Definition and Meaning of the Military Complaints Ordinance
The Military Complaints Ordinance, abbreviated as WBO, is a central German federal law that regulates the formation and exercise of the right to complain within the armed forces and for reservists. It specifies the participatory and co-determination rights enshrined in Article 17a of the Basic Law and guarantees the possibility of having official measures reviewed by an independent body. The Military Complaints Ordinance thus establishes fundamental procedural rules for the internal legal protection system of the Bundeswehr.
Legal Basis and Scope
Statutory Basis
The Military Complaints Ordinance was enacted as an independent law by the Second Act Amending Provisions of Service Law of December 19, 1956 (Federal Law Gazette I 1956, 999) and has since been amended several times. It serves as the central legal source for the complaints procedure within the German armed forces. The current version is regularly updated to take account of new developments in constitutional, administrative court, and service law.
Scope of Application
The Military Complaints Ordinance applies to members of the Bundeswehr as well as reservists in active duty (§ 1 WBO). It does not apply to civilian personnel of the armed forces. In addition to active soldiers and reservists, the right of complaint can also be exercised by former service members, provided that the complaint relates to their former service position.
Content and Structure of the Military Complaints Ordinance
Fundamental Principles of the Right to Complain
The Military Complaints Ordinance ensures that soldiers have access to effective, tiered legal protection against official measures. It enables direct objection to personally relevant measures and regulations in the professional environment and provides a structured process for lodging and handling complaints. The right of complaint is a key element of the internal structure of the Bundeswehr and serves to protect against legal violations and arbitrariness.
Types of Complaints
Simple Complaint
The simple complaint (§§ 1-7 WBO) is directed against official measures, omissions, and decisions that affect the soldier directly. It aims to correct individual errors in decisions.
Disciplinary Complaint
The disciplinary complaint (§§ 17ff. WBO) concerns measures in connection with disciplinary actions. The focus here is on reviewing disciplinary measures such as reprimands, disciplinary arrest, and fines.
Complaints in Personnel Matters
In personnel matters (such as promotions, transfers, evaluations), it is important to note that certain decisions are regulated by special legal remedies, particularly under the Soldiers’ Act (SG) and the regulations on career paths.
Collective Complaints
The Military Complaints Ordinance also allows for collective complaints (§ 8 WBO), where several soldiers can jointly file a complaint, for example regarding group interests.
Procedural Process of the Military Complaints Ordinance
Filing the Complaint
The complaint must be submitted in writing or electronically (§ 6 WBO); in special exceptional cases, it may also be made orally for the record. As a rule, it must be filed within one month of becoming aware of the measure or its omission (§ 6 para. 1 WBO).
Jurisdiction and Stages of Appeal
The complaint is to be addressed to the next higher office via the immediate superior (§ 7 WBO). The procedure generally follows the principle of ascending channels of command, i.e., complaint authorities are involved in hierarchical military order. Once the stages of appeal have been exhausted, the complaint is finally decided or, if necessary, forwarded to the Federal Ministry of Defence.
The involvement of the Parliamentary Commissioner for the Armed Forces (§ 8 WBO) is possible if there are particular violations of basic rights or duties.
Investigation Proceedings
The body handling the case must thoroughly investigate the facts and make its own decision. Both the complainant and affected third parties must regularly be heard. The decision must be communicated to the complainant and fully justified (§ 11 WBO).
Legal Protection Before Court
If the military authority rejects the complaint, there remains the possibility of further review, especially by filing an application for judicial decision with the Military Service Court (§§ 17a-f WBO). This is a court-like administrative instance that is specifically responsible for service-related disputes involving soldiers.
Relationship to Other Legal Remedies
The Military Complaints Ordinance is the primary legal protection instrument in the area of military service law. It must generally be exhausted before recourse to the administrative courts is possible (exclusion of action in administrative proceedings as long as the complaint has not been unsuccessful, § 17a para. 2 WBO). Only after completion of the complaint procedure may recourse be taken to civil or administrative courts.
Special Regulations and Legal Consequences
Application and Participation Rights According to WBO
The Military Complaints Ordinance stipulates comprehensive rights to be heard, inspect files, and receive reasons for decisions. It also details the rights of trusted representatives, the Parliamentary Commissioner of the Bundestag, and elected soldier representatives (§§ 5, 8, 11 WBO).
Consequences of a Successful Complaint
If a complaint is upheld, the disputed measure is corrected. This may involve the withdrawal of a disciplinary measure, the amendment of an official assessment, or the rectification of an unlawful administrative decision.
Legal Protection and Protection Against Disadvantage
Complainants must not suffer any disadvantages in their further service relationship as a result of filing a complaint (§ 15 WBO). The Military Complaints Ordinance contains explicit provisions to protect against discrimination and to uphold the personality and dignity of complainants.
