Suggestion in Law: Definition, Significance, and Legal Classification
Die Suggestion is a central concept in various areas of law within the German legal system and refers to the submission of a notice, proposal, or impetus to an authority or court with the aim of prompting official action or initiating a specific procedure. A suggestion is legally and conceptually distinct from a formal application and is particularly used in public law, administrative law, as well as in civil procedure law and family law.
Conceptual Distinction and Significance
Difference from Application
A suggestion is distinguished from an application in that the person making the suggestion does not necessarily need to be entitled to submit an application themselves. While an application creates rights of participation in the proceedings and entitles one to a decision, a suggestion merely triggers a duty for the competent authority to examine the matter. The authority or court decides at its own discretion whether to initiate a procedure.Example: Anyone who submits an application for a building permit simultaneously becomes a party to the proceedings. A suggestion that the building supervisory authority should take action on its own initiative and proceed against a neighbor due to illegal construction does not result in party status.
Legal Nature of the Suggestion
Legally, a suggestion is classified as an “informal legal remedy” or an informal procedural impulse. It is not subject to any formal requirements, can be made in writing, orally, or electronically, and only obliges the authority or court to review whether pursuing the matter is in the public interest or necessary.
Areas of Application for the Suggestion
Administrative Law
In administrative proceedings, Section 24 of the Administrative Procedure Act (VwVfG) allows suggestions to be made by third parties without their own legal standing. The administration must review the concern, but is not required to make an immediate decision.
- Regulatory Law: Citizens may submit a regulatory suggestion if, for instance, a violation of road traffic law or emission control law is suspected.
- Social Law: Here, a suggestion can lead to the authority investigating ex officio (§ 20 SGB X) even if no formal application has been made.
Civil Procedure Law and Voluntary Jurisdiction
In civil procedural law, suggestions are especially used in the area of voluntary jurisdiction (§ 23 FamFG):
- Guardianship Proceedings: Anyone can suggest to the guardianship court that guardianship be established for a person in need of assistance (§ 1896 BGB in conjunction with § 271 FamFG).
- Probate Matters: Third parties may make a suggestion if there are legitimate doubts concerning testamentary capacity.
However, a suggestion does not automatically lead to the initiation of proceedings. The court examines whether there are objective indications for the procedural measure in question.
Criminal Law
Although there is no formally regulated suggestion in criminal law, it is possible to submit information on criminal offenses to the police or public prosecutor. These reports are treated as complaints. There is no discretion to investigate because the principle of legality applies.
Legal Consequences and Procedural Effects
Initiation of Proceedings
A suggestion can lead to the initiation of official proceedings, but does not oblige the authority or court to do so. There is a right and a duty to review, but no right for the person making the suggestion to have a procedure initiated.
No Party Status
Unlike an application, a suggestion does not of itself establish party status in the proceedings. Rights to inspect files, be heard or receive information about the outcome generally do not exist.
Rejection of the Suggestion
If a suggestion is not acted upon, there is usually no formal notice to the person making the suggestion. This person cannot take legal action against the inactivity, unless their own rights are actually being infringed.
Significance of Suggestion for the Rule of Law
The possibility of submitting suggestions strengthens public participation and the perception of governmental duties. It contributes to the flexibility of administrative and judicial procedures and makes it possible for third parties – even without being directly affected – to point out legally relevant situations.
Summary
Die Suggestion is an instrument of the rule of law in the German legal system, which plays a significant role especially in administrative law and voluntary jurisdiction. It enables third parties to initiate action by public authorities without having their own right to file an application. A suggestion is informal, does not create a legal claim or participation in the proceedings, but obliges the competent authority to a due review of the matter raised. Thus, it is an important interface between the common good and the fulfillment of governmental duties.
Literature
- Kopp/Ramsauer, VwVfG, Commentary on the Administrative Procedure Act
- Keidel, FamFG, Commentary on the Act on Proceedings in Family Matters and Proceedings in Matters of Voluntary Jurisdiction
- MüKo-BGB, Volume 10, German Civil Code – Guardianship Law
Web links
- <a href="https://www.gesetze-im-internet.de/vwvfg/24.html”>§ 24 VwVfG – Establishment of the Facts
- <a href="https://www.gesetze-im-internet.de/famfg/23.html”>§ 23 FamFG – Suggestion and Application
- § 1896 BGB – Guardianship
Frequently Asked Questions
Who is entitled to make a suggestion for an official procedure?
