Extraneous considerations (of the administration) – Meaning and legal framework
Concept and general definition
The term extraneous considerations (of the administration) in German administrative law refers to considerations that are taken into account when making administrative decisions, even though they lie outside the scope of decision-making provided by law. Such extraneous considerations must not be included in the administrative weighing process, as they contradict the purpose limitation of administrative actions as well as the principle of legality of the administration. Extraneous considerations are deemed a classic case of abuse of discretion and regularly result in the illegality of an administrative act.
Legal classification and fundamentals
Statutory anchoring
The obligation to make administrative decisions solely based on objective and legally relevant criteria derives from various fundamental principles of German administrative law. Central to this is the principle of legality (Art. 20 para. 3 Basic Law), which binds the administration to statute and law. The exercise of discretion is grounded in Section 40 of the Administrative Procedure Act (VwVfG) as well as in special statutory regulations that grant the administration discretionary powers. Here, the so-called theory of discretionary errorsrequires that discretion is exercised in accordance with duty , meaning it is neither exceeded, nor underused, nor misapplied.
Principle of purpose limitation
The principle of purpose limitation states that administrative measures may only be taken to pursue the purposes specified by law. This regularly follows from the relevant legal basis for authorization of an administrative act. Including extraneous considerations therefore often constitutes a violation of this principle.
Manifestations of extraneous considerations
In the course of administrative actions, extraneous considerations can take a variety of forms. Frequent types include:
Personal, arbitrary, or self-serving motives
If private, political, economic, or other motives unrelated to the purpose of the legal norm are made the basis of an administrative decision, these are extraneous considerations. Examples include favors for acquaintances or a restrictive measure based on personal antipathies.
Favoring or disadvantaging particular individuals or groups
The unequal treatment of individuals or groups based on criteria that cannot be objectively justified or are rooted in a discriminatory motive (so-called “favoritism decisions” or discrimination) are also considered extraneous.
Lack of orientation to the legally prescribed decision framework
Extraneous considerations also exist if the administration acts contrary to the statutory purpose, that is, decides for reasons other than those provided for by law.
Legal consequences of extraneous considerations
Illegality of the administrative action
If extraneous considerations are included in the decision-making process, this usually leads to the illegality of the respective administrative act. According to the theory of discretionary errors, even a single extraneous motive suffices to make the administrative action vulnerable to challenge. The consequence is generally the annulment or reversal of the administrative act in objection or obligation proceedings by the administrative court.
Distinction from other errors of discretion
In addition to extraneous considerations, there are further errors of discretion, such as exceeding discretion, underusing discretion, or indifferent exercise of discretion without an objective standard. Extraneous considerations are an expression of misuse of the discretion granted to the administration.
Proof and review of extraneous considerations
Duties of the administration
The administration is required to disclose the reasons relevant to its decision in the justification of the administrative act (Section 39 VwVfG). This serves to check whether extraneous considerations have influenced the decision-making process. The administrative court examines the reasons provided and may, in proceedings, uncover the factual bases of the decision.
Burden of proof and obligation to state a case
In administrative litigation, the claimant generally bears the burden of presentation and proof for the existence of extraneous considerations. However, misconduct by the administration, such as the lack of adequate reasoning, may lead to a relaxation of the burden of proof.
Examples of application from case law
Practically relevant rulings
The case law has repeatedly dealt with the issue of extraneous considerations. Examples include cases where building permits were denied on political grounds, regulatory orders were based on personal differences, or allocation decisions were not made on objective criteria. The administrative courts review whether the stated reasons are consistent with the intended statutory purpose.
Reference to guiding principles and precedents
Courts, such as the Federal Administrative Court, have made clear that an administrative act based on extraneous considerations is unlawful (e.g., BVerwG, Judgment of 19.11.1969, BVerwGE 34, 301). Such case law receives wide attention in administrative practice.
Special situations and exceptional cases
Errors of weighing in a bound administration
In the area of bound administration there is no room for extraneous considerations, since action is conclusively determined by law. Introducing such considerations renders administrative actions immediately unlawful.
Steering discretion and intended discretion
In the area of intended discretion it is important to note that the law often prescribes certain responses but still allows exceptions for objectively justified reasons. Even here, extraneous considerations are impermissible and constitute an abuse of discretion.
Impacts and significance in administrative practice
Importance for legal certainty
Extraneous considerations jeopardize legal certainty, transparency, and the predictability of administrative actions. The consistent exclusion of such considerations is intended to ensure an objective, neutrally bound, and non-discriminatory administrative practice.