Significance and Purpose
The Military Complaints Ordinance is, in Germany, a central instrument for safeguarding the rule of law within the Bundeswehr. It is an essential component of internal leadership and protects the rights of soldiers vis-à-vis the military leadership and administration. By providing the opportunity to file complaints and to seek judicial review of official measures, the Military Complaints Ordinance makes a vital contribution to securing fundamental rights and strengthening legal protection in the military sphere.
Literature and Further Links
- Military Complaints Ordinance (WBO), current version: gesetze-im-internet.de
- Basic Law for the Federal Republic of Germany, Art. 17a GG
- Soldiers’ Act (SG)
- Case law of the Military Service Courts and the Federal Administrative Court
Note: The Military Complaints Ordinance is continually adapted to current legislative and case law developments. Regular consultation of the current laws and official notices is essential for its application.
Frequently Asked Questions
Who is entitled to file a complaint under the Military Complaints Ordinance?
Entitled to file a complaint under the Military Complaints Ordinance (WBO) is, in principle, any soldier whose personal rights or legal interests are affected by an official measure or its omission (§ 1 para. 1 WBO). This covers all soldiers of the Bundeswehr, regardless of rank or career path. The right to complain exists only if there is no exclusive jurisdiction of a military or civil court or if other special provisions, such as those concerning statutory representation under the Soldiers’ Participation Act, do not apply. It is important that, when submitting an application, an attempt must be made to demonstrate a more specific or individual impairment, as general official measures without individual relation are not actionable by complaint.
What deadlines must be observed when filing a complaint?
According to § 6 para. 1 WBO, a complaint must generally be filed within one month after notification of the measure or its omission. If this deadline is missed, proper handling of the complaint, especially in terms of any suspensive effect, is no longer guaranteed. However, the Military Complaints Ordinance allows for reinstatement into the previous status in exceptional cases (§ 7 para. 1 WBO), if the soldier was prevented from meeting the deadline without gross negligence. Failure to meet the deadline may result in the formal rejection of the complaint, unless the aforementioned exceptional circumstances apply and the application for reinstatement was submitted and justified in good time.
How is the procedure for a military complaint structured?
The procedure under the Military Complaints Ordinance is generally two-stage. First, the complaint is to be submitted to the next higher disciplinary superior (§ 5 para. 1 WBO – initial complaint). This person is obliged to review the complaint within one month and provide a final decision (§ 8 para. 1 WBO). If the initial complaint is unsuccessful or no decision is made within the monthly period, a further complaint (so-called subsequent complaint) can be submitted to the next higher superior or, where applicable, directly to the Federal Ministry of Defence (§ 9 WBO). The procedure is free of charge and there is no requirement to be represented by a lawyer. Throughout the entire process, administrative procedural principles, particularly the right to be heard, access to files, and the right to a fair hearing, must be observed.
What legal consequences result from a duly filed military complaint?
Filing a military complaint in due time does not by law have a suspensive effect on the contested measure (§ 17 para. 2 WBO), unless immediate enforcement was expressly not ordered. The challenged official measure therefore generally remains enforceable. If the complaint is upheld, both the measure and its effects are to be reversed as far as legally possible and permitted. If, however, the measure is set aside by the court or in subsequent proceedings, the soldier may be entitled to a civil law claim for reimbursement if financial damage was caused by the measure (§ 62 Military Disciplinary Code in conjunction with § 4 WBO).
In which cases is a military complaint inadmissible?
A military complaint is inadmissible in particular in cases where legal remedies are expressly excluded, such as questions regarding assessment guidelines, conscription, or measures that are attributable to internal organization without individual effect. Also, general official orders that affect all soldiers equally cannot be challenged under the Military Complaints Ordinance unless there is an individual violation of rights. Finally, admissibility lapses if the matter has already been finally decided by a court, a special legal procedure is prescribed, or the complaint deadline has been missed.
What is the significance of the right to be heard in the military complaints procedure?
The right to be heard is a fundamental procedural right in the military complaints procedure and is guaranteed by § 32 WBO. The complainant has the right to comment on the facts before a final decision is made, to submit motions for evidence, and to access the relevant files. Failure to observe this right generally results in the illegality of the decision and requires a new decision that addresses the right to be heard. Protection of the right to be heard also extends to calling oral hearings and providing the opportunity to present relevant documents or information.
What role does the Parliamentary Commissioner of the Bundestag play in the context of the Military Complaints Ordinance?
The Parliamentary Commissioner of the Bundestag has, in accordance with Art. 45b GG and § 7 Military Complaints Ordinance, a supervisory and advisory role, but not a decision-making role in the military complaints procedure. Every soldier has the right to directly and informally contact the Parliamentary Commissioner, without first having to exhaust the military complaints procedure (§ 7 paras. 1, 2 WBO). The military complaints procedure remains unaffected, so that complaints and submissions to the Parliamentary Commissioner do not replace compliance with WBO deadlines. The Commissioner can examine submissions, report grievances to the Bundestag and make recommendations, but cannot issue binding decisions.
