Objection procedure
Definition and Legal Classification
The objection procedure is an extrajudicial legal remedy anchored in administrative law, which allows an affected person to raise objections to administrative acts by authorities that are subject to judicial review before the legal process in the administrative courts is initiated. It serves as a preliminary procedure (also referred to as a ‘preliminary procedure under §§ 68 ff. VwGO’) and is regulated in Germany especially by the Administrative Procedure Act (VwVfG) as well as the Administrative Court Procedure Code (VwGO).
Purpose and Function of the Objection Procedure
The objection procedure pursues central objectives:
- Error correction: Administrative decisions can be reviewed and, if necessary, corrected internally by the authority without immediately involving the courts.
- Internal administrative control: The facts underlying the administrative act as well as the legal assessment are reviewed again by the original authority or a superior objection authority.
- Relief of the courts: By allowing authorities to remedy errors, court proceedings are often avoided or rendered unnecessary, thus relieving the judiciary’s resources.
Scope of the Objection Procedure
Scope of Application
The objection procedure in public law is provided primarily for onerous administrative acts. It often applies to decisions in the following areas:
- Social law (e.g., § 84 SGG)
- Administrative law under the VwGO (e.g., § 68 VwGO)
- Tax law (here: objection under § 347 AO, see separately)
- Aliens law, police law, building regulations law
Not all administrative acts are subject to an objection procedure; there are often exceptions in special statutory regulations, depending particularly on the federal state or special law.
Exclusion of the Objection Procedure
In certain cases, lodging an objection can be excluded by law. For example, some state laws in Germany allow for direct recourse to the administrative court by abolishing the preliminary procedure for specific types of administrative acts or jurisdictions.
Course of Procedure in the Objection Procedure
Filing an Objection
The objection must be filed within one month after notification of the administrative act, either in writing or for the record at the original authority (§ 70 para. 1 VwGO). The period is extended to one year if no instruction on legal remedies is provided or if it is incorrect (§ 58 VwGO).
Reasoning and Form
The objection can generally be made informally, most often in writing; a statement of reasons is not strictly required but is recommended to allow the authority to process the matter appropriately.
Examination by the Authority
- Self-review (Remonstration): The original authority reviews its decision again to determine whether it wishes to withdraw, amend, or uphold the administrative act (§ 72 VwGO).
- Submission to the Objection Authority: If the authority maintains its decision, the file is forwarded to the competent objection authority, provided such an authority is defined.
Decision and Objection Decision
The objection authority issues an objection decision, which either dismisses the objection, upholds it, or annuls or partially amends the administrative act. This decision is an independent administrative act and must include reasons and instructions on legal remedies (§ 73 para. 3 VwGO).
Legal Consequences of the Objection Procedure
Suspensory Effect
In principle, an objection does not have a suspensive effect (§ 80 para. 2 VwGO), unless this is expressly provided by law or granted by the authority. However, there are exceptions, for example in social law (§ 86a SGG), where the objection often has a suspensive effect.
Costs
If the objection is upheld, the objector is generally not charged any costs. If the objection is dismissed or rejected, an objection fee (fee according to the Administrative Fees Ordinance) may be charged, the details of which are regulated by the individual federal states.
Legal Process
If the objection procedure is unsuccessful, the next step is to file an action for annulment or a mandatory action before the administrative court (§ 74 VwGO). The objection decision is a prerequisite for this, unless the preliminary procedure is legally dispensable.
Special Forms and Special Provisions
Objection Procedure under Social Law
In social administration procedure, § 84 SGG regulates the design of the objection procedure. Here, there are sometimes independent deadlines and particularities, for example, a partial administrative obligation to carry out a preliminary procedure.
Objection in Tax Law
In tax law, the objection procedure corresponds to the appeal procedure (§§ 347 ff. AO). Here, too, the taxpayer has the opportunity to file an objection against tax assessments within one month.
Example of Application: Police and Public Order Law
In police and public order law in many federal states, the objection procedure has been partially abolished or is available only for selected subject areas in order to expedite proceedings.
Difference: Objection Procedure and Appeal Procedure
While the objection procedure is mainly applied in general administrative proceedings, the term ‘appeal’ (Einspruch) is often used as a legal remedy in tax or administrative offences law. Separate statutory provisions apply here.
Legal Foundations
- Administrative Procedure Act (VwVfG)
- Administrative Court Procedure Code (VwGO), especially §§ 68-73
- Special laws such as the Social Code (SGB) and the Fiscal Code (AO)
Significance and Evaluation
The objection procedure is a central component of the system of legal protection in administrative law. It strengthens the principle of proportionality, enables effective, low-threshold legal protection, and ensures that errors or misunderstandings can be clarified at the internal administrative level. At the same time, it serves a filtering function and improves the clarification of facts before resorting to the courts. However, statutory exceptions and simplifications require a differentiated application in the various areas of law.
