Concept and Fundamentals of Regulatory Law
Regulatory law is a central area of public law that aims to maintain public safety and order. It encompasses all provisions that regulate sovereign interventions by the administration for hazard prevention and the elimination of disturbances. The fundamental objective of regulatory law is to prevent or eliminate disruptions to public safety and order through preventive and repressive measures.
Definition and Scope of Regulatory Law
Regulatory law refers to the area of public law that governs the preventive and defensive activities of administrative authorities in regard to dangers and disturbances for public safety and order. This particularly includes provisions for hazard prevention, the elimination of disturbances, and the oversight of individuals or companies whose conduct may potentially contravene public order.
Distinction from Other Areas of Law
Regulatory law must be distinguished from police and security law, even though there are overlaps. While police law primarily governs measures for general hazard prevention, regulatory law predominantly consists of provisions relating to special regulatory authorities (such as commercial, construction, or environmental law) and establishes the normative framework for intervention and protective measures in public spaces.
Legal Sources and Scope of Regulatory Law
Normative Foundations
Regulatory law is codified in a wide variety of statutes and ordinances, both at the federal and state level. Important federal legal provisions can be found, among others, in the Administrative Offenses Act (OWiG), the Trade Regulation Act (GewO), the Federal Immission Control Act (BImSchG), as well as in special statutory regulations such as the Restaurant Act or the Circular Economy Act. The states additionally enact their own police laws and state regulatory authority laws, which precisely define the tasks and responsibilities of regulatory authorities.
Public Safety and Order as Legal Interests
The terms ‘public safety’ and ‘public order’ are fundamental legal interests protected by regulatory law:
Public Safety
Public safety encompasses the integrity of the legal order, the subjective rights and legal interests of individuals (life, health, property), as well as the proper functioning of state institutions.
Public Order
Public order refers to the entirety of those unwritten rules whose observance is considered an essential prerequisite for orderly human coexistence, according to prevailing social and ethical views.
Typical Areas of Application of Regulatory Law
Hazard Prevention and Disturbance Elimination
A major area of application lies in preventive hazard prevention. Regulatory authorities may take action to avert imminent dangers to the public or to individuals. This includes, for example, issuing bans from premises, reporting requirements, event bans, or orders to remedy structural defects.
Supervision and Monitoring
Regulatory law also governs the surveillance of public spaces and the monitoring of commercial or private activities that are suspected of endangering public safety and order. This can include inspections of restaurants, craft businesses, public assemblies, or the transport sector.
Law on Administrative Offenses
A specific part of regulatory law is the law on administrative offenses under the OWiG. It penalizes breaches of statutory provisions with fines, without the presence of a criminal offense. Examples include violations of road traffic regulations, noise disturbances, or breaches of environmental requirements.
Administrative Agencies and Jurisdiction in Regulatory Law
Regulatory Authorities
Local regulatory authorities, such as city or municipal administrations, are the primary carriers of regulatory law within their territory. In addition, there are state regulatory offices and special authorities, for example in the field of environmental or food law.
Functions and Powers
Regulatory authorities possess a wide range of powers of intervention and protection, including the issuance of administrative acts, prohibitions, licenses, penalties for administrative offenses, and the execution of compulsory measures as a last resort. The exercise of these powers is fundamentally subject to the principle of proportionality.
Principles and Legal Doctrines in Regulatory Law
Principle of Proportionality
Measures under regulatory law must always be appropriate, necessary, and suitable. Interventions are only permitted to the extent absolutely necessary for hazard prevention or disturbance elimination.
Principle of Legal Certainty and Requirement of a Statutory Basis
Interventions require a clear statutory basis, and the legal requirements must be sufficiently specific so that those affected can foresee the legal consequences of their actions.
Primacy and Reservation of Statutory Law
Measures may only be taken on the basis of formal laws; the administration is bound by law and justice.
Legal Protection in Regulatory Law
Administrative Legal Protection
Those affected by actions and administrative acts of regulatory authorities have recourse to the administrative courts. Affected parties can file an objection and, if necessary, bring an action before the administrative court.
Provisional Legal Protection
In urgent legal protection pursuant to § 80 VwGO, affected parties can apply for the suspensive effect against burdensome administrative acts or to have measures of regulatory authorities provisionally stopped.
Significance of Regulatory Law in Social Context
Regulatory law plays a vital role in ensuring the functionality of the community. It serves to balance individual freedoms with the requirements of orderly coexistence and thus constitutes a central instrument of public administration.
Current Developments and Challenges
Regulatory law is continuously adjusted in view of societal and technological developments, for example in the areas of digitalization, environmental protection, or infection control. As a result, the requirements and areas of responsibility of regulatory authorities are increasingly changing.
Conclusion: Regulatory law is a far-reaching, dynamic area of law that lays down the foundations, measures, and procedures for hazard prevention and the safeguarding of public interests. It is indispensable for the functioning of public administration and the protection of the general public and individual rights.
Frequently Asked Questions
When and how may regulatory measures be taken by authorities?
