Objection in Administrative Procedure
Der Objection in Administrative Procedure is a central instrument of legal protection in German administrative law. It allows an authority to review the legality and expediency of an administrative act internally before judicial review takes place. The objection procedure is regulated in the Administrative Procedure Act (VwVfG) as well as supplementary special laws and serves as a mandatory or optional prerequisite (so-called preliminary procedure) for a subsequent action before the administrative court.
Legal Basis of the Objection
General Provisions
The legal basis for the objection procedure can primarily be found in Sections 68–73 of the Administrative Court Rules (VwGO). Supplementary provisions of the Administrative Procedure Act of the respective administrative level (e.g., VwVfG of the Federation or the federal states) also apply. The objection procedure is a formal, extrajudicial procedure that must be carried out before bringing an action for rescission or obligation, unless this is excluded by law.
Exceptions and Deviating Regulations
In certain areas, for example in the case of tax or social administration acts, special regulations from the Fiscal Code (AO) or the Social Code (SGB) apply. Furthermore, the legislator may exclude the objection procedure by ordinance or special legislation.
Function of the Objection
Function of Legal Protection
The objection is an essential component of administrative legal protection. It allows affected parties to defend themselves against adverse or refused administrative acts without having to immediately resort to the courts. This aims to relieve the burden on administrative courts and at the same time ensure a review by the administration itself.
Self-monitoring Function of the Administration
The objection procedure also serves the self-monitoring of the administration. The authority has the opportunity to review its own decisions for legality and expediency and, if necessary, correct them without judicial involvement.
Requirements for Filing an Objection
Contestable Administrative Act
An objection can generally only be filed against an administrative act that directly interferes with the rights of the affected party. This may concern adverse acts (e.g., penalty notices, fee notices) and the rejection of requested favorable administrative acts.
Eligibility to Object
An objection can only be made by someone who can claim to have their rights violated by the administrative act (§ 42 section 2 VwGO).
Deadline and Form
The objection must be filed within one month after notification of the administrative act in writing, on the record, or in electronic form (§ 70 VwGO). The relevant factor is a proper instruction on legal remedies. If this is missing, the deadline is extended to one year.
Process of the Objection Procedure
Filing the Objection
The objection is to be filed with the issuing authority or the authority responsible for objections. The objection must identify the administrative act to which it relates and disclose the identity of the objector. A statement of reasons is not mandatory but is advisable for practical reasons.
Involved Authorities
The objection procedure distinguishes between the original authority (which issued the original administrative act) and the authority responsible for deciding on the objection. The original authority first checks if it can remedy the objection itself. If it makes a positive assessment, it revokes or amends the administrative act in favor of the objector (so-called remedial decision).
If the original authority does not reach a positive result for the person concerned, it forwards the documents to the objection authority for further decision.
Decision on the Objection
The authority responsible for objections reviews both the facts and the legal situation in their entirety. It may confirm, revoke, or amend the administrative act. Its decision is announced through an objection notice. As a result, the objection may be fully granted, partially remedied, or fully dismissed.
Involvement of Third Parties
Third parties whose legal interests would be affected by the remedy are, according to § 71 VwGO, generally joined to the objection procedure and heard so that they receive an opportunity to be heard.
Legal Effects and Consequences
Notice of Objection
The notice of objection is an independent administrative act and forms the basis for a possible subsequent action for obligation or rescission before the administrative courts.
Effect of the Objection on the Administrative Act
An objection does not generally have a suspensive effect, unless otherwise stipulated by law or ordered by the authority (§ 80 VwGO). In certain cases, such as prohibition orders, the objection may, by law, have a suspensive effect.
Costs of the Objection Procedure
The costs of the objection procedure are determined by statutory regulations, particularly the Administration Costs Act and state-specific fee schedules. As a rule, costs are borne by the unsuccessful party.
Special Procedural Regulations
Exclusion of the Objection Procedure
Certain areas of law provide for the exclusion of the objection procedure (§ 68 paragraph 1 sentence 2 VwGO). In such cases, an action may be brought directly before the administrative court (so-called leap-frog action).
Involvement of Authorities
In federal or state administrative acts, different authorities may be responsible. The law provides for special procedural rules for some constellations.
