Concept and significance of the official investigation principle
Der Official investigation principle is a fundamental structural principle of German procedural law, which plays a central role especially in administrative procedures, administrative procedural law, social administrative and social court procedures, as well as in tax law. The official investigation principle, also referred to as the investigative principle or the ex officio maxim, obliges the competent authority or court to independently and comprehensively investigate the facts relevant to the decision on its own initiative. The participation of the parties involved remains possible and is sometimes necessary, however, the presence of the official investigation principle generally relieves them of a sole obligation to present facts and provide evidence, as required under the so-called party presentation principle.
Legal sources of the official investigation principle
General administrative legal framework
In administrative law, the official investigation principle is anchored in the provisions of the administrative procedure laws. According to § 24 para. 1 VwVfG (Administrative Procedure Act), the authority must investigate the facts relevant for the decision ex officio. It is not bound by the submissions or applications for evidence made by the parties involved.
Social administrative and social procedural law
In the area of social law, the official investigation principle is particularly pronounced. Pursuant to § 20 SGB X (Tenth Book of the Social Code), the social authority must investigate the facts ex officio. In judicial social law proceedings, the official investigation principle is enshrined in § 103 SGG (Social Court Act), which requires the court to investigate the facts ex officio.
Tax procedural law
Tax procedural law recognizes the official investigation principle particularly through § 88 AO (Fiscal Code), which obliges tax authorities to investigate the facts ex officio and to consider all circumstances relevant to the decision.
Special features in civil and criminal procedure law
In civil procedure, the party presentation principle (§§ 138, 288 ZPO) generally prevails, assigning the responsibility for presenting the facts to the parties. The official investigation principle applies in civil proceedings only in exceptional cases, for example within the scope of the court’s duty of care or in proceedings involving children and adolescents (§§ 26, 144 FamFG).
In criminal proceedings, both elements of the official investigation principle (§ 244 para. 2 StPO: investigative principle) and party maxims apply.
Function and purpose of the official investigation principle
The official investigation principle is intended to allow a materially correct decision, regardless of how active or cooperative the parties are. The principle reduces the risk that essential aspects go undiscovered and ensures an objective and complete clarification of the facts. This is especially important in administrative, social, and tax proceedings, which are intended to balance a structural inequality between the state and citizens.
Substantive requirements for the duty of investigation
Scope of the investigation
The scope of the investigation to be conducted by the authority or court depends on the legal and factual relevance of each circumstance. The parties must be heard and may name evidence, but authorities and courts must also independently obtain further information if it could be relevant for the decision.
Taking of evidence
Within the framework of the official investigation principle, there is an obligation to consider and, if necessary, collect all accessible and relevant evidence—such as documents, witnesses, experts, or physical inspections. The rejection of applications for evidence is permissible if the evidence is obviously unsuitable or would have no impact on the decision.
Limits of the official investigation principle
Duty of cooperation of the parties
Despite the authority’s duty to clarify the facts, parties to the ex officio procedure also have duties to cooperate. In particular, this applies if certain facts or documents are exclusively known or accessible to them, or if special expertise is required (e.g., § 21 SGB X). The extent of the obligation to cooperate is often determined by law and may include duties to produce documents or presumptions of probability.
Scope of the investigation
The official investigation principle meets its limits especially where further investigations are objectively not (or no longer) possible or economically unreasonable. In social and tax proceedings, it is also stipulated that a lack of cooperation may be to the detriment of the participant if, despite all efforts by the authority, the facts relevant to the decision cannot be further clarified (§ 66 SGB I; § 162 AO).
Binding effect on the administrative authority / the court
A further limitation of the official investigation principle arises from the principle of safeguarding objective interests and from the prohibition of investigating at random (no speculative investigation). In addition, the principle of procedural economy serves as a guiding limitation.
Legal consequences and significance in practice
If an authority or court disregards the official investigation principle, for example by failing to fully clarify the facts, this may render the decision unlawful. In administrative and social court proceedings, a violation is generally a procedural defect that can enable a successful appeal (e.g., by setting aside and remanding by the court).
In tax law, a breach of the duty of investigation under § 88 AO can lead to the inapplicability of a tax or determination order. In general administrative procedures, a breach of the investigative principle may also violate the prohibition of arbitrariness and the principle of equal treatment.
Distinction from other procedural principles
The official investigation principle stands in contrast to the party presentation principle, which applies in some areas of civil procedure and administrative procedural law (e.g. in certain application proceedings). The dispositive principle, whereby the parties determine the subject matter of the proceedings, is also not readily compatible with the official investigation principle. In proceedings involving especially vulnerable parties (e.g. minors, social benefit recipients), the official investigation principle is regularly emphasized in distinction to these other principles.
