Concept and Principle of the Legality of Public Administration
Die Legality of Public Administration is a central principle of public law and refers to the obligation of the public administration to always act in accordance with the applicable law. This principle is derived directly from the rule of law and is explicitly codified in the constitutions of the federal government and the states. The administration must bind all of its actions to laws and other legal provisions (principle of legality).
Historical Development
The principle of the legality of the administration developed during the emergence of the modern constitutional state in the 19th century. With the replacement of absolutist forms of rule, the rule of law established the binding nature of all state power—including the administration—by law and statute. In German law, Article 20(3) of the Basic Law is a central point of reference: “The legislature shall be bound by the constitutional order; the executive and the judiciary shall be bound by law and justice.”
Systematic Classification
Principle of Legality and Principle of Opportunity
The principle of legality (binding by law) obliges the administration to act within the framework of the applicable law. This includes both formal and substantive law. In certain areas, such as police law, the principle of legality is supplemented by the principle of opportunity (discretion), which grants the administration room for maneuver within the boundaries set by law. However, this does not change the basic requirement for the administration to adhere to the law.
Binding by Law
According to Art. 20(3) Basic Law, § 36(1) Administrative Procedure Act, as well as other special legal provisions, the administration may only act if and to the extent that a law permits or prescribes it. Violations of legal binding generally render administrative measures unlawful.
Exercise of Discretion
Where laws grant the administration discretion, it must choose among several legally permissible decisions. Even here, the obligation to adhere to the legal limits applies (the so-called theory of discretionary errors, which regards exceeding, failing to use, or misusing discretion as unlawful).
Relevant Legal Sources
The most important legal sources for the legality of administration are:
- Basic Law (in particular, Art. 20(3) Basic Law)
- State constitutions
- Administrative Procedure Acts (e.g., the Administrative Procedure Act of the federal government and the states)
- Special laws (such as the Building Code, Police Laws, Social Codes, etc.)
- General administrative regulations and statutes
- European primary and secondary law
Significance and Implementation
Binding of the Administration to Law and Statute
The binding of the administration to law and statute encompasses two central dimensions:
- Substantive Legality: The administration may only take measures that are compatible with higher-ranking law (e.g., constitutional law, federal law, state law, EU law). The relevant legal provisions must be used as the basis for every measure and be observed.
- Formal Legality: Additionally, administrative acts must be taken in the prescribed procedure, with the required forms (e.g., written form, hearing requirements, reasoning obligations), and in compliance with jurisdiction.
Legal Protection and Oversight
The legality of administrative action is ensured by various control bodies:
- Self-monitoring by the administration (remonstrance, official supervision)
- Parliamentary oversight
- Legal protection by administrative courts
In accordance with Art. 19(4) Basic Law, citizens can seek judicial protection against unlawful administrative actions. During administrative enforcement, the court examines whether the challenged measures are both substantively and formally lawful.
- Ombudsman offices and Petition Committees
- European Court of Justice on matters of EU law
Consequences of Unlawful Administrative Action
Nullity and Contestability
A violation of legality may result in an administrative act being void (invalid) or contestable, depending on the severity and type of violation (§§ 44, 45 Administrative Procedure Act). An administrative act is void if it suffers from serious and obvious defects or violates good morals or public order. If it is merely contestable, the act remains valid until it is annulled by a court.
Claims for Damages and Official Liability
Unlawful conduct by the administration can give rise to liability for damages (§ 839 German Civil Code in conjunction with Art. 34 Basic Law) if third parties are injured in their rights by the misconduct.
Disciplinary Consequences
In cases of intentional or grossly negligent unlawful conduct, disciplinary measures may be taken against the individual involved.
Distinction from Other Principles
The legality of the administration is closely intertwined with other fundamental principles of public law. In particular, it must be distinguished between:
- Lawfulness (legality)
- Suitability (efficiency, thrift, economic viability)
- Proportionality
- Principle of protection of legitimate expectations
While suitability focuses on the “if and how” of administrative activity, legality puts compliance with statute and law at the center of all measures.
Legality of the Administration in EU Law
European primary and secondary law also establish the binding of the administration to the law. This applies both to implementation and application acts of EU law by member states, which are subject to the principle of effective legal protection and judicial review (Art. 47 Charter of Fundamental Rights of the EU).