Measures for prevention
Administrative employees are regularly trained regarding the proper handling of discretion in order to systematically avoid extraneous motives and to withstand judicial scrutiny.
Summary
Extraneous considerations represent a significant aspect of abuse of discretion in administrative law. They are incompatible with the binding of the administration to statute and law and lead to the unlawfulness of the respective administrative act. Case law and legal literature emphasize the requirement for objective, purpose-bound decision-making to ensure the integrity and traceability of governmental administrative action. The identification and prevention of extraneous considerations are central elements of modern administrative oversight and are vital for the enforcement of the rule of law.
Frequently asked questions
What are the legal consequences of taking extraneous considerations into account in administrative decisions?
If an extraneous consideration is taken into account in an administrative decision, this constitutes a violation of the prohibition of arbitrariness and the principle of binding to law and statute (Art. 20 para. 3 Basic Law) set forth in German administrative law. The consequence is, in particular, the illegality of the administrative act that was issued. If a discretionary or evaluative margin was improperly exercised through the adoption of extraneous criteria—i.e., criteria that are external or not aligned with the statutory purpose—this constitutes an abuse of discretion (Section 40 VwVfG). If the improper consideration was causal for the decision (causality), this regularly leads to the annulment of the administrative act by way of appeal or legal action (Section 113 para. 1 sentence 1 VwGO). Depending on the severity of the error, official liability under Section 839 BGB in conjunction with Art. 34 Basic Law may also be considered, provided damage has occurred.
How are extraneous considerations determined in court proceedings?
In court proceedings, the administrative court examines whether the challenged decision was based exclusively or primarily on objective considerations falling within the scope of statutory authority. This review focuses in particular on the internal decision-making process of the authority, which can regularly be discerned from the reasoning of the administrative act and, where appropriate, by evaluating the files (principle of official investigation, Section 86 VwGO). The initial burden is generally on the claimant to present specific indications of the existence of extraneous considerations (so-called requirement for substantiation). If an extraneous consideration cannot be directly identified, circumstantial evidence may also be used, such as contradictory actions, prior statements by authority representatives, or statistical anomalies. The courts are required to investigate ex officio and to fully examine the decision in this regard.
What are typical examples of extraneous considerations in German administrative law?
Classic examples of extraneous considerations include arbitrary treatment of individual applicants, consideration of personal likings or dislikings of an official, attempts to pursue purposes not provided for by law (for example, budgetary considerations in building permit matters), or outside influences (for example, inadmissible political pressure). Motives that bear no relation to the specific regulatory objective of the norm are also considered extraneous, such as the granting of advantages or disadvantages for reasons of ideology, origin, religion, or gender (Art. 3 para. 3 Basic Law).
What legal remedies are available against decisions based on extraneous considerations?
Affected parties may challenge an administrative act based on extraneous considerations by filing an objection (Sections 68 et seq. VwGO). If this does not succeed or if an objection procedure is not provided for, an action may be brought before the competent administrative court (Section 40 VwGO). In litigation, annulment of the administrative act (action for annulment, Section 42 para. 1 alternative 1 VwGO) or an order compelling the authority to issue the requested administrative act (action for a mandatory order) can be sought. Interim legal protection procedures may also be possible if immediate action is warranted (Sections 80, 123 VwGO).
What is the difference between an extraneous consideration and an underuse or overuse of discretion?
Extraneous considerations constitute an abuse of discretion, meaning the authority did not exercise discretion in accordance with the statutory purpose. By contrast, an overuse of discretion occurs when the authority issues an administrative act outside its statutory mandate; underuse of discretion occurs when the authority does not use its discretion at all and treats the case as if it had none (so-called ‘failure to use discretion’). All three types of errors can lead to the illegality of the administrative act (Section 114 VwGO), but in the case of extraneous considerations, the actual deliberation of the authority has been fundamentally misdirected.
What measures must authorities take to exclude extraneous considerations?
Authorities are required to make their decision-making processes and justifications transparent and comprehensible. This includes, in particular, comprehensive and careful documentation of the decision-making process in the official records, internal training of staff on proper and lawful decision-making, and the implementation of control and veto mechanisms (e.g., dual-control principle, legal review by internal legal departments). In addition, raising awareness with regard to adherence to laws and the rights of third parties is essential in order to exclude the influence of personal or institutional interests. Careful justification of the administrative act in accordance with Section 39 VwVfG can also significantly reduce the risk of including extraneous considerations.
