Official objection – Introduction and definition of terms
Der Official objection is a term from German administrative law, which describes a narrowly defined form of correction by authorities within the administrative process. It refers to the possibility and obligation of an administrative authority to review its own administrative acts ex officio, i.e., even without an application or objection from an affected party, and, if necessary, to amend or revoke them. The legal basis is § 48 of the Administrative Procedure Act (VwVfG), which grants the authority the power to subsequently revoke or annul an unlawful administrative act—regardless of an initiative by the affected party.
Conceptual differentiation
The official objection differs from the regular objection under § 68 et seq. of the Administrative Court Code (VwGO), which serves as a formal legal remedy submitted by affected persons against burdensome administrative acts. The official objection is not an external legal remedy but rather an internal, official review by the authority, which is open-ended in terms of the result and can lead to the revocation, amendment, or confirmation of the administrative act.
Legal basis of the official objection
Administrative Procedure Act (VwVfG)
The most important legal basis for the official objection is § 48 VwVfG. This provision regulates the revocation of an unlawful, beneficial administrative act by the competent authority. The authority has discretion to revoke the administrative act in whole or in part—with effect for the past or for the future.
Revocation of unlawful administrative acts (§ 48 VwVfG)
According to § 48 para. 1 sentence 1 VwVfG, an unlawful administrative act that has conferred a right or a legally significant advantage may be revoked in whole or in part, with effect for the past or future, by the authority that issued it. Revocation may occur either upon application or, in the context of an official objection, also ex officio, i.e., without an application.
Discretion and legal limits
The discretion granted is limited by statutory assessments, the principle of legitimate expectation (§ 48 paras. 2 to 4 VwVfG), and the principle of proportionality.
Function and significance of the official objection within administrative proceedings
Correction of errors and legal certainty
The official objection primarily serves to correct errors that the authority itself made when issuing an administrative act. It is thus an important instrument of self-control for the administration and helps to establish material lawfulness and to maintain legal certainty in administrative proceedings.
Distinction from other correction mechanisms by authorities
In addition to the official objection, there are other correction mechanisms, such as the decision to reopen proceedings (§ 51 VwVfG), duty of review in cases affecting fundamental rights, as well as the possibility of revoking or annulling an administrative act (§ 49 VwVfG for lawful administrative acts).
Areas of application and procedure for an official objection
Initiation and implementation
An official objection can be initiated by the competent authority at any time after becoming aware of the unlawfulness of an administrative act. The authority independently reviews whether and to what extent the administrative act can be upheld. Here, the principle of lawfulness of administrative action and discretion with regard to the revocation are applied.
Involvement of the affected party
Since an official objection may have adverse effects for the affected person (e.g., in the case of reclaiming a payment that has been made), the affected person must generally be heard before a decision is made on revocation or amendment, in accordance with § 28 VwVfG.
Legal protection against measures within the scope of the official objection
If an adverse decision (e.g., revocation of a beneficial administrative act) is made in the context of an official objection, the affected person has recourse to the courts, generally by means of an action for annulment before the administrative courts after objection proceedings under the VwGO.
Particularities and restrictions on the official objection
Protection of legitimate expectations and revocation deadlines
The discretion of the authority is legally restricted by the principles of legitimate expectation (§ 48 paras. 2 to 4 VwVfG) as well as by specific revocation deadlines. Revocation may not occur if the affected person has relied on the continuation of the administrative act and this reliance, after balancing public and private interests, deserves predominant protection.
Claims for reimbursement and consequences of revocation
In the event that a beneficial administrative act is revoked as a result of an official objection, the authority may, under § 49a VwVfG, reclaim benefits that have already been granted (e.g., subsidies, grants). In this case, the statutory regulations on deadlines and protection of legitimate expectations are also decisive.
Distinction from analogous procedures in administrative law
Official objection in social law
The social administrative procedure contains similar regulations, in particular in § 44 of the Social Code Book Ten (SGB X) concerning the revocation of unlawful beneficial administrative acts ex officio.
Not a formal legal remedy
The official objection is not designed as a formal legal remedy but rather as an instrument of internal control by authorities and thus does not serve the individual legal enforcement by citizens, but the self-correction of the administration.
Literature and further references
For further in-depth study, it is recommended to consult relevant commentaries on the Administrative Procedure Act as well as the case law of the Federal Administrative Court, especially regarding issues of legitimate expectation and the exercise of discretion in official objections. The legal texts and official explanations also provide clarity on the objectives and limits of application of the official objection.
