Definition and legal basis of the nullity of administrative acts
Die Nullity of administrative acts refers in German administrative law to the condition in which an administrative act is without legal effect from the outset (ex tunc). Nullity lifts the usual presumption of the effectiveness of an administrative act (see Section 43 (1) of the Administrative Procedure Act – VwVfG) and means the administrative act is deemed invalid from the beginning. The regulations concerning nullity are found in Section 44 VwVfG as well as in corresponding provisions under state law for state administrative acts.
Requirements and elements of nullity
Absolute grounds for nullity
According to Section 44 (1) VwVfG, an administrative act is void if it suffers from a particularly serious defect and this is obvious given a reasonable assessment of all circumstances. Grounds for nullity are specified in Section 44 (2) to (5) VwVfG. The provision distinguishes between absolute and relative grounds for nullity:
Examples of absolute grounds for nullity
For example, the law specifies the following absolute grounds for nullity:
- Issuance of an administrative act by an authority lacking subject-matter jurisdiction in the form of a threat of punishment (Section 44 (2) No. 1 VwVfG)
- Substantive impossibility of the administrative act (Section 44 (2) No. 4 VwVfG), for example if a service is requested that is impossible by nature or by law
- Violations of law where a statutory provision expressly stipulates nullity
Relativity and obviousness of the defect
Not every defect leads to the nullity of an administrative act. What matters is whether the defect qualifies as particularly serious and is also obvious to an objective third party. A mere violation of procedural or formal requirements is usually insufficient.
- Particularly serious defect: This occurs if there is a violation of a provision so essential that the measure must be considered as non-existent.
- Obviousness: A defect is obvious if it immediately stands out to a reasonable third party upon examining the facts.
Legal consequences of nullity
Effect ex tunc
A void administrative act has no legal effect from the time of its issuance. It is to be treated as if it was never issued. The following applies:
- No obligations or rights arise from the administrative act.
- Even third parties do not need to rely on or observe the administrative act.
Handling in administrative and court proceedings
Nullity may be asserted by anyone. Courts and authorities must acknowledge nullity ex officio. No objection or appeal is required, as the administrative act is invalid from the outset.
Distinction from contestability
A defective administrative act is not automatically void—it is usually merely contestable. Thus, nullity is the exception. Contestable administrative acts remain legally effective until their annulment. The distinction between nullity and contestability is a core aspect of administrative procedure.
- Nullity: Invalid from the outset, no rights or obligations arise.
- Contestability: Remains effective until annulled, rights and obligations initially arise.
Special aspects and exceptional cases
Partial nullity
An administrative act may be partially void if the void portion can be separated and the remaining part can remain valid by law (Section 44 (5) VwVfG).
Nullity in special administrative areas
Some areas have specific nullity provisions, for example in tax law (Section 125 of the Fiscal Code), construction law, or civil service law. Here, special supplementary regulations apply in addition to the general provisions.
Remedy and confirmation of void administrative acts
A void administrative act generally cannot be remedied. In contrast to merely contestable, formally unlawful administrative acts, where defects are often curable (Sections 45, 46 VwVfG), nullity remains permanent. Any subsequent confirmation of the administrative act is ineffective.
Practical legal consequences and follow-up decisions
Nullity has wide-reaching implications for administrative actions:
- Official liability: Actions based on void administrative acts can give rise to claims for damages.
- Criminal law consequences: Measures based on void administrative acts are null and void, so any coercive measures taken are unlawful.
- Subsequent notices: If follow-up or long-term administrative acts are issued based on a void administrative act, these are also generally void.
Conclusion
The nullity of administrative acts is a crucial safeguard of the rule-of-law principle in German administrative law. It ensures that particularly grave violations of the law in administrative action do not have legal effect, thereby guaranteeing that the administration is bound by law. Carefully examining whether grounds for nullity exist is therefore central to the effectiveness and legal force of administrative acts.