In principle, any person is entitled to make a suggestion for an official procedure, who can credibly demonstrate a legitimate interest in an official decision or measure. Unlike an application, in which the applicant asserts specific rights, for a suggestion it is initially sufficient to provide a hint, a message, or the wish that an authority takes action, without it necessarily affecting one’s own rights. Many specialist laws, especially in administrative law, also allow third parties, such as neighbors, relatives, or even any person, to make a suggestion if public interests are involved. The eligible persons, however, vary depending on the area of law and the relevant legal provisions. In social legislation, for example, a suggestion is often explicitly intended for relatives, caregivers, and other close persons. However, the authority is only obliged to process it after a formal application is submitted or after further examination steps in the administrative procedure.
What are the legal effects of a suggestion to an authority?
A suggestion, unlike an application, is not a procedural action with a specific legal effect, but is received by the authority as a note or proposal. It therefore does not create an immediate obligation to initiate formal administrative proceedings or to issue an administrative act. However, the authority decides at its own professional discretion whether and to what extent to act on the suggestion. Legally, the person making the suggestion has no claim to the initiation or conclusion of an administrative procedure nor to a formal notice. But especially where the administration is obliged to act ex officio (the so-called official principle), a suggestion can trigger the authority’s duty to investigate, so that the authority at least reviews the facts on its own. The further processing or rejection of the suggestion is generally communicated informally only.
What formal requirements must be observed in a suggestion?
Generally, there are no fixed formal requirements for a suggestion unless specific procedural laws prescribe a particular form, such as written form or electronic transmission. A suggestion may be submitted orally, in writing, by telephone, or electronically, e.g., by email or via an authority’s online forms. For reasons of documentation and traceability, it is advisable to submit the suggestion at least in text form. The suggestion should describe the facts, the public concern involved, or the suspected legal violation in as much detail as possible to enable the authority to conduct a thorough review. Providing personal data is not mandatory, but can be helpful for possible follow-up questions from the authority.
Can a suggestion be withdrawn or amended without formalities?
Yes, a suggestion can be withdrawn or amended at any time without formalities, as long as the authority has not yet responded or a formal procedure has not been initiated. Since, unlike an application, it does not create formal obligations and does not necessarily trigger administrative proceedings, withdrawal or amendment does not create legal obligations for the person making the suggestion. However, if the suggestion has already led to official action or to an official investigation, it is usually within the authority’s discretion whether to continue or discontinue the procedure. In particular, for suggestions that affect public interests or contain suspicion of criminal offenses, the authority may be required to continue investigations regardless of withdrawal.
What options are available if the authority does not act on a suggestion?
Since there is no legal entitlement to have a suggestion processed or responded to, it is usually not possible to compel the authority to process or investigate it by means of legal remedies (such as objection or lawsuit). However, in cases of obvious inaction or indications of a breach of duty, it is possible to file an official complaint or refer the matter to higher or supervisory authorities. If there is a subjective public right to the initiation of proceedings (i.e., via an application instead of a suggestion), an action for failure to act in accordance with § 75 VwGO would be permissible. For suggestions involving criminal offenses, it is possible to file a criminal complaint, to which the principle of legality then applies.
What are the differences in legal context between a suggestion and an application?
The essential difference between a suggestion and an application is that an application represents a formal request for a specific official decision and usually can give rise to subjective rights, whereas a suggestion simply brings to the authority’s attention that it should act on its own initiative, without creating a legal claim to action or to an administrative act. An application is regularly subject to formal requirements and legal recourse rights, whereas a suggestion is mainly used for passing information or proposing official action. Party status is generally only established in many administrative procedures through an application, not through a suggestion.
Does a suggestion grant access to files or participation rights in official proceedings?
With a mere suggestion, the person making it generally does not acquire rights of participation in the official proceedings, including the right to inspect files. Rights of participation and file inspection are, according to the relevant procedural statutes (e.g., §§ 13 VwVfG, 29 VwVfG), generally reserved for parties to an administrative proceeding or applicants. Purely informal suggestions do not establish such a legal position. It may be different if a formal application or one’s own legally protected interest arises from the suggestion. Only then does the person making the suggestion become a party and can assert rights to file inspection or further procedural rights.
