Term and Legal Classification of the Organizational Act
The organizational act is a central legal concept in administrative law and is of significant importance, particularly in the German administrative legal system. It describes an official measure by which organizational facts, procedural structures, or decision-making powers within an administrative unit are regulated. Organizational acts differ from other official actions in that they do not have direct external effect but are intended to structure the internal organization of the administration or a public law corporation.
Definition of the Organizational Act
An organizational act is a sovereign measure that serves to specify, determine, and control the internal structural and procedural organization of an authority. It has no immediate legal effect on citizens, but its legal effect is limited exclusively to within the administrative unit or corporation itself.
Characteristic Features
Organizational acts exhibit the following key features:
- They concern exclusively the internal organization and order of the administration.
- They must be distinguished from administrative acts, as they do not have external effect.
- They are not directed to an external group of recipients, but rather to positions or organs within the administration.
- They regularly regulate the structure (positions, departments, administrative hierarchy) and processes (responsibilities, procedures, decision-making powers) within the administrative unit.
Legal Dogmatic Distinction of Organizational Acts
Distinction from Administrative Acts
Organizational acts must be distinguished from administrative acts under § 35 of the Administrative Procedure Act (VwVfG), which always have external effect and are directed at specific recipients outside the administrative organization. While administrative acts serve to realize legal relationships between administration and citizens, organizational acts regulate the relationship between organs, positions, or officials among themselves and within an administration.
Distinction from Statutory Instruments and Bylaws
Organizational acts must also be distinguished from statutory instruments and bylaws, as the latter are legal norms with general external effect and regularly require statutory authorization. The organizational act is distinct in that it serves exclusively the internal order and self-determination of the administrative unit.
Distinction from Organizational Instructions
Organizational instructions typically have an individualized group of recipients and do not necessarily require the will of the entire organization. They may form part of the organizational act, but an organizational act is broader, aiming at the entire organizational structure or substantial parts of the unit.
Legal Sources and Legal Basis
Constitutional Foundations
Article 20(2) of the Basic Law (GG) stipulates the principle of democracy, whereby state authority is structured through law and organization. Similarly, the principle of separation of powers and the administrative organization’s right give administrative units a certain degree of organizational autonomy.
Ordinary Laws
Many details of internal organizational regulations are based on statutory provisions such as the Federal Civil Servants Act (BBG), the state civil servant laws, the Federal Minister Act, or regulations specific to individual special laws.
Organizational Sovereignty and Autonomy
Authorities and corporations generally have the right to determine their internal organization independently, provided that no mandatory legal requirements oppose this. The scope of this organizational sovereignty is determined by the nature and scope of each administrative unit.
Forms and Types of Organizational Acts
Structural Organizational Acts
Structural organizational acts regulate the vertical and horizontal subdivisions of an authority, for example, the formation of departments, divisions, offices, or other organizational units and their areas of responsibility.
Process Organizational Acts
Process organizational acts concern the design of internal business processes, such as the determination of responsibilities, decision-making paths, reporting relationships, and workflow procedures.
Other Manifestations
- Work Distribution Plans
- Rules of Procedure
- internal administrative guidelines and instructions
These forms are generally classified as organizational acts, provided they do not go beyond purely internal order.
Legal Effects and Legal Significance
Internal Binding Effect and External Effect
As an internal measure, organizational acts bind the affected organizational units and officials. External parties, particularly citizens or third parties, cannot directly invoke or challenge an organizational act. The legal effect is thus limited to the internal relationship within the authority.
Effectiveness and Publication
Organizational acts become effective through official issuance, publication in internal official bulletins, or via internal notification. In contrast to administrative acts or legal norms, publication to the outside is generally not required.
Legal Protection Against Organizational Acts
As organizational acts do not have external effect, they are generally not subject to legal challenge in administrative courts (§ 44a Administrative Court Procedure Act, VwGO – exclusion of appeals against procedural acts). Exceptions only exist if an organizational act has indirect external effect.
Case Law and Literature
Case law regularly confirms the lack of external effect of organizational acts (see BVerwG, judgment of 25.11.1960, Case No. VII C 464.59). According to established opinion, the order of internal administration is fundamentally a matter for the administration itself, as long as the laws do not provide mandatory requirements.
Further literature also deals with the role of the organizational act in the context of organizational directives, the assignment of tasks, and the internal management of public administration.
