Concept and Foundations of Regulatory Administrative Measures
Regulatory administrative measures are sovereign actions by regulatory authorities aimed at maintaining or restoring public safety and order. They form an essential instrument of regulatory law and in Germany are primarily governed by state laws, particularly the respective police and regulatory laws of the federal states.
The measures range from preventive orders to immediately enforceable interventions and serve to avert dangers to public safety, which include, in particular, the preservation of life, physical integrity, as well as the protection of property and other essential legal interests.
Legal Basis
Overview of Legal Sources
The legal basis for regulatory administrative measures is predominantly found in the police and regulatory laws of the federal states (e.g., Police and Regulatory Act [POG], Act on the Structure and Powers of Regulatory Authorities [OBG], or General Police and Regulatory Law – PolG). At the federal level, comparable regulations exist in the Federal Police Act (BPolG) and the Act on Administrative Offenses (OWiG). Municipal statutes, such as hazard prevention ordinances, supplement the legal framework.
Distinction from Police Law
Regulatory administrative measures must be clearly distinguished from police measures: while the police are primarily responsible for averting dangers to public safety under the respective police act, regulatory authorities are usually municipal agencies responsible for specific tasks of hazard prevention, for example in the area of public order.
Types of Regulatory Administrative Measures
General Orders
A common form of regulatory intervention is the general order. This is an administrative act directed at an open or specific group of persons and regulates a particular factual situation, such as the prohibition of certain events, curfews, or the closure of public spaces.
Individual Orders
Individual orders are specific measures directed at individual or specifically identifiable persons, such as the obligation to remove illegally dumped waste, the closure of a business in urgent cases, or the imposition of protective measures in cases of health hazards.
Immediate Enforcement and Means of Coercion
In urgent cases, the authority may enforce measures without conducting a prior hearing. Under the Administrative Enforcement Act, coercive means such as penalty payments, substitute performance, or direct force may be used if the recipient of the measure does not comply voluntarily.
Requirements for Regulatory Administrative Measures
Danger or Disturbance to Public Safety and Order
A central requirement for regulatory administrative measures is the existence of a danger or disturbance to public safety or order. These terms encompass both actual and concrete hazardous situations in which significant impairments must be averted.
Principle of Proportionality
Regulatory administrative measures may only be taken if they are necessary, suitable, and appropriate. The principle of proportionality requires that the means chosen for averting danger are suitable and that there is no less severe, equally effective means available.
Jurisdiction and Discretion
Jurisdiction is based on the relevant regulatory law. Authorities have statutory discretion in selecting appropriate measures, but this is limited by the principles of the rule of law. Errors or misuse of discretion can render measures unlawful.
Legal Consequences and Legal Protection
Enforcement Measures and Sanctions
If the recipient does not comply with a regulatory order, the authority may enforce the measure by coercion. In cases of unlawful conduct, fines or prohibitions may also be considered.
Legal Remedies
Legal remedies against regulatory administrative measures include the action for annulment or an objection. In particularly urgent situations, interim legal protection can also be requested from the administrative court (e.g., application to restore suspensive effect pursuant to § 80 (5) VwGO).
Limits of Regulatory Administrative Measures
Constitutional Restrictions
Regulatory administrative measures are subject to the requirements of the Basic Law, in particular fundamental rights such as the general right of personality, the right to property, and freedom of assembly. Any intervention must always be compatible with these rights and be based on sufficient legal foundations.
Priority and General Orders of Other Authorities
If primary jurisdiction rests with another special authority regulated by specific legislation or if a federal law regime takes precedence, regulatory administrative jurisdiction is superseded (e.g., infection control law, emissions control law).
Practical Examples and Typical Areas of Application
Classic areas of application for regulatory administrative measures include, among others:
- Noise protection regulations and prevention of disturbances of the peace
- Protection against dangers from animals or buildings
- Orders in connection with special events (e.g., major events, demonstrations)
- Measures for hazard prevention in health protection (e.g., infection control measures)
Summary
Regulatory administrative measures are a central management tool for ensuring public safety and order. They are subject to a complex legal framework of federal and state regulations, must comply with the principle of proportionality, and are bound by strict procedural requirements. Effective judicial protection simultaneously safeguards the fundamental rights of affected individuals and ensures oversight of state interventions.
Sources:
- Federal and State Police Acts
- Act on the Structure and Powers of Regulatory Authorities (OBG)
- Administrative Procedures Act (VwVfG)
- Administrative Court Rules (VwGO)
- Decisions of the Federal Constitutional Court
Frequently Asked Questions
What legal requirements must be met for the issuance of regulatory administrative measures?
