Official Assurance – Definition, Legal Basis and Significance
Definition and General Classification
The official assurance is a significant legal concept in German administrative law. It denotes the binding declaration by an authority towards one or more persons to undertake or refrain from a specific administrative action in the future. The official assurance serves as an instrument to establish legal certainty and protection of legitimate expectations in the relationship between citizens and the administration. It is particularly relevant in the area of administrative procedure law.
Types and Distinction
Assurance in contrast to Administrative Act
The official assurance must be distinguished from other forms of administrative action, particularly from the administrative act. While the administrative act regulates an individual case directly (§ 35 VwVfG) and produces immediate legal effects, the assurance relates to a future administrative action. An assurance can also have a binding effect, but only regarding the announced future measure.
Assurance and Information
An official assurance must be distinguished from official information. While official information merely provides non-binding information about the application of the law or a factual circumstance, the assurance contains the authority’s obligation to act in a specific way.
Ancillary Provisions: Assurances, Assurances, Preliminary Decisions
Within the category of official assurances, the assurance as defined in § 38 VwVfG is of particular importance. It constitutes a specifically regulated form of official assurance and obliges the authority to issue a specific administrative act in the future, provided all legal requirements are met. The difference to assurances in general lies in the fact that the assurance is directed at an administrative act, whereas other assurances can concern different administrative actions.
The preliminary notice and the advance decision also play a role in connection with official assurances, but they represent separate administrative instruments with specific legal structures.
Legal Foundations
Administrative Procedure Act (VwVfG)
The decisive legal basis is § 38 of the Administrative Procedure Act (VwVfG), which regulates the assurance as a special form of assurance:
- § 38 Para. 1 Sentence 1 VwVfG: “The assurance of an administrative act is only effective with written confirmation by the authority.”
- Para. 2: Emphasizes the binding effect of the assurance for the authority and describes the requirements and limits of this binding effect.
- Para. 3: Regulates the revocability and withdrawal of the assurance as well as its consequences.
In addition, many special laws (e.g. SGB, AO, BauGB) contain additional or divergent rules on official assurances.
Binding Effect and Protection of Legitimate Expectations
Upon receipt of a valid official assurance, a basis of trust is established for the beneficiary. This binding effect of the administration serves the principle of the protection of legitimate expectations and planning certainty in administrative procedures.
Requirements for effective assurances
The following formal and substantive requirements apply to the effectiveness of an official assurance, particularly an assurance:
- Authority: The authority giving the assurance must be objectively and locally competent.
- Form: The assurance must be given in writing.
- Sufficient Determination of Content: The declared measure must be sufficiently determinate.
- No Violation of Law: The assured measure must not violate superior law.
- No Grounds for Revocation: Legally provided grounds for revocation or withdrawal must not be present.
Legal Effect and Limits
Binding Effect
Upon effective issuance, a legal obligation arises for the administration. The authority must carry out the assured action if the further requirements are met. However, the binding effect may be removed by revocation or withdrawal in accordance with § 38 VwVfG.
Revocation and Withdrawal
An official assurance that has already been granted may be revoked or withdrawn only under the conditions provided by law. This is particularly possible if significant factual or legal circumstances subsequently change, or if the assurance was obtained through deceptive statements. In the event of revocation, claims for compensation exist if the beneficiary has made arrangements in reliance on the assurance (§ 38 Para. 3 VwVfG, § 48 ff. VwVfG).
Consequences of Noncompliance
If the authority does not comply with a legally binding assurance, the beneficiary has a right to the assured administrative action. If necessary, an action to compel performance can be brought before the administrative court to enforce the assurance.
Transfer of Assurances
The transfer and application of official assurances often occur in approval procedures in various areas of law, e.g., building, environmental, commercial, or social law.
Significance in Administrative Practice
Function
Official assurances are a central component of planning and investment projects. They provide early legal clarity and safeguard investments through binding declarations by the administration.
Examples of Application
- Land-use planning: Assurances regarding a future development plan
- Subsidy law: Assurance of future granting of public funds
- Approval procedures: Assurances with regard to future granting or amendment of approvals
Typical Problem Areas
- Unclear or prematurely given assurances that violate mandatory law
- Revocation or refusal for budgetary reasons
- Disputes over the scope and effectiveness of the binding effect
References and Further Regulations
- Administrative Procedure Act (VwVfG), §§ 35, 38, 48, 49
- Federal Constitutional Court, Decisions on Assurances
- Commentaries and Administrative Lexicons on Administrative Law
Conclusion
The official assurance is an important instrument in German administrative law to balance legal clarity and flexibility in administrative action. Its structuring, binding effect, and the requirements for its effectiveness are precisely regulated by law. It serves to establish trust and planning certainty and is highly relevant in practice for both the administration and affected persons. Careful compliance with legal requirements is essential for the effectiveness of an official assurance.