Further keywords: Administrative act, administrative law, effectiveness, unlawfulness, challenge, legal force, Fiscal Code, official liability, Administrative Procedure Act.
Frequently Asked Questions
What is the significance of the nullity of an administrative act in administrative law?
The nullity of an administrative act means that, from the outset (ex tunc), the act has no legal effect. A void administrative act is treated as though it were never issued. It binds neither citizens nor the administration and generally produces no legal consequences, even if it was initially implemented or followed in practice. The determination of nullity can be made both by the authority itself (evident nullity) and by judicial decision. This is particularly important because void administrative acts do not acquire legal effect, cannot become effective through subsequent remedy, finality, or expiration of deadlines, and can thus be challenged or disregarded at any time—regardless of deadlines. In addition, third parties affected by the administrative act also have a right to seek a declaration of nullity.
How is the nullity of an administrative act established legally?
The determination of nullity is generally made either by the administrative authority itself, provided it recognizes the presence of a particularly serious defect (Section 44 (1) VwVfG) (evident nullity), or by an administrative court in corresponding proceedings (e.g., declaratory action). Any party involved may assert the nullity, since, in the event of a void administrative act, no legitimate expectation of its validity can arise. A formal determination of nullity is, however, only required by law in certain cases (Section 44 (5) VwVfG). In court proceedings, nullity can also be reviewed incidentally, for instance in the context of contesting a subsequent notice.
What substantive requirements must be met for nullity?
Nullity of an administrative act requires that there be a particularly serious defect that is obvious (Section 44 (1) VwVfG). The defect must be so grave in nature and extent that it justifies the assumption that the administrative act cannot, even in the interests of legal certainty and legitimate expectation, have any effect in legal life. Examples include the issuing authority’s extreme lack of jurisdiction, the complete absence of any statutory basis of authority, content that is impossible or contrary to public morals, or the disregard of fundamental procedural rules. Assessing the seriousness of the defect requires a balanced evaluation considering common practice and relevant case law.
What are the differences between nullity and mere unlawfulness of an administrative act?
Whereas a void administrative act is invalid from the outset (ex tunc) and has no legal effect whatsoever, a merely unlawful administrative act remains effective until it is revoked. Mere unlawfulness, unlike nullity, does not automatically result in ineffectiveness, but requires removal through an objection, action for annulment, or through a revocation order. Unlawful but effective administrative acts generally produce all the typical legal consequences of an administrative act until they are set aside, whereas void administrative acts can never have legal effects.
What specific grounds for nullity are provided by the Administrative Procedure Act?
Sections 44 (2) and (3) VwVfG govern specific, particularly significant grounds for nullity that always lead to the nullity of the administrative act. These include in particular administrative acts that are issued in writing or electronically but do not sufficiently identify the authority (Section 44 (2) No. 1 VwVfG), acts that violate public morals (Section 44 (2) No. 3 VwVfG), or administrative acts that are obviously not executable for factual reasons (Section 44 (2) No. 4 VwVfG). Conversely, Section 44 (3) VwVfG specifies cases in which nullity is excluded regardless of the seriousness of the defect, for example in cases of violation of essential procedural or formal requirements unless something else is expressly determined.
Who is entitled to invoke the nullity of an administrative act?
In principle, anyone affected by the administrative act may invoke its nullity, since a void administrative act has no legal effect. This also applies to persons who were not involved in the proceedings but whose rights are impaired by the void act. The legal consequence of nullity arises by operation of law and does not require the filing of a legal remedy or the existence of a specific declaration, which is also relevant for judicial reviews.
What is the relationship between nullity and finality?
Finality protects only valid administrative acts. An administrative act tainted by nullity cannot acquire formal or substantive finality. Even if a void administrative act is not challenged, it has no legal effect and finality cannot develop regardless of the passage of time or reliance on the act’s effectiveness. This is particularly relevant for administrative authorities and courts, as they are always—and even ex officio—obliged to examine and determine nullity and are not bound by a manifestly void administrative act.
