Concept and Fundamentals of Public Administration
Public administration is a central component of government action. It encompasses all activities carried out by the state and other entities entrusted with public tasks for the implementation of laws, ordinances, and other regulatory requirements. From a legal perspective, public administration refers to a comprehensive system of structures, procedures, and actions designed for the implementation and enforcement of public law.
Public administration stands in contrast to the judiciary and legislation and, together with them, forms the so-called separation of powers. It operates on the principle of legality, according to which the administration may only act on the basis of statutory powers (principle of the legality of administration).
Legal Sources of Public Administration
Constitutional Foundations
The relevant provisions for the organization, tasks, and powers of public administration are primarily set out in the Basic Law (Grundgesetz, GG). In particular, Article 20 GG establishes the administration’s obligation to adhere to law and justice (principle of the rule of law). Additionally, state constitutions regulate the specific design of the administration in the German federal states.
Statutory Foundations
In addition to the Basic Law, there are numerous statutory foundations, including:
- Administrative Procedure Act (VwVfG)
- Code of Administrative Court Procedure (VwGO)
- Federal Civil Servants Act (BBG)
- Budgetary Legislation
- Municipal Law Provisions of the States
These provisions primarily regulate procedural sequences, organizational structure, responsibilities, and control mechanisms within the administration.
Tasks and Functions of Public Administration
Public administration covers a wide range of tasks. The main functions include:
Regulatory Administration
This includes measures for averting dangers and maintaining public safety and order. Classic tasks are the granting of building permits, the issuance of prohibition orders, or the monitoring of road traffic.
Service Administration
This includes sovereign measures to provide public services, such as granting social benefits, awarding subsidies, or providing infrastructure.
Regulatory vs. Service Administration
A distinction is made between regulatory administration, which intervenes in individual rights, and service administration, which grants benefits to citizens.
Organization and Structure of Public Administration
Public administration is organized federally into the federal government, states, and municipalities.
Federal Administration
The federal administration consists of direct federal administration (federal ministries, subordinate federal authorities) and indirect federal administration (public law corporations, institutions, and foundations with nationwide responsibilities).
State and Municipal Administration
Each federal state has its own administrative structures. Municipal self-administration is protected by Art. 28(2) GG. Municipalities and districts perform tasks autonomously (e.g., land use planning, sewage disposal, management of schools).
Special Administration: Corporations, Institutions, and Foundations under Public Law
These entities have their own legal personality and fulfill certain tasks through self-administration (examples: universities, public broadcasting institutions).
Legal Principles and Obligations of Public Administration
Legality of Administration
The administration is directly bound by law and statute (principle of legality: Art. 20(3) GG).
Principle of Proportionality
Administrative interventions must be suitable, necessary, and appropriate.
Principle of Certainty and Clarity
Administrative acts must be sufficiently specific (§ 37 VwVfG) to make rights and obligations of those affected clearly evident.
Administrative Discretion and Margin of Judgment
Within the framework of statutory provisions, the administration may exercise discretion, but is bound by the principles of proper discretion (e.g., doctrine of discretion errors). In specific cases, it is granted a margin of judgment.
Procedures in Public Administration
Administrative procedures in Germany are governed by the Administrative Procedure Act (VwVfG). Fundamental characteristics include:
- Participation of the Person Concerned (right to be heard, § 28 VwVfG)
- Right of Access to Files (§ 29 VwVfG)
- Obligation to State Reasons for Administrative Acts (§ 39 VwVfG)
- Possibility of Objection and Judicial Review
Administrative Act
The administrative act (§ 35 VwVfG) is the central instrument of action. It is a sovereign measure by an authority in the field of public law with direct external legal effect.
Public Law Contract
In addition to the administrative act, the administration may act by means of public law contracts (§§ 54 ff. VwVfG).
Legal Review and Legal Protection
Public administration is subject to the principle of legal review:
- Judicial Control: Every sovereign measure is subject to judicial review under Art. 19(4) GG.
- Control by Courts of Auditors and Data Protection Authorities
- Parliamentary Oversight and Citizen Participation (e.g., citizens’ petitions, referenda)
Special Features in the European and International Context
Administrative actions must be compatible with European Union law. In certain sectors, administration is directly bound by EU directives and regulations (e.g., public procurement law, data protection).
Summary
Public administration constitutes the executive branch of state authority and ensures the implementation of legal norms and the realization of public tasks. Structurally and legally, it is shaped by a complex network of constitution, laws, ordinances, and special statutory provisions. The principles of the rule of law guarantee adherence to law and statute as well as comprehensive legal protection for those affected. Public administration is thus at the center of the exercise of state functions and ensures that state action remains transparent, lawful, and subject to control.
Frequently Asked Questions
Who is entitled to inspect files in administrative proceedings?
The right to inspect files in administrative proceedings in Germany is primarily governed by the Administrative Procedure Act (VwVfG), state administrative procedure acts, and special statutory provisions. In principle, anyone involved as defined by § 13 VwVfG may request file inspection. Parties include, in particular, applicants, addressees of an administrative act, and third parties whose legal interests may be affected by the proceedings. File inspection generally includes all documents relevant to the decision (so-called ‘official files’), but excludes documents whose disclosure would adversely affect legitimate interests of third parties, the state, or public interests, for example due to data protection provisions or the protection of business and trade secrets. In certain proceedings, such as under the Environmental Information Act (UIG) or the Freedom of Information Act (IFG), the right to file inspection can go even further and grant claims to non-parties, although restrictions also apply here, for example, to protect public safety or personal data.