Various legal requirements are decisive for the issuance of regulatory administrative measures. First, a statutory basis for empowerment is required, since administrative action in Germany is subject to the reservation of the law. These bases for empowerment are regularly found in the police laws of the federal states or in the regulatory authorities act. A prerequisite is the existence of a concrete danger to public safety or order. The authority must check whether the measure is suitable, necessary, and appropriate (proportional). The measure must not be more intensive than necessary to avert the danger. Additionally, it is important to note that the so-called ‘disturber principle’ usually applies, whereby primarily the person who caused or is responsible for the danger is addressed. Special rules exist for so-called non-disturbers or purpose causers. In particular, for intervention measures, the administrative procedure under the Administrative Procedures Act (VwVfG) must also be observed, for example, by hearing the affected party pursuant to § 28 VwVfG. Finally, when ordering regulatory administrative measures, careful consideration must be given to fundamental rights, especially the principle of proportionality and respect for human dignity.
How is the appropriate recipient of a regulatory administrative measure determined?
The selection of the recipient, also known as ‘recipient selection,’ is predominantly made by applying the disturber principle. According to this principle, a measure is usually directed against the person who caused the danger (conduct disturber) or from whose property the danger emanates (status disturber). If there is uncertainty, the authority may have a duty to investigate before targeting a certain recipient. Exceptions allow for uninvolved parties (non-disturbers or non-disturber considerations) to be addressed—such as when immediate danger can only be averted in this way and the actual disturber cannot be identified in time or reliably. Judicial scrutiny is particularly strict here in order to fully protect the rights of affected persons. In the case of several possible recipients, there is a margin of discretion that must be exercised on the basis of objective criteria.
What legal remedies are available against regulatory administrative measures?
Persons affected by regulatory administrative measures can challenge them using various legal remedies. In principle, the objection (Widerspruch) is the appropriate remedy, provided it is not excluded under the relevant state law or special statute. The objection usually has suspensive effect, unless the authority has ordered immediate enforcement. If the objection is not remedied, a court action can follow before the administrative court (§ 42 VwGO), often as an action for annulment or (in the case of measures already enforced) as an action for a declaratory judgment. In addition to the main proceedings, interim legal remedies, such as an application to restore suspensive effect pursuant to § 80 (5) VwGO, can be used to obtain swift judicial decisions. Moreover, depending on the case, a constitutional complaint may be possible, provided fundamental rights are affected and all other legal remedies have been exhausted.
When is a regulatory administrative measure proportionate?
The principle of proportionality is a central rule-of-law requirement for any regulatory administrative measure. A measure is proportionate if, first, it pursues a legitimate objective (purpose), second, it is suitable to achieve that objective, third, it is necessary (there must be no less severe, equally effective means), and fourth, it is appropriate, meaning the intervention must not be disproportionate to the intended success (appropriateness). The authority must therefore examine all milder means and justify its choice carefully. Particularly with sovereign interventions such as coercive measures, fines, or preventive bans, proportionality is carefully balanced on a case-by-case basis. Changes in the actual circumstances may require a reassessment of proportionality.
What is the significance of discretion in regulatory administrative measures?
Administrative discretion plays a central role in decisions concerning whether and how regulatory administrative measures are taken. Legislation typically uses ‘may’ formulations, granting the authority discretionary powers regarding whether to act (discretion to act) and whom to act against (discretion of selection). Discretion to act addresses the question of whether the authority takes action, and discretion of selection governs which specific measures are taken and against whom. However, this discretion is subject to legal limits: the authority must not act arbitrarily and must consider the principles of administrative action and the interests of the affected party. In disputes, courts review the exercise of discretion for errors, such as failure to exercise discretion (non-exercise of discretion), taking irrelevant factors into account (abuse of discretion), or exceeding legal boundaries (excess of discretion).
What role does the hearing of the affected party play in regulatory administrative measures?
The hearing of the affected party prior to the issuance of a regulatory administrative measure is an essential part of administrative procedure and serves the right to be heard under Art. 103 (1) Basic Law and § 28 VwVfG. Before an adverse measure is taken, the affected party must, in principle, be given the opportunity to comment on the facts relevant to the decision. The authority must properly conduct the hearing and take the arguments presented into account in its decision-making process. Exceptions to the requirement to hear the party are only permissible within narrow legal limits, such as in cases of imminent danger or when a hearing is manifestly unsuccessful. Failure to conduct a hearing may render the measure unlawful, except where the hearing is subsequently carried out and the procedural defect thus remedied.
