Concept and Fundamental Definition of Public Law Disputes
Public law disputes are conflicts that originate in public law. They are characterized by the involvement of at least one sovereign authority on one side of the legal relationship. By contrast, private law disputes arise exclusively from civil law and occur between private legal entities. The precise distinction and classification of a dispute are decisive for determining court jurisdiction and the applicability of specific procedural rules.
Distinction: Public Law and Private Law
Distinction Criteria
The essential distinction between public law and private law disputes is based on various theories, of which the subordination theory and the modified subject theory are of particular practical relevance.
Subordination Theory
According to the subordination theory, a dispute is considered a public law dispute if there is a hierarchical relationship between the parties. The sovereign authority typically exercises sovereign powers (imperium) over the citizen.
Modified Subject Theory
According to the modified subject theory, a norm is public law in nature if it exclusively authorizes or obligates a bearer of sovereign power as such. This theory is predominantly used in Germany.
Systematic Classification
Public law disputes encompass not only classical administrative law but also, among others, constitutional law, municipal law, police and regulatory law, public building law, social law, tax law, and environmental law.
Types and Forms of Public Law Disputes
Public law disputes can take various forms:
Dispute of a Non-Constitutional Nature
The majority of public law disputes are of a non-constitutional nature and are regularly adjudicated before administrative, social, or tax courts.
Administrative Law Disputes
This includes conflicts between citizens and the administration or between administrative bodies themselves, such as contesting an administrative act, enforcement, obligations, and general claims for performance.
Social Law Disputes
Public law disputes in the social law sphere arise particularly around questions of statutory social insurance, benefit entitlements, or the calculation and receipt of social benefits.
Tax Law Disputes
Disputes in the area of tax law and tax matters (tax assessments, objection proceedings, suspension of execution).
Dispute of Constitutional Nature
Constitutional law disputes concern those between constitutional bodies (organ dispute proceedings), proceedings for review of norms, or constitutional complaints that must be brought before the constitutional courts.
Requirements for a Public Law Dispute
Parties
At least one party must be a bearer of public authority (e.g., federal government, state, municipality, corporation). On the other side may be another sovereign body, as well as natural or legal persons.
Subject Matter of the Dispute
The subject is generally a legal issue of public law nature, particularly the legality of administrative acts, public law contracts, real acts, or sovereign actions.
Distinction from Public Law Legal Relationships
Not every public law legal relationship leads to a public law dispute; only the existence of opposing legal opinions and their contestation in court renders it a dispute.
Legal Recourse and Jurisdiction
Administrative Jurisdiction (§ 40 VwGO)
According to § 40 paragraph 1 sentence 1 VwGO, the administrative courts have jurisdiction over all public law disputes of a non-constitutional nature, unless another court has been explicitly assigned.
Special Administrative Courts
For certain matters of public law, there are specialized jurisdictions, such as
- Social courts (§ 51 SGG) for social law disputes,
- Tax courts (§ 33 FGO) for tax law disputes.
Constitutional Jurisdiction
If the dispute arises directly from constitutional law (e.g., organ dispute proceedings, federal-state disputes), the respective constitutional court is competent.
Exceptions: Expropriation Disputes and Public Law Employment Relationships
Some public law disputes do not fall under the jurisdiction of the administrative courts, particularly compensation for expropriation and conflicts regarding public law employment relationships, for which the ordinary courts may be competent in part.
Distinction: Special Cases and Mixed Law Disputes
Public Law Disputes with Special Jurisdiction
The legislature may assign, by law, other courts for public law matters (e.g., § 13 GVG for the ordinary jurisdiction in certain public law disputes).
Special Case: Public Law Contract
Contracts between private legal entities and the administration based on public law frequently lead to disputes, the handling of which depends on the subject matter governed.
Mixed Law Disputes
In these cases, several areas of law are involved (public and private law). In such instances, the main focus of the dispute determines court jurisdiction.
Procedural Particularities
Types of Actions in Public Law Disputes
The types of proceedings before administrative courts include, for example:
- Action for Annulment
- Action for Performance
- Declaratory Action
- General Action for Performance
- Action for Judicial Review of Norms
Depending on the area of law (social or tax law), there are additional specific types of actions.
Preliminary Proceedings (Objection Proceedings)
Before asserting a public law dispute before the courts, a mandatory preliminary procedure (objection proceedings, § 68 VwGO) may be required.
Costs and Fees
In public law disputes, costs and fees are generally governed by the Court Fees Act and the respective costs acts of the relevant jurisdictions.
Significance and Practical Relevance
Public law disputes are central to the proper functioning of the rule of law. They ensure administrative accountability, effective legal protection for individuals, and adherence to statutory requirements by the administration. In practice, the main focus is often on the legality of administrative acts, claims under social law, and questions regarding tax law.
Literature and Weblinks
- Administrative Court Procedures Act (VwGO)
- Social Courts Act (SGG)
- Tax Courts Act (FGO)
- Basic Law for the Federal Republic of Germany (GG)
- Other relevant legal provisions and commentaries
This detailed presentation provides a comprehensive overview of public law disputes, their distinction from other areas of law, the procedural and substantive foundations, and their classification within the German legal system.