Literature and Further Regulations
For a deeper examination of the principle of legality of the administration, the following statutes and commentaries are particularly relevant:
- Basic Law for the Federal Republic of Germany (Art. 20(3) Basic Law, Art. 19(4) Basic Law)
- Administrative Procedure Act (VwVfG)
- General administrative law, textbooks, and commentaries
- Administrative procedure law
Summary
Die Legality of Public Administration is the fundamental standard for all administrative action in Germany. It ensures the protection of citizens against arbitrary state interventions, secures control of the administration, and forms the basis of a functioning rule of law. This principle unites all levels of administrative execution from decision-making to oversight and simultaneously constitutes an enforceable right of the individual to adherence to statute and law.
Frequently Asked Questions
How does an administrative court review the legality of an administrative act?
A court reviews an administrative act according to the standard of legality of the administration. First, it examines whether the competent authority had jurisdiction to issue the challenged administrative act (local, subject-matter, and hierarchical jurisdiction). The court then checks whether procedural requirements, particularly the right to be heard (§ 28 Administrative Procedure Act) and other procedural rules, were observed. Concerning substantive law, it ensures that the relevant legal bases were properly applied (legal basis and its requirements). Moreover, the court verifies whether any statutory discretion was properly exercised or whether a discretionary error occurred. Finally, it assesses whether the act was formally correct (e.g., proper notification, reasoning obligations) and compatible with higher-ranking law, especially fundamental rights. The foundation of judicial review is generally the so-called “full review of the facts.”
What is the significance of the reservation of statutory authority and the principle of legality for the administration?
The reservation of statutory authority obliges the administration to base every burdensome measure or sovereign power on an explicit legal basis. This means that no administrative action may occur without statutory authorization, especially when fundamental rights are affected or interference with the individual rights of citizens is possible. The principle of legality (principle of legality) further requires the administration to act only within the framework of the law (primacy of the statute); administrative actions that contravene laws are unlawful and contestable. Both principles serve to limit and control state power and are central pillars of the rule of law as enshrined in Art. 20(3) Basic Law.
What is meant by errors of discretion in the review of the legality of administrative acts?
For administrative acts with discretion, the administrative court examines whether the authority has properly exercised its discretion. According to § 40 Administrative Procedure Act, three main types of errors of discretion are distinguished: failure to exercise discretion, excess of discretion (acting beyond the statutory limits of discretion), and misuse of discretion (contravening the statutory purpose of discretion or incorrectly weighing relevant factors). If there is a discretionary error, the administrative act is unlawful; in some cases, the court may oblige the administration to exercise its discretion again (so-called reduction of discretion to zero or action for an order to act).
Can an unlawful administrative act nonetheless be effective?
An unlawful administrative act is generally effective (§ 43(1) Administrative Procedure Act) as long as it is not annulled. This is based on the principle of finality of administrative acts to ensure legal and administrative certainty. Its effectiveness ends only when the administrative act is removed by withdrawal, revocation, or successful challenge. An act is only void under § 44 Administrative Procedure Act if it shows particularly serious defects, such as obvious nullity due to flagrant procedural errors or violation of public order.
What are the legal requirements for the revocation and withdrawal of an unlawful administrative act?
The withdrawal of an unlawful favorable administrative act is governed by § 48 Administrative Procedure Act. In principle, it is possible, but for favorable acts, it requires proof of unlawfulness, an exercise of administrative discretion, and, if necessary, the application of provisions for the protection of legitimate expectations. Revocation of a lawful administrative act is governed by § 49 Administrative Procedure Act and is only possible under the circumstances stated therein (e.g., reservation of revocation, subsequent change of facts or legal situation, public interest). In any case, both mandatory procedural provisions, especially the hearing of the affected party, and specific rules regarding the protection of legitimate expectations must be observed.
What role do fundamental rights play in the legal oversight of the administration?
Fundamental rights act as objective value decisions and subjective rights of defense against the administration. Every administrative measure must comply with the fundamental rights of the person concerned; otherwise, this constitutes a breach of the principle of proportionality or of specific fundamental rights, such as the general right of personality or the guarantee of property. The courts check whether interferences with fundamental rights are legitimized by statutory authority and, in particular, whether they meet the requirements of proportionality—suitability, necessity, appropriateness. If those limits are exceeded, an administrative act can be declared unlawful.
To what extent can factual administrative actions be legally reviewed?
Factual administrative actions that are not administrative acts within the meaning of § 35 Administrative Procedure Act (such as real acts) are also subject to legal review. Legal remedies exist if the measure interferes with fundamental rights or otherwise legally affects the individual. The court then examines whether the administration is bound by the legal requirements and, in particular, whether fundamental rights as well as the general prohibition of arbitrariness have been observed. Claims may exist for cessation, removal, or remediation of consequences, where the requirements of general administrative law—especially the necessity of statutory authority for intrusions—apply.