Note: The organizational act is a central element of administrative organization. Comprehensive knowledge of it is indispensable both for legally compliant structural and procedural organization and for understanding the internal structure of administration. It makes a significant contribution to effective and lawful administrative action without having immediate external effect.
Frequently Asked Questions
Who is legally required to maintain an organizational act?
In principle, public bodies and organizations are required to maintain an organizational act if relevant legal provisions – such as those arising from archival law, data protection law, or administrative procedural law – so require. In Germany, documentation of organizational processes, for example in the context of office management or file administration, is particularly stipulated in the public sector by the administrative regulations of the federal states. These provisions serve to ensure traceability and transparency of official actions and lay down binding rules as to the form, content, and retention period of organizational acts. For private institutions, comparable obligations may arise from commercial law (German Commercial Code, HGB) or tax regulations such as the Fiscal Code (AO), if they need to document organizational processes that are legally relevant or subject to review.
What legal requirements exist regarding the content of an organizational act?
Legal requirements for the content of an organizational act primarily arise from specific statutory provisions, such as the Administrative Procedures Act (VwVfG), the respective state archival laws, as well as data protection legislation such as the General Data Protection Regulation (GDPR). All essential organizational decisions, changes to the structural and procedural organization, orders, service instructions, organizational charts, and minutes, insofar as they are crucial for legal traceability and control, must be documented. In addition, procedural descriptions and rules of responsibility must be included. Documentation must be carried out in such a way as to ensure legal verifiability and transparency; this includes proper chronology as well as continuous, complete, and tamper-proof record-keeping.
Are there legal requirements regarding the retention period for organizational acts?
Yes, there are different statutory retention periods for organizational acts depending on the area of regulation. In the public sector, these are governed by the archival laws of the federal states and the respective administrative regulations, which often provide for a minimum retention period of ten years, and, in the case of particularly significant matters, may even require permanent archiving. In the private sector, for example under commercial law (§ 257 HGB) or tax law (§ 147 AO), the retention period for relevant documents is generally six or ten years. After these periods have elapsed, data protection-compliant destruction must be ensured, with any potential overlaps with audit, civil law, or social security requirements taken into account.
How can confidentiality and data protection be legally ensured for organizational acts?
The protection of personal data in organizational acts is subject to the requirements of the GDPR as well as the Federal Data Protection Act (BDSG). The processing and storage of personal data may only take place if there is a legal basis or the data subjects have given their consent. Within the organization, technical and organizational measures (TOM) must be taken to ensure the confidentiality, integrity, and availability of the file, such as access authorizations, encryption, and logging of usage history. Disclosure of documents to third parties, for example in the context of audits, is strictly permitted only on a legal basis or with consent.
What legal requirements apply to the digitization of organizational acts?
When digitizing organizational acts, it must be ensured that the digital form preserves the legal evidentiary value of the original documents. To this end, legal regulations such as the GoBD (Principles for Proper Keeping and Preservation of Books, Records, and Documents in Electronic Form) as well as specific requirements of the Administrative Procedures Act and the respective archival laws must be followed. Digital organizational acts must be stored in a manner that is audit-proof, protected against unauthorized access, and unchangeable (tamper-proof). It is also necessary to record all processing procedures in a traceable manner. The IT infrastructure used must comply with the state of the art and specific legal requirements.
How can the legally compliant destruction of organizational acts be ensured?
Legally compliant destruction of organizational acts first requires adherence to the applicable statutory and archival retention periods. Afterwards, the file must be destroyed in such a way that restoration is impossible – usually by destruction using shredders in accordance with DIN 66399 for paper documents or specialized technical procedures for digital data. The destruction process must be properly documented. Particular attention must be paid to data protection requirements: deletion processes must be traceable and, if necessary, demonstrable upon request. In the public sector, following expiration of the retention periods, archival considerations generally must also be checked, such as whether the files must be offered to the competent archive before final destruction takes place.
Who is legally entitled to access an organizational act?
Access to organizational acts is clearly regulated by law. In principle, only those persons who, in the context of their official duties, have a legal right to inspection are entitled to access; these are usually employees of the authority with the appropriate responsibility. External access, for example by audit bodies such as courts of auditors or data protection officers, is only permitted within the framework of statutory audit rights. For the release of documents to third parties, for example in the context of judicial proceedings or public information requests, the provisions of the Freedom of Information Act (IFG), the Administrative Procedures Act, and if applicable, state regulations apply. Here, too, data protection must always be observed; access may, although legally required, be restricted by invoking confidentiality interests or the protection of personal data.