Frequently Asked Questions
How does the procedure for public law disputes proceed?
The procedure for public law disputes, particularly before administrative courts, follows clearly regulated procedural rules. Typically, an objection procedure is first required, in which the affected person files an objection against a burdensome administrative act with the issuing authority. If the objection is not granted, recourse to annulment or performance actions before the administrative court is permitted. The court proceedings start with the filing of the claim, which must state the subject matter and the grounds for the claim. Once the action is admitted, the authorities and, if applicable, other parties are asked to comment. The court may schedule an oral hearing to discuss the facts and law. The process is characterized by the principle of official investigation – the court may conduct investigations ex officio. Finally, the court delivers a judgment or – less frequently – an order, against which legal remedies such as appeal or revision can be lodged. The entire procedure is aimed at reviewing state actions and protecting the subjective rights of individuals.
Which court instances are relevant in public law disputes?
Public law disputes are generally decided by the administrative courts when they concern administrative law matters, e.g., in police and regulatory law, building law, or immigration law. The first instance is formed by the administrative courts (§ 45 VwGO). Under certain conditions, an appeal is available to the Higher Administrative Court (OVG) or Administrative Court of Appeal (VGH). Further legal review is possible – after admission – by appeal to the Federal Administrative Court (BVerwG). For special matters such as the social or tax courts, separate branches exist with a similar appeals structure (Social Court, Regional Social Court, Federal Social Court, or Tax Court, Federal Fiscal Court).
When is an action admissible in public law disputes?
A prerequisite for the admissibility of an action is, first, the appropriate type of action, which is determined by the desired outcome (e.g., action for annulment, action for performance, or action for a declaratory judgment). Furthermore, the general requirements for a substantive decision must be fulfilled: the claimant must have standing, meaning he or she must be able to claim a violation of their own rights (§ 42 para. 2 VwGO). In most cases, an objection procedure must be conducted (“preliminary procedure”) before filing the lawsuit, unless the law provides for an exception (§ 68 et seq. VwGO). Another requirement is the need for legal protection, which exists if there is a legitimate interest in resolving the dispute. Formal and time requirements, such as observing the deadline for filing the action, usually one month after service of the objection decision, must be strictly observed. Missing prerequisites for admissibility lead to the dismissal of the action as inadmissible.
What is the significance of the principle of official investigation in administrative proceedings?
The principle of official investigation, also known as the principle of ex officio investigation (§ 86 para. 1 VwGO), means that in public law disputes, the court investigates the relevant facts of the case on its own initiative. Unlike civil proceedings, where the parties substantially determine the scope of the litigation (party presentation principle), the administrative court is not bound by the submissions of the parties. It is obliged to establish all facts relevant to the decision, to take necessary evidence, and to consider exonerating circumstances as well. However, the parties are required to cooperate (§ 86 para. 1 sentence 2 VwGO). The principle of official investigation is instrumental in ensuring substantive justice and an objective decision-making process in administrative proceedings.
What role do administrative acts play in public law disputes?
Administrative acts are regularly the starting point of public law disputes, as they represent a direct regulation of an individual case in the field of public law by an authority towards a person (the addressee). Typical examples include building permits, police orders, or administrative fee notices. In case of dispute, the legality or appropriateness of an administrative act is usually challenged (action for annulment) or its issuance is sought (action for performance). Judicial review focuses on compliance with statutory prerequisites for issuing administrative acts (enabling basis), proper hearings, definiteness, procedural correctness, and substantive accuracy. If the administrative act is found to be unlawful, the court will annul it or compel the authority to issue the requested administrative act.
What types of interim legal protection are available?
Within the scope of public law disputes, interim legal protection is available to prevent disadvantages before the main matter is decided. This is particularly possible by applying for the suspension of enforcement (§ 80 para. 5 VwGO) or by applying for interim orders (§ 123 VwGO). The aim of such proceedings is to establish provisional arrangements where legal relationships are particularly urgent, or to suspend the enforcement of an administrative act if there are serious doubts about its legality or if the affected individual would suffer unreasonable disadvantages. The court conducts a summary review of the merits of the main action and weighs the competing interests. Interim legal protection is of central importance for effective judicial protection (Art. 19 para. 4 GG).
How does the requirement of effective legal protection affect public law disputes?
The requirement of effective legal protection, as enshrined in Art. 19 para. 4 GG, obliges the courts to ensure comprehensive and effective legal protection for citizens against acts of public authority. This entails that access to the courts must be possible against any measure of public authority that may interfere with subjective rights. The courts must be able to comprehensively review the legality and appropriateness of official action and to intervene as necessary. The consequence is a high standard for judicial review, low access barriers, and effective procedural instruments (such as interim protection). This requirement leads to the continual development of case law and the interpretation of procedural rules in favor of the party seeking legal protection.
