Concept of Performance Administration
Die Performance Administration is a central concept of German administrative law and describes the activity of the administration through which it provides direct services and benefits. In contrast to the intervention administration, which imposes burdens or restrictions on individuals, performance administration is characterized by measures that expand, improve, or promote individual rights. This area of administration thus includes both the provision of public services and the granting of material or financial benefits to individuals or groups.
Fundamental Principles and Delimitation
Distinction from Intervention Administration
Performance administration stands in direct opposition to intervention administration. While intervention administration authoritatively encroaches upon citizens’ rights, for example, by prohibitions, orders, or administrative acts, performance administration focuses on positive promotion and support. Nevertheless, performance administration may be subject to specific prerequisites and is often contingent upon certain conditions and requirements for approval.
Legal Foundations of Performance Administration
Constitutional Foundations
The Basic Law contains no explicit rules regarding the concept of performance administration. However, constitutional foundations can be derived from the social state principle in Art. 20 para. 1 GG, as well as from other norms such as Art. 3 para. 1 GG (equal treatment) and, where applicable, Art. 12 and Art. 14 GG. From these, the State is obliged to provide benefits and ensure equal opportunities under certain conditions.
Ordinary Laws as Regulatory Basis
The concrete form of performance administration is governed by ordinary statutory provisions. The decisive factor is whether there is a legal entitlement to the benefit (legal claim) or whether the benefit is granted at the discretion of the administration (discretionary benefit). Examples include the Social Code (SGB), the Federal Education Assistance Act (BAföG), the Housing Benefit Act (WoGG), but also laws such as the Federal Immission Control Act in the field of public subsidies.
Forms of Performance Administration
Monetary Benefits
Monetary benefits are classic forms of performance administration. These include, among others, social benefits (e.g., unemployment benefits, child benefits, parental benefits, BAföG, housing benefits), subsidies, or grants. The structure of these benefits is generally subject to specific approval conditions and legal bases.
In-kind Benefits and Services
This includes, for example, the provision of educational institutions (schools, universities), hospitals, infrastructure (transport, energy, water), and administrative services (e.g. the issuance of ID cards or passports). Access to these services may also create entitlement or depend on decisions made at the discretion of the authority.
Legal Structure of Performance Administration
Legal Bases for Claims and Approval Procedures
Claims to benefits arise from statutory provisions. The procedure for obtaining benefits regularly requires application to the competent authority. The administrative procedure is, except where special legal provisions apply, governed by the Administrative Procedure Act (VwVfG).
Characteristics of the Administrative Act in Performance Administration
Many benefits are granted through the issuance of a favorable administrative act. There is a difference in legal quality: In performance administration, an administrative act conveys advantages – it is generally subject to additional conditions and may be revoked or withdrawn under certain legal conditions (§§ 48, 49 VwVfG).
Scope for Discretion and the Principle of Equal Treatment
Where discretion is granted to administrative authorities, they are required to exercise it properly. The principle of equal treatment (Art. 3 GG) requires a fair and non-discriminatory allocation practice. For discretionary benefits, the prohibition of arbitrariness must also be observed.
Special Issues and Legal Disputes
Recovery and Revocation of Granted Benefits
The revocation or withdrawal of favorable administrative acts, for instance, in cases where benefits were unlawfully granted, is specially regulated. Sections 48 and 49 VwVfG contain relevant provisions for reclaiming payments already made; social law also contains its own rules, e.g. in § 45 SGB X.
Levels of Control and Judicial Protection
Performance administration acts are subject to judicial review by administrative courts. Disputes frequently concern whether and to what extent a legal entitlement to a benefit exists, or whether and how discretionary decisions can be reviewed. The standard is usually review for legal errors, particularly errors of judgment or discretion.
Significance and Developmental Trends
Within modern public service provision, performance administration is of central significance. It reflects the social state principle by providing and promoting social participation, security, and infrastructure. With the increasing digitalization of administrative services (e-government), new forms of performance administration are gaining in importance, posing new legal challenges — particularly with regard to data protection, equal access, and transparency.
Summary
Performance administration is the counterpart to intervention administration and lies at the core of state provision of public services and funding policies. Its legal framework derives from constitutional principles and ordinary statutory provisions. It includes monetary and in-kind benefits, creates individual entitlements, but is also subject to the binding effect of statutory requirements and the principle of equal treatment. Performance administration makes a decisive contribution to fulfilling social state responsibilities and ensuring social participation, and is of great practical and legal importance in German administrative law.