What legal remedies are available against administrative acts?
As a rule, the available legal remedies against administrative acts are the objection (for authorities of the federal government and the states, unless the objection procedure is excluded by law) and the action for annulment pursuant to § 42 VwGO. In addition, there are the action for performance (if an administrative act is denied or a decision is withheld), the action for a declaratory judgment, and certain special types of action. The objection procedure is a preliminary procedure for extrajudicial review of the administrative act by the authority itself or a higher authority. If the objection is not remedied, the path to the administrative courts is usually open. In certain areas, the objection procedure may be omitted by law, allowing direct action before the administrative court. There is also the possibility of applications for interim legal protection (§§ 80, 80a, 123 VwGO) to obtain provisional protection against enforcement of an administrative act or establish a provisional situation. The lodging of legal remedies is subject to specific deadlines and formal requirements.
Which official procedural principles must be strictly observed in public administration?
Essential procedural principles derive from the Administrative Procedure Act (VwVfG), supplementary special laws, and fundamental rights under the Basic Law. Central principles include, in particular, the principle of the legality of administration (Art. 20(3) GG), the requirement of the right to be heard (§ 28 VwVfG), the principle of equal treatment (Art. 3 GG), the obligation of official investigation (§ 24 VwVfG), as well as the principle of good faith and fair dealing (§ 242 BGB, applied analogously). Additionally, the principle of proportionality and the prohibition of arbitrariness must always be observed. Ensuring these principles guarantees that administrative procedures are fair, transparent, appropriate, and free from discrimination, as well as that all parties concerned are adequately heard and their rights are protected.
When does an administrative act become final and what are the consequences?
An administrative act becomes final if no admissible legal remedies (e.g., objection, action) can be lodged because either the prescribed time limits (generally one month, §§ 70, 74 VwGO) have expired or the filed legal remedies have been unsuccessful. Finality means that the administrative act cannot generally be challenged or reviewed. Exceptions include revocation and withdrawal (under the conditions of §§ 48, 49 VwVfG) as well as reopening pursuant to § 51 VwVfG. Once finality occurs, the administrative act acquires what is known as binding effect and is binding for future proceedings. Finality may also have consequences for enforcement once the act is final and enforceable.
What statutory regulations apply to official liability for errors by authorities?
Official liability is governed by the German Civil Code (§ 839 BGB) and Article 34 GG. Under § 839 BGB, a civil servant or other official of the state is liable if, in the exercise of an entrusted public office, he or she intentionally or negligently breaches an official duty and thus causes harm to a third party. Under Article 34 GG, however, liability attaches to the state or the respective public body for which the official acted, meaning the injured person must assert their claim for compensation directly against the state. Prerequisites for liability include a breach of an official duty directed at the third party, causality of the breach for the damage incurred, and the absence of legal justification or exclusion (e.g., contributory negligence of the injured party). As a rule, all financial losses and in certain cases also non-material losses are compensable. Internal administrative measures (such as disciplinary proceedings) may also be initiated but do not affect civil liability towards the injured party.
How is the official notification and service of administrative acts carried out effectively by law?
The notification of administrative acts is governed by the VwVfG (§§ 41 et seq.). An administrative act becomes effective as soon as it is communicated to the person concerned (§ 43 para. 1 VwVfG). Notification may be made in writing, electronically, orally, or by other means. Written notification is generally effected by ordinary letter, whereas service may take place according to the provisions of the Administrative Service of Documents Act (VwZG) or according to state law—including formal service (e.g., by registered mail with return receipt, service certificate, or electronic service). Proper service is especially important for calculating deadlines (commencement of the period for objection or bringing an action). If the administrative act is not properly notified to the person concerned, it is not legally effective. In special cases, public notification (e.g., by posting, publication in the official gazette) is undertaken, especially if the recipient’s whereabouts are unknown. Electronic service is also possible if the recipient consents or if there is a statutory basis.
What are the obligations of authorities concerning the reasoning of administrative acts?
According to § 39 VwVfG and corresponding provisions in special laws, authorities are generally required to provide written reasons for administrative acts. The justification must set out the essential factual and legal grounds which led the authority to its decision. The requirement to state reasons serves transparency, comprehensibility, and controlled decision-making by the public administration and enables affected parties to effectively exercise their rights, for example when lodging legal remedies. The only exceptions are when an administrative act is issued exclusively upon application and the application is fully granted, or when a justification may be omitted by law. The requirement to state reasons is a central element of administrative procedure and is closely linked to the rule of law (Art. 20(3) GG) and the requirement of effective legal protection (Art. 19(4) GG).
What special requirements apply to the hearing of affected parties in administrative proceedings?
The Administrative Procedure Act obliges authorities under § 28 VwVfG to hear the person affected by an administrative act before it is issued, unless an exception applies (e.g., in cases of imminent danger or if compensation for damage must be secured by enforcement measures). The hearing is intended to give the person concerned an opportunity to comment on the facts relevant to the decision before the act is issued. The authority must communicate relevant information and grant the person concerned a reasonable period for comment. If the hearing is omitted, the administrative act is generally unlawful; however, it may exceptionally be remedied under § 45 VwVfG. The hearing is a fundamental expression of the right to be heard (Art. 103(1) GG) and serves to prevent errors and protect the rights of those affected.