Summary
Der Official objection is a key instrument of internal control by authorities in German administrative law, enabling authorities to review the lawfulness of their own administrative acts ex officio and to correct them if necessary. Its application is strictly regulated by statutory provisions, particularly the Administrative Procedure Act, and is subject to potentially strict legal requirements, especially for the protection of legitimate expectations of affected parties.
Frequently Asked Questions
What deadlines apply for filing an official objection?
As a rule, the same deadlines apply for filing an official objection as for a regular objection, unless there are special statutory provisions. According to § 70 paragraph 1 of the Administrative Court Code (VwGO), the objection must generally be lodged within one month of notification of the administrative act. The period begins on the day the affected person is notified of the administrative act, for example, by a written decision. In the case of a public announcement, the period begins three days after publication. If a party can prove that they did not receive the notice, reinstatement to the previous state (§ 60 VwGO) could be requested, but strict formal requirements must be met. In principle, it should be noted that late objections are regularly dismissed as inadmissible unless exceptions exist, such as excusable missing of the deadline.
Who is entitled to file an official objection?
The person generally entitled to file an official objection is the addressee of the administrative act, i.e., the person or entity to whom the authority’s decision is directed and who is adversely affected by it. Other persons may also have a right to object if they are demonstrably directly and individually affected by the administrative act, such as neighbors in the case of a building permit. In certain cases, statutory representatives (e.g., parents for their underage children, guardians for persons under care) or authorized representatives may also file the official objection. It is essential to ensure that proper proof of representation is provided (§ 14 VwVfG). Unauthorized third parties have no right to file an objection.
What formal requirements must be observed when making an official objection?
Filing an official objection is not subject to any form requirements, i.e., it may be filed in writing, electronically (if the authority has provided for such access), in person at the responsible authority, or in exceptional cases even orally (§ 70 paragraph 1 sentence 1 VwGO). Nevertheless, it is recommended to lodge the objection in writing and with proof (for example, by registered mail or with confirmation of receipt) in order to avoid disputes over timely receipt. The objection should state the name of the objector, designate the contested administrative act, and ideally include a justification. A specific statement of reasons is not mandatory, but it speeds up processing and increases the chances of success.
What suspensive effect does the official objection have?
In principle, an official objection has suspensive effect under § 80 paragraph 1 VwGO, i.e., the contested administrative act may not be enforced until the objection procedure has been completed. However, there are statutory exceptions to this principle, for example in the case of enforceable measures to avert danger, performance orders in the area of tax administration, or building regulatory orders. In cases where immediate enforcement has been ordered in the public interest or because of overriding interests of other parties, the affected person may apply to the administrative court to have the suspensive effect reinstated. Therefore, it must always be examined which rules apply to the individual case.
What powers of review does the objection authority have?
In reviewing the administrative act, the objection authority is not limited to the reasons given by the objector but is obliged to consider the entire matter fully, both legally and factually (the so-called ‘full review in law and in fact’ provided for in § 68 VwGO). The authority may ascertain new facts, conduct a new investigation of the facts, and introduce new legal considerations. In exercising its discretion, the authority may make its own decision and is not limited to a review of legality, but may also examine the expediency of the administrative act. It is also authorized to annul, amend or confirm the contested administrative act in accordance with the application.
What are the legal consequences after completion of the official objection procedure?
At the end of the official objection procedure, an objection notice is issued, which constitutes a separate administrative decision pursuant to § 73 VwGO. Upon receipt of the objection notice, it is possible to file a lawsuit with the administrative court within one month if the objection has not been fully granted. If the objection is upheld, the administrative act is annulled or amended, and the affected person receives a new decision on the merits. If the objection is rejected, the contested administrative act remains unchanged. The objection notice itself contains both the decision and comprehensive reasons, as well as information on available legal remedies (so-called information on legal remedies) explaining the further legal steps available.
Can one waive an official objection and what are the consequences?
Waiver of an official objection is legally permitted and is referred to as a ‘waiver of legal remedies.’ If, after receiving the administrative act, a person expressly waives the right to file an objection, this also waives the preliminary procedure under §§ 68 et seq. VwGO. As a result, the administrative act becomes final and judicial review is generally excluded, unless, exceptionally, grounds for nullity exist or there is a possibility to reopen the proceedings. Any waiver should be carefully considered and documented in writing to avoid misunderstandings or ambiguities.