Literature and further information
- Administrative Procedure Act (VwVfG)
- Social Code (SGB) X, Social Court Act (SGG)
- Fiscal Code (AO)
- Code of Civil Procedure (ZPO), Code of Criminal Procedure (StPO)
- Textbook on Administrative Procedure, Principles of Administrative Law
The official investigation principle is a central procedural principle in German law, requiring independent and comprehensive fact-finding by authorities and courts, and thereby making a significant contribution to substantive justice and the protection of parties in administrative, social, and tax proceedings.
Frequently asked questions
What role does the official investigation principle play in administrative proceedings?
The official investigation principle, also referred to as the investigative principle, is a central principle of administrative procedural law. It obliges the authority to independently and not merely at the instigation of the parties, fully and comprehensively investigate the facts relevant to the decision. The authority is therefore not bound by the actual submissions of the parties, but must investigate all circumstances that are relevant for the decision (§ 24 VwVfG). The official investigation principle safeguards substantive justice, because the administration does not merely passively respond to what parties submit, but must actively establish an objective basis for its decision. This especially includes obtaining information, conducting site inspections, and involving experts. In this way, it should be prevented that the administrative decision is based on incomplete facts.
In which areas of law is the official investigation principle applied?
The official investigation principle is applied particularly in public administrative law, i.e., in procedures where authorities issue administrative acts or decide on applications. This includes, for example, general administrative procedures under the Administrative Procedure Act (VwVfG), but also special administrative fields such as building, social, police, or foreign nationals law. For example, social authorities are obliged under § 20 SGB X to clarify the facts ex officio. In civil disputes, by contrast, the party presentation principle primarily applies: here, the parties must present and prove the facts necessary for the decision. Similar official investigation principles can also be found in tax law and criminal procedure law, although those areas have various forms and distinctions regarding the respective procedural principle.
What powers does the authority have under the official investigation principle?
Within the framework of the official investigation principle, the authority is equipped with various investigatory powers. It may, at its own discretion, hear witnesses, collect evidence, appoint experts, obtain files from other offices, or inspect objects. In doing so, the boundaries of the law must be observed, particularly fundamental rights and provisions on data protection and procedural law. Coercive measures or infringements of fundamental rights may only be employed if provided for by law. Authorities are also required to conduct proceedings fairly and to prompt the parties under § 25 VwVfG to supplement or clarify their statements in order to ensure the most complete possible clarification of the facts.
How does the official investigation principle affect the duties of cooperation of the parties?
Although the authority bears responsibility for fact-finding according to the official investigation principle, the parties may still have duties to cooperate. These are particularly provided for in special statutes — such as in the case of social benefits under § 60 ff. SGB I. As a rule, the authority is required to inform the parties about missing or unclear information and to give them the opportunity to comment. If a party violates its duty to cooperate, the proceedings may, under certain circumstances, be discontinued or benefits denied (‘duty to cooperate’). Nevertheless, even in the event of a breach of these duties to cooperate, the authority remains obliged to investigate the facts as far as possible on its own initiative.
What is the significance of the official investigation principle in administrative court proceedings?
In administrative court proceedings, the official investigation principle gains particular significance. While the party presentation maxim generally applies in administrative litigation, the court is nonetheless obliged under § 86 VwGO to investigate the facts ex officio. The court must therefore act on its own initiative to obtain a complete and correct basis of facts. However, the pleadings of the parties often influence the extent of the court’s factual investigation. Thus, parties must also cooperate in court proceedings, in particular by presenting facts and evidence known to them. Judicial fact-finding therefore adds to, but never completely replaces, party cooperation.
Can the official investigation principle be restricted?
The official investigation principle can be modified or restricted by statutory provisions or in individual cases. For example, special statutory duties to cooperate, as in tax law (§ 90 AO) or social law (§§ 60, 66 SGB I), can lead to the situation that if the parties fail to cooperate, the facts are deemed unclarified and a decision is made to their disadvantage. Deadlines and rules to accelerate procedures can also limit the extent of official investigation. Nevertheless, the principle remains that the authority must undertake objective fact-finding as far as possible within the statutory framework.
What are the consequences of violating the official investigation principle?
An official decision that violates the official investigation principle – for example, because the facts were not sufficiently clarified or relevant evidence was not collected – is unlawful and therefore subject to appeal. In the context of a remedy procedure, the existence of an investigative deficit may result in annulment or remittal of the decision. Even in court proceedings, this may result in the court continuing fact-finding on its own or overturning the authority’s decision. Thus, the principle also serves to ensure effective legal protection and the substantive correctness of official decisions.