Frequently Asked Questions
What are the legal consequences of revoking an official assurance?
Revoking an official assurance constitutes an administrative act, which is only permissible under the conditions of the Administrative Procedure Act (in particular § 48 and § 49 VwVfG). As a rule, assurances are binding on the authority, so revocation is an exception. Revocation requires a legal basis, which is usually set out in the assurance itself as a reservation of revocation. If such a reservation is lacking, revocation is only permissible if holding on to the assurance is unreasonable in the public interest. In such cases, a balancing of interests must also take place. Revocation may also give rise to claims for damages for official liability (§ 839 BGB in conjunction with Art. 34 GG) if the beneficiary has already made arrangements in reliance on the continued existence of the assurance. It is always necessary to distinguish between a lawful and an unlawful assurance, as the withdrawal or revocation of a lawful, beneficial assurance is always handled more strictly.
Is an official assurance legally binding and under what conditions?
An official assurance is legally binding if it has been formally issued correctly, in particular by a competent authority, in writing or text form and in compliance with the relevant procedural rules. It must be sufficiently certain and provide a binding decision or a future administrative behavior. An assurance becomes binding in principle only by express declaration to the person concerned. The prerequisite for binding effect is also that there are no legal obstacles such as a violation of mandatory law or good morals. The authority is bound by the assurance unless statutory grounds for amendment or withdrawal are present. The beneficiary may invoke principles such as the protection of legitimate expectations, provided that arrangements have already been made in justified reliance on the assurance.
Can an official assurance be subsequently subject to conditions?
Subsequent conditions to an official assurance are in principle only possible if this is expressly provided for by law, or if an appropriate reservation of revocation or amendment was included in the original assurance (§ 36 VwVfG). Without such reservations, a change to the assurance to the detriment of the beneficiary is only permissible if a compelling public interest requires it and no legitimate interests of the person concerned stand in the way. The stage of the assurance is also relevant: is it still information or has a binding assurance been granted in the form of an administrative act? In the latter case, the subsequent addition of conditions is to be classified as an administrative act and is subject to the corresponding procedural requirements, such as a hearing and, if applicable, legal protection.
In which cases can an official assurance be withdrawn?
The withdrawal of an official assurance is conclusively regulated in administrative procedure law. Withdrawal is particularly possible if the assurance was unlawful (§ 48 Para. 1 VwVfG) and the public interest outweighs maintaining the assurance. In this regard, the authority must specifically examine whether the beneficiary has made disposals of assets in reliance on the assurance; in such cases, their legitimate expectations must be weighed. Withdrawal must not take place if the addressee’s reliance on the continued existence of the assurance is worthy of protection and the public interest in withdrawal is subordinate in the individual case. In addition, deadlines for withdrawal may exist which must be observed.
Is there a right to the granting of an official assurance?
A right to the granting of an official assurance exists only if a corresponding statutory entitlement is present or if discretion must necessarily be exercised in the citizen’s favor. In most cases, the decision on an assurance lies within the discretion of the authority. Nevertheless, the authority is bound by the principle of equality under Art. 3 GG and must exercise discretion in an appropriate, non-arbitrary, and proportionate manner. If a right exists on the basis of a statutory provision, e.g. within approval procedures once all requirements are met, the citizen can compel the assurance. In other cases, there is merely a right to a lawful exercise of discretion.
Can an official assurance lapse by effluxion of time?
An official assurance can lapse by the passage of time if it has been expressly limited in duration or if the limitation results from the context. After the period has expired, the assurance no longer has a binding effect. The occurrence of a resolutive condition (e.g., failure to perform a specific action by a specified deadline) can also lead to the lapse of the assurance. If the assurance was tacitly granted for a specific duration (e.g., for the duration of a specific procedure), its validity also ends at the expiry of that period or upon occurrence of the event. An assurance of unlimited duration may exceptionally lapse if the facts or legal situation change fundamentally, and binding effect is unreasonable for public interest.
What legal remedies are available against the revocation or withdrawal of an official assurance?
Against the revocation or withdrawal of an official assurance, legal recourse is generally available to the affected party. Affected persons can file an objection against the revocation or withdrawal notice within the statutory time limits (§ 68 ff. VwGO), provided that state law prescribes a preliminary procedure. If the objection is unsuccessful, an action may be brought before the competent administrative court. In the lawsuit, the unlawfulness of the revocation/withdrawal can specifically be asserted and the continued validity of the assurance claimed. Interim legal protection according to § 80 Para. 5 VwGO (order for suspensive effect) is also possible if the revocation or withdrawal is immediately enforceable.