Significance in Administrative Practice
In administrative practice, the objection procedure is an essential control instrument. It promotes a rule-of-law administration and helps to avoid court proceedings by often enabling an agreement or correction at this stage.
Literature and Further Information
- Administrative Court Rules (VwGO)
- Administrative Procedure Act (VwVfG)
- Fiscal Code (AO)
- Social Code (SGB X)
- Relevant decisions of the Federal Administrative Court
Summary
Der Objection in Administrative Procedure is a fundamental element of German administrative law for the purpose of effective legal protection. Its statutory procedure ensures the review of official decisions, allows for corrections at the administrative level, and, if necessary, prepares the legal proceedings. The objection protects citizens from incorrect or inappropriate administrative acts and serves efficient and rule-of-law administration.
Frequently Asked Questions
What deadlines must be observed when lodging an objection in administrative proceedings?
The deadlines for lodging an objection in administrative proceedings are prescribed by law and are generally set by § 70 of the Administrative Court Rules (VwGO). The objection must generally be filed with the issuing authority within one month after notification of the administrative act. The deadline usually begins on the third day after the administrative act was posted, provided it was issued in writing. In special cases, for example due to inadequate or incorrect legal instructions, the objection deadline is extended to one year (§ 58 VwGO). If the deadline is missed, the administrative act generally becomes legally binding, unless reinstatement into the previous status can be applied for and justified according to § 60 VwGO (e.g., for excusable missing of the deadline). It should also be noted that special laws may stipulate different deadlines from the general rule.
Does the objection need to be in a particular form?
There is no mandatory form required for the objection in administrative proceedings; however, for reasons of legal certainty, submission in writing or on the record at the competent authority is recommended. According to § 70 paragraph 1 sentence 1 VwGO, transmission by fax is also sufficient. Electronic objections must be provided with a qualified electronic signature to satisfy the requirement for written form, as far as this is prescribed by federal or state law. The objection must clearly indicate the challenged administrative act, the person lodging the objection, and the request. A justification for the objection is not strictly required, but is advisable so that the authority can review the arguments of the objector.
How does a lodged objection affect the validity and enforceability of the administrative act?
In principle, the objection does not have a suspensive effect under § 80 paragraph 1 VwGO, i.e., the contested administrative act generally remains valid and enforceable unless a suspensive effect is expressly provided by law or ordered by the authority. However, there are numerous exceptions: In certain areas (e.g., social law notices or certain regulatory orders), the objection has a suspensive effect by law. In cases where the objection does not have a suspensive effect, it may, in individual cases, be ordered by the authority responsible for objections or on application by the administrative court (§ 80 paragraphs 4 and 5 VwGO). The precise legal situation can vary according to specific statutory regulations.
Who is entitled to file an objection?
In principle, any person affected in their own rights by the contested administrative act (so-called eligibility to object) is entitled to file an objection. These are primarily recipients of the administrative act, but third parties may also object if they can establish that their own subjective rights are violated by the administrative act. Legal entities (e.g., companies, associations) and legal partnerships are also entitled to object, represented by their legal representatives. In certain situations, objections may also be lodged by authorized representatives or guardians. Minors may generally file an objection through their legal representatives.
What happens to the administrative procedure after lodging an objection?
After the objection is filed, the original authority first checks within the framework of a so-called remedial review whether the objector’s request can be fully granted. If this is not the case, the procedure is referred to the objection authority, which may be identical with the original authority or a superior authority (depending on state law and administrative structure). The objection authority conducts a comprehensive examination of the facts and the law (so-called full review of the merits and law). After completion of the review, either a remedial decision or an objection decision is issued, confirming, amending, or revoking the challenged decision. The objection decision must include information on rights of appeal to the administrative court.
Is it permissible to charge fees for the objection procedure?
The charging of fees for the objection procedure is generally permitted and regulated in many areas. The amount and basis of the fees are governed by special statutory provisions (for example, administrative cost laws of the Federation and the states or subject-specific cost laws). In certain areas, such as social law, the objection procedure is regularly free of charge. If the objection is successful, there is generally a claim for refund of fees paid. Costs may also arise for expenses and administrative effort, insofar as this is legally provided for.