Frequently Asked Questions
What legal obligations exist regarding documentation in performance administration?
In performance administration, public authorities are obliged to document all administrative processes and the benefits provided in a comprehensible manner. This duty results particularly from the principle of proper recordkeeping, which is laid down in the administrative procedure laws of the federal states and the federal government (e.g., § 10 Administrative Procedure Act – VwVfG). Documentation serves not only internal traceability but is also a central requirement for effective legal control by courts or supervisory authorities. Furthermore, from the principle of the right to be heard, the affected person derives a subjective right to inspect the relevant documents of their administrative process. Documentation obligations are further specified by special laws (e.g. in social, tax, or building law) and encompass both paper and electronic documents. Breaches of documentation obligations may render a granted benefit unlawful and, in individual cases, give rise to official liability claims.
How is data protection responsibility regulated in performance administration?
The processing of personal data within the scope of performance administration is subject to strict data protection requirements, in particular the General Data Protection Regulation (GDPR) and the respective federal or state data protection laws (BDSG, LDSG). As a rule, data may only be collected, processed, and used to the extent necessary for the execution of the administrative task at hand (purpose limitation). Those affected have detailed rights to access, erasure, and rectification, which must be safeguarded by the administration. In addition, technical and organizational measures must be taken to prevent unauthorized access or data loss. Data protection-compliant procedures and processing registers are mandatory; breaches can result in sanctions, claims for damages, and disciplinary consequences.
What legal requirements apply to the notification of benefit decisions?
Proper and timely notification of administrative acts — which includes benefit decisions — is an indispensable prerequisite for their effectiveness. This arises directly from the provisions of administrative procedure laws (§ 41 VwVfG). In particular, the law stipulates how and in what form a decision must be communicated to the person concerned (for example, by post or electronically with a qualified electronic signature pursuant to the Online Access Act, if permitted). Deadlines for notification and proof of receipt of the decision must also be observed. Errors in service can render the decision ineffective or prevent the commencement of time limits for appeals, with significant administrative and procedural consequences.
To what extent is there an entitlement to the exercise of discretion in performance administration?
In many areas of performance administration, the administration is bound by discretion granted by law (so-called administrative discretion). The exercise of this discretion must be lawful; that is, it must be neither arbitrary nor erroneous. This is regulated in detail in administrative procedural law: Discretion must be exercised in accordance with the statutory purpose and considering all relevant circumstances (§ 40 VwVfG). Failure to exercise discretion at all, exceeding it, or wrongly exercising it (e.g., infringement of the principle of equality under Art. 3 GG) can lead to unlawful decisions, which are subject to review by the administrative courts. There is only an entitlement to a specific discretionary decision if the law establishes a corresponding legal claim; otherwise, there is only a right to a decision free of discretionary error.
What are the legal consequences of an incorrect granting of benefits?
Incorrectly granted benefits can be legally significant both in favor of and to the detriment of the recipient. If benefits are granted without legal grounds, the authority is generally obliged to revoke or reverse the grant in accordance with the provisions on withdrawal and revocation (§§ 48, 49 VwVfG, as well as special provisions, e.g. in SGB). Special formal and substantive requirements apply, such as proportionality and the protection of legitimate expectations. Overpayments can generally be reclaimed — depending on the legal area, with or without fault on the part of the recipient. Incorrect denials can be challenged via objection and legal proceedings, with legal protection guaranteed by the Basic Law (Art. 19 para. 4 GG). Official liability may arise from faulty decisions, resulting in claims for damages pursuant to § 839 BGB in conjunction with Art. 34 GG.
What is the significance of the principle of transparency in performance administration?
The transparency principle is a fundamental concept in German administrative law and obliges the administration to make its decision-making processes and service delivery comprehensible and open. Its basis is in particular Art. 20 para. 3 GG and the respective freedom of information acts (IFG) of the federal government and the states, which provide for a right of access to official information. In the context of performance administration, there is an obligation to inform those affected of their rights and duties, to provide reasons for administrative acts, as well as to disclose the facts and legal grounds relevant to the decision. The transparency principle serves as a means of control by citizens and courts, prevents arbitrariness, and ensures due process. Specific rules, such as the right to access files and information obligations, complete the legal shape of this principle.
