Concept and Significance of the Performance Order
Die Performance Order is a central administrative action in German public law, particularly significant in the context of administrative enforcement and general police and regulatory law. It represents a special form of administrative act by which an authority requires a natural or legal person to perform, tolerate, or refrain from a specific action. The performance order serves to implement public law duties and is based on special legislative empowerment, especially in police and regulatory laws as well as administrative enforcement law.
Legal Bases and Distinction
Legal Sources of the Performance Order
Performance orders are issued on the basis of federal and state statutory provisions. Important regulations can be found for example in:
– § 35 of the Administrative Procedure Act (VwVfG) as the definition of an administrative act,
– State police and regulatory laws (e.g., § 14 OBG NRW, § 9 PolG NRW),
– The administrative enforcement acts of the federal and state governments, which regulate the use of coercion.
Distinction from Other Administrative Acts
The performance order differs significantly from other administrative actions:
- Declaratory Order: Merely establishes a legal relationship, without obligation to act.
- Prohibitory Order: Prohibits a condition or an action.
- Performance Order: Requires a specific action (to do, tolerate, or refrain).
A key aspect of the performance order is therefore the obligation to take active action or refrain from action.
Types of Performance Orders
To Act, Tolerate, and Refrain
Performance orders can be classified according to the content of the required conduct:
- Order to Act (To Do): Directive to perform a specific action (e.g., removal of sources of danger).
- Order to Tolerate (Tolerate): Requirement to accept certain measures (e.g., toleration of a house search).
- Order to Refrain (Refrain): Directive to refrain from specific actions (e.g., prohibition of operations).
Typical Areas of Application
Performance orders are relevant in a wide range of public law fields, including:
– Hazard Prevention and Police Law: Order to avert dangers to public safety or order.
– Building Regulation Law: Directive to remove unlawfully constructed buildings.
– Environmental Law: Directive to restore lawful conditions after environmental damage.
– Social Law: Granting of benefits, review, and recovery in the context of transfer payments.
Requirements and Procedure
Legality of the Performance Order
The following requirements must be met for a performance order to be lawful:
- Legal Basis: The order must be based on statutory authorization.
- Certainty (§ 37 VwVfG): The required action must be clearly defined.
- Selection of Addressee: The obligation can be directed at the person responsible under the relevant provisions (e.g., disturber under police and regulatory law).
- Proportionality: The order must not disregard a less severe but equally suitable means and must be suitable, necessary, and appropriate.
- Form and Reasoning (§§ 37 ff. VwVfG): Formal requirements, such as written form and information on legal remedies, must be observed.
Procedure
Issuing a performance order is generally done by administrative act. The addressee receives a written or electronic notice stating the obligations to act or to refrain, and if applicable, a warning of payment and enforcement. A deadline for implementation is usually set.
Enforcement of the Performance Order
Means of Coercion and Enforcement
If the addressee does not comply with the performance order, the authority may employ administrative enforcement. This includes, among other things:
– Administrative Fine: Financial sanction to enforce compliance.
– Substitute Performance: The authority or a designated person carries out the required action at the expense of the obligated party.
– Direct Force: Use of physical force or aids for enforcement.
The regulatory provisions of the relevant administrative enforcement laws are decisive.
Legal Protection Options
Various legal remedies are available to affected persons against performance orders:
– Objection: An objection may be filed against the administrative act in certain areas of law.
– Action for Annulment: The performance order can be reviewed before the administrative courts via action for annulment.
– Interim Legal Protection: In urgent cases, interim relief can be sought by temporary injunction.
Practical Significance of the Performance Order
The performance order is the central instrument of administration for ensuring and restoring lawful conditions in the public interest. It ensures the enforcement of law in cases of individual breaches of duty, and serves to prevent danger to the public and to eliminate unlawful conditions. Due to its immediate interference with fundamental rights, it is subject to stringent legal requirements, particularly regarding the principles of clarity, proportionality, and legal protection.
Summary
The performance order is a specific administrative act rooted in public law, by which an authority enforces obligations by requiring action, tolerance, or omission. It is characterized by its direct binding effect and the possibility of administrative enforcement. Legal foundations, prerequisites, types, and procedures are clearly prescribed by law, ensuring comprehensive protection of affected persons through appropriate legal remedies and judicial oversight.
Frequently Asked Questions
What formal requirements must be observed when issuing a performance order?
In principle, the formal requirements of administrative procedure law apply to the issuance of a performance order, especially § 37 VwVfG (Administrative Procedure Act). The order must be sufficiently specific, meaning the addressee must be able to clearly understand which action, tolerance, or omission is required. Furthermore, a recognizable statement of reasons is needed, unless, exceptionally, the law expressly provides otherwise (§ 39 VwVfG). Written or electronic form is generally required, although the order may also be issued orally; however, written form is always recommended for purposes of evidentiary protection. Proper instructions on legal remedies must also be given, otherwise the time limit for lodging a legal remedy does not begin to run.
How does the performance order differ from the administrative act in general?
The performance order is a special form of administrative act in which the authority obliges the addressee to perform, tolerate, or refrain from a specific action. Unlike other administrative acts, such as declaratory or permissive administrative acts, the performance order is imperative, as it is always directed at specific conduct of the person concerned. Its key feature is the order to act, usually in the context of regulatory, building, or police matters. Notably, the performance order is characterized by its enforceability: if it is not complied with, it can be enforced by direct force or substitute performance.
What legal requirements must be met for a performance order to be lawful?
In principle, three requirements are necessary for the legality of a performance order: Firstly, statutory empowerment is required, i.e., the authority must be empowered by law, ordinance, or statute to issue the order. Secondly, discretion must be exercised properly—discretionary errors such as exceeding, failing to use, or abusing discretion must be avoided. Thirdly, the performance order must be proportionate, meaning it must be suitable, necessary, and reasonable to achieve the intended purpose. The procedure must also be observed, in particular the right to be heard under § 28 VwVfG and, if applicable, further participation rights.
What legal remedies are available against a performance order?
As a rule, an objection may be filed against a performance order, provided it is not excluded by special statutory provisions. If the performance order is combined with a threat of enforcement or enforcement measures, the affected person may also apply for interim relief at the administrative court in accordance with § 80(5) VwGO (Administrative Court Rules). In the main proceedings, an action for annulment (§ 42(1) VwGO) is available, provided the person concerned claims an infringement of their own rights by the performance order. In interim relief proceedings, it must be examined in particular whether there is a special interest in suspension and whether the order is manifestly unlawful.
How is a performance order enforced if the addressee does not act voluntarily?
If a performance order is not voluntarily complied with, the authority has various means of coercion at its disposal under the respective administrative enforcement laws. Common measures are administrative fine, substitute performance (the authority arranges for the required action to be performed at the cost of the obligated party), and direct force. Depending on the federal state and the circumstances of the case, a warning and possibly a time limit are required before applying coercive measures; these measures must regularly be justified and themselves be open to legal remedies. The choice of coercive measure is generally at the discretion of the authority and must comply with the principle of proportionality.
Can a performance order also be issued against uninvolved persons?
As a rule, a performance order may only be issued against the person who is deemed responsible under the relevant law, for example as a disturber under police law or as the obligated party to a hazard prevention measure. An order against completely uninvolved third parties is only conceivable in exceptional cases, for example, where so-called ‘non-disturbers’ may be held liable under police or regulatory provisions if action against the originally responsible party is demonstrably not possible or not possible in time (§ 9 PolG NRW). In addition, strict requirements of reasonableness and proportionality apply. An unlawful choice of addressee generally entitles the affected party to challenge the performance order.