Regulatory measures by authorities may generally only be taken if a danger to public safety or order exists or is to be feared. The legal foundations for this are primarily found in the police laws of the federal states as well as in the law on administrative offenses and respective special statutory provisions. Authorities are obliged to adhere to the principle of proportionality: a measure must be appropriate, necessary, and reasonable to avert the existing danger. Before issuing a measure, the affected party must, as a rule, be given an opportunity to comment (hearing pursuant to § 28 VwVfG), unless the matter is urgent and cannot be delayed. Furthermore, the authority must observe the principle of ‘disturber first,’ meaning that the person responsible for causing the danger (behavioural or circumstantial disturber) must primarily be addressed. Only if such person cannot be involved in time or effectively, a so-called non-disturber may be the addressee of regulatory measures. Each measure must be documented and justified to ensure it is reviewable and, if necessary, subject to judicial review.
What legal remedies are available to challenge regulatory measures?
Affected parties can defend themselves against regulatory measures using various legal remedies. The decisive factor is the legal nature of the measure: for an administrative act, such as an order or decree, an objection (Widerspruch) is the first remedy unless specifically excluded by the applicable law. Once the objection procedure is completed, an annulment action (Anfechtungsklage) can be brought before the administrative court. In cases of mere factual actions or preparatory administrative acts, it may be possible to file a performance or declaratory action directly. In particularly urgent matters, urgent legal protection can be requested under § 80 (5) or § 123 VwGO to obtain suspensive effect or an interim order. The legality of regulatory measures is also regularly reviewed ex post in the context of fine or criminal proceedings. In all these cases, the affected person is entitled to a hearing and a detailed explanation of the measure.
In which cases do regulatory measures remain effective even if they are unlawful?
In principle, regulatory measures may only remain effective if they are lawful. However, exceptions exist in which an unlawful measure remains effective as long as it is not revoked (finality of administrative acts under § 43 (2) VwVfG). An unlawful but final and binding measure must still be observed unless it is reversed or withdrawn. Moreover, defective measures may be cured, for example, if a proper hearing is conducted later (§ 45 VwVfG). Under special hazard situations (so-called police general clause), measures may even be retroactively justified despite their unlawfulness, such as in emergencies (§ 34 StGB, §§ 228, 904 BGB). However, it is essential to distinguish: Appealability and potential suspension of enforceability always remain as long as no explicit legitimization by courts or supervisory authorities has occurred.
What role does the principle of proportionality play in regulatory law?
The principle of proportionality represents a central constitutional principle and plays a predominant role in regulatory law. In concrete terms, this principle requires that every regulatory measure must be suitable to achieve the intended objective. It may not go beyond what is necessary to avert a danger (necessity) and must be proportionate to the desired outcome (reasonableness). This is especially important for measures that interfere with fundamental rights, such as deprivation of liberty, access bans, or searches, which require particularly strict scrutiny. The principle of proportionality is also decisive when selecting the means and addressee, as well as for the duration and intensity of the measure. Failure to observe this principle regularly leads to the illegality of the order and its revocability on review.
How does regulatory law relate to criminal law and administrative law?
Regulatory law occupies an intermediate position within the German legal system between general administrative law and criminal law. It is assigned to public law and primarily governs the prevention of dangers and the elimination of disturbances to public safety and order, while criminal law aims at punishing completed, culpable behavior. Regulatory law works regularly with preventive measures (e.g., ban from premises, closure of businesses), while criminal law is based on repressive punishment. Administrative law provisions, in particular the Administrative Procedure Act (VwVfG) and general police law, form the procedural framework for regulatory activities. At the same time, there are numerous areas of overlap, for instance in penalty proceedings (law on administrative offenses), which can contain both preventive and repressive elements.
To what extent must fundamental rights be observed in regulatory law?
Fundamental rights must be observed at every stage in regulatory law; they define the limits of state action. Interferences with fundamental rights—such as Art. 2 Basic Law (general freedom of action), Art. 13 Basic Law (inviolability of the home), or Art. 8 Basic Law (freedom of assembly)—always require a legal basis and must be carried out in strict compliance with the principle of proportionality. Particularly intensive interventions, such as deprivation of liberty or searches, are often subject to judicial approval or special statutory requirements. Authorities are obliged to take fundamental rights into account continuously while preparing, implementing, and monitoring measures and to select alternatives that interfere as little as possible with fundamental rights. Unlawful interferences with fundamental rights result in the invalidity or revocability of the measure. In addition, affected parties may seek interim legal protection or file a constitutional complaint against regulatory measures that violate fundamental rights.
What duties to cooperate apply to persons affected by regulatory law?
Persons affected by regulatory measures are subject to certain duties to cooperate, depending on the relevant statutory regulations. These may range from simple duties to provide information to active duties of tolerance and assistance. Duties to provide information are established, for example, by §§ 9, 10 VwVfG or by state-specific provisions. Any party deemed a disturber must tolerate and, where necessary, assist in the implementation of measures within their own sphere of responsibility, for example by granting access to properties (§ 44 PolG NRW). Violation of these duties to cooperate can lead to further compulsory measures (including coercive fines, substitute performance, direct coercion under the VwVG) and fines. However, the duties to cooperate are always limited by fundamental rights and the principle of proportionality, so requirements that are disproportionate or infringe upon fundamental rights in an unreasonable way are inadmissible.
