Real Acts in Administrative Law

Real acts in administrative law

Term and distinction

The term Real acts refers in German administrative law to a specific category of sovereign action characterized by the purely factual effect of the administrative measure. A real act is a simple administrative action that is not aimed at creating, altering, or directly binding legal effects. Thus, the real act is particularly distinguished from administrative acts, which have a regulatory character and entail direct legal effects for third parties.

In contrast to administrative acts, public-law contracts, and legislative measures, all of which are aimed at achieving concrete legal consequences, real acts focus on actual actions that serve the public good or fulfill public-law tasks without establishing, changing, or revoking a legal status.

Legal classification

Distinction from other forms of action

A precise distinction of real acts is crucial in administrative law, as the applicability of legal protection mechanisms and remedies depends on it.

• Administrative act: Administrative acts are characterized by their regulatory effect (cf. § 35 VwVfG). Real acts, on the other hand, do not have a regulatory character but implement factual measures.
• Rule-setting: The issuance of regulations or statutes does not constitute a real act, as legally binding rules are created here.
• Public-law contract: Contracts are based on the mutual intention of at least two parties, which real acts lack.

Terminological definition

Real acts are sovereign, purely factual actions of the administration aimed at a real success in the sense of fulfilling a public task, but do not involve regulation within the meaning of the Administrative Procedures Act. Real acts include both activities with external effects (e.g., traffic control by police officers) and those without external effects (e.g., internal file notes).

Examples of real acts

• Information measures
• State-organized rescue operations (e.g., by the fire department)
• Conducting a vaccination by the public health authority
• Police redirecting traffic
• mere granting of use in municipal facilities without legal decision
• actual building implementation (e.g., road construction work)
• actual disbursement of public benefits without an accompanying administrative act

Legal protection in the case of real acts

Primary legal protection

Different rules generally apply to legal protection against real acts than to administrative acts. Since real acts do not involve a formal legal determination, an objection under the Administrative Procedures Act (§ 68 VwGO) is generally not provided for. However, the general administrative legal process is available to those affected (see § 40 VwGO).

Entitlement to injunction and removal

Persons whose rights are violated by a real act may bring an action for injunction or removal. Typically, this opens up the possibility of the general performance action or (where real acts have already been completed but continue to have an effect) the declaratory action (§ 43 VwGO). Frequently, so-called claims for removal of consequences are asserted when the actual act has a continuing effect.

Special features in police real acts

Real acts play a particularly important role in police and regulatory law. This includes police interventions such as interrupting the power supply, removing troublemakers from an event, or seizing objects. For legal protection against such measures, interim legal protection under §§ 80, 80a, 123 VwGO is often available.

Requirements and limits of real acts

Legal basis

Even for the issuance of real acts, a legal basis is generally required. This follows from the principle of reservation of law and the protection of citizens’ fundamental rights. The measure is therefore only permissible if there is authorization for the factual action.

Proportionality and fundamental rights

Since real acts – just like administrative acts – may interfere with fundamental rights, they are subject to the principle of proportionality (suitability, necessity, appropriateness). Authorities are obliged to carry out their factual measures carefully and with due regard to the rights of those affected.

Importance and function

Real acts represent a significant category of administrative action and allow the administration to respond flexibly and promptly to actual circumstances. They are particularly relevant in practice where rapid, unbureaucratic implementation of administrative tasks is given priority.

Real acts in administrative practice

In the daily operation of the administration, real acts significantly outnumber administrative acts: for example, snow removal by municipal services, maintenance of green areas, or providing non-binding information to citizens.

Literature and case law

The legal treatment of real acts is regularly the subject of commentary and judicial decisions, particularly regarding legal protection and the distinction from other forms of action. Landmark decisions include the judgment of the Federal Administrative Court of May 7, 1974 (BVerwGE 45, 51) as well as the explanations in the standard commentaries to the Administrative Procedures Act and the Administrative Court Act.

Summary

The concept of real acts is of great practical and legal significance in administrative law. It refers to administrative actions without regulatory effect, which can nevertheless have a significant impact on rights. Legal protection against real acts is possible – albeit under different conditions compared to administrative acts. For the lawful implementation of real acts, compliance with the principle of proportionality and the existence of a legal basis for authorization are essential.

