally intended content is a new commencement of deadlines possible.