References
- Kopp/Ramsauer, VwVfG, Commentary
- Schoch/Schneider/Bier, VwGO, Commentary
- Sodan/Ziekow, Administrative Law
Conclusion: The objection procedure is a comprehensively regulated and significant part of German administrative practice and makes a fundamental contribution to a legally structured execution of administration. Its precise design and applicability depend primarily on the respective authority, the area of law concerned, and the relevant legal provisions.
Frequently Asked Questions
What is the deadline for filing an objection and how is it calculated?
The deadline for filing an objection is generally one month and starts with the notification of the administrative act (§ 70 para. 1 VwGO). Notification usually occurs with the delivery of the notice. If the notice is sent by regular mail, it is deemed to be delivered after three days, unless it can be proven that the letter reached the recipient at a later date. If the deadline ends on a Saturday, Sunday, or public holiday, it is extended to the next working day (§ 57 para. 2 VwGO in conjunction with § 222 ZPO). Within this period, the objection must have been received by the competent authority; it is not sufficient for it to have been merely sent. If special types of delivery (such as the postal delivery certificate) are used, attention must be paid to being able to provide proof of receipt. The calculation of the deadline is carried out according to the provisions of §§ 187 ff. BGB.
In what form must the objection be lodged?
The objection can be submitted in writing, electronically with a qualified electronic signature, or, if permitted by the objection authority, for the record (§ 70 para. 1 VwGO). Sending a simple fax is usually sufficient, provided the document is personally signed. A mere phone call or an informal email without a qualified signature is not sufficient. When sent electronically via De-Mail with confirmed secure login, this also satisfies the written form requirement. It must be clear against which administrative act the objection is directed; however, a statement of reasons is not strictly necessary at first, although it is recommended to improve the prospect of success.
Can an objection be filed by a representative?
Yes, in principle, the objection can also be submitted by an authorized representative (§ 14 VwVfG). If the actions of the representative are obvious and clearly identifiable as such, the submission of a written power of attorney is not mandatory; however, the authority may request it. If the representative is a lawyer, the power of attorney is regularly presumed; otherwise, proof may be required in case of dispute. If a person is incapacitated or has limited legal capacity, the legal representative must file the objection.
What effect does an objection have on the challenged administrative act?
According to § 80 para. 1 VwGO, an objection generally has suspensive effect, meaning that implementation of the administrative act is initially stayed by filing an objection. However, there are exceptions, such as orders for immediate enforcement or in specially regulated cases in law (§ 80 para. 2 VwGO, e.g., in police law measures or certain tax administrative acts). In cases of urgency or overriding public interest, the authority can order immediate enforcement with separate reasons. In such cases, legal protection against immediate enforcement must, if necessary, be sought by applying under § 80 para. 5 VwGO at the administrative court.
Does the objection have to be substantiated in detail?
A statement of reasons is not strictly required for the validity of the objection (§ 70 VwGO). It is sufficient if the intention is recognizably aimed at the annulment or amendment of the administrative act. For procedural efficiency, a prompt, specific, and complete reasoning is nevertheless advisable, as it enables the authority to examine the arguments of the objector and to consider them in the remedial decision. The reasoning can be submitted or supplemented until the conclusion of the objection procedure.
How does the administrative objection procedure work?
After the objection is filed, the original authority first examines whether it can remedy the objection (§ 72 VwGO). If a remedy is not possible or the objection is assessed as unfounded, the matter is forwarded to the objection authority, which reviews it independently and decides by issuing an objection decision. In the administrative procedure, the authority is required to fully investigate the facts of the case ex officio (§ 24 VwVfG), the parties must be heard (§ 28 VwVfG), and legal remedy deadlines must be observed. The objection decision must include information about available legal remedies; only after notification of this decision may legal action be brought before the administrative court within one month.
What costs can arise in the objection procedure?
The cost regulations in the objection procedure depend on the relevant administrative law; usually, administrative fees pursuant to the respective State Administrative Fees Act or special statutory provisions are charged. The obligation to bear costs and fees generally arises when the objection is dismissed (§ 80 VwVfG, corresponding state provisions); if the objection is fully successful, the party does not bear any fees. As a rule, there is no right to reimbursement of necessary expenses in the objection procedure, unless reimbursement is provided by law or there is a special case of equity. Legal remedy may also be sought against the cost decision.