See also:

• Administrative act
• Public-law contract
• Legal protection in administrative law
• Police real act

Further reading:

• Bonk/Kallerhoff, Administrative Procedures Act, Commentary
• Kopp/Ramsauer, Commentary on the Administrative Procedures Act
• Sodan/Ziekow, Administrative Court Act

External links:

• Federal Administrative Court: Case law on real acts
• Federal Ministry of the Interior: Information on administrative action
• Academic contributions on real acts in public law

Frequently asked questions

How do real acts differ from administrative acts in administrative law?

In administrative law, real acts constitute actual administrative actions that have an immediate factual effect on the environment or individuals, but do not have a regulatory character. Unlike administrative acts, which include a binding, externally directed will of the administration with legal effect, real acts lack any external legal regulation. The administrative act is typically aimed at establishing, amending, revoking, or determining a (specific) legal relationship, while real acts are aimed ‘only’ at an actual action, forbearance, or omission, without imposing an immediate legal consequence. In conclusion, the distinction is especially important for contestability and legal protection options (such as the prerequisites for an annulment action/interim legal protection measures).

What are some typical examples of real acts in administrative law?

Real acts frequently occur in day-to-day administrative practice. Typical examples are police measures to avert danger such as the detention or search of a person without an accompanying administrative act, the actual disbursement of benefits (e.g., subsidies), or the simple provision of information to citizens. Administrative enforcement, such as towing an illegally parked vehicle, is also considered a real act if no prior enforceable administrative act exists. Another relevant form is administrative practices such as the publication of warnings or recommendations that do not have any regulatory external effect.

What is the significance of the rule of law principle in connection with real acts?

The rule of law principle requires that even actual administrative action, i.e., real acts, must not be arbitrary. The administration is obliged to observe legal requirements and to comply with the prohibition on excess even with regard to real acts. This means that even purely factual actions must be proportionate and based on a legal foundation if they interfere with the rights of those affected. Furthermore, citizens are entitled to effective legal protection pursuant to Article 19(4) of the Basic Law, so that real acts must also, under certain conditions, be subject to judicial review.

How can someone affected legally defend themselves against a real act of the administration?

In contrast to administrative acts, against which annulment or obligation actions are generally available, actions against real acts include general performance actions, declaratory actions, or – in the case of threatened or continuing impairments – injunction or removal actions. Legal protection is therefore primarily governed by the procedural law of administrative jurisdiction. If a completed real act is at issue, a continuation determination action may be considered. In practice, this means that the claimant must substantiate how the simple measure violated their rights and may then assert a claim for injunction or removal of consequences before the court.

What are the requirements for the lawfulness of real acts?

For a real act to be lawful, an appropriate legal basis (reservation of law) must exist and the administrative action must comply with the principle of proportionality. This includes the suitability, necessity, and appropriateness of the measure. Unauthorized or excessive interventions are unlawful and can result in official liability claims. It should be noted that the requirement of specificity is less strict for real acts than for administrative acts, since there is no regulatory administrative act; nevertheless, the person affected must be able to recognize that and how their rights are being interfered with.

Is there an obligation to grant a hearing before performing real acts?

The duty to grant a hearing is regulated by § 28 VwVfG, but generally only applies to administrative acts. In the case of real acts, there is no general obligation to grant a hearing to the person affected before conducting the measure. However, such a procedural obligation may arise from special statutes or the principle of fair procedure, especially in the case of significant interferences with fundamental rights. In such cases, a hearing of the affected person before performing a real act is required, unless there is imminent danger or it is not possible for factual reasons.

What is the relationship between real acts, simple administrative action, and public-law contracts?

The real act is a subcategory of so-called simple administrative action, which encompasses all administrative actions that are neither administrative acts nor administrative private-law relationships (such as a public-law contract). While the administrative act is a sovereign measure with regulatory effect, and the public-law contract represents a consensual legal relationship between the citizen and the administration, the real act is characterized by its purely factual nature. The classification is regularly decisive for the choice of the appropriate type of action and determination of the applicable law.