Reopening the (administrative) procedure
Definition and legal classification
The reopening of the administrative procedure refers to the possibility of reopening an administrative procedure that has already been concluded under certain conditions. It is an instrument for correcting errors and ensuring the legality of administrative decisions. The concept is particularly anchored in German administrative law (§ 51 Administrative Procedure Act – VwVfG) and mainly concerns administrative acts that have become final. The aim of reopening is to allow for the correction of decisions if, subsequently, significant new facts or evidence become known or if the original decision-making basis ceases to exist.
Legal foundations
The reopening of an administrative procedure within the meaning of § 51 VwVfG is a special case of breaking the finality of decisions. The Administrative Procedure Act (VwVfG) regulates in the section “Reopening of the procedure” the conditions under which a concluded procedure can be reviewed again upon application or ex officio. Similar provisions also exist in the administrative procedure laws of the federal states, for specific areas such as social law (§ 44 et seq. Social Code Book Ten – SGB X) as well as tax law (§ 172 et seq. Fiscal Code – AO).
Overview of § 51 VwVfG
Section 51 VwVfG forms the key legal basis. The following requirements must be met for a procedure to be reopened:
- New facts or evidence: After the conclusion of the administrative procedure, new facts or evidence material to the law become known, which, either alone or in connection with already known facts, would have led to a different decision.
- Elimination of the legal basis: The administration made its decision on a basis that was subsequently revoked or amended (e.g. due to a constitutional court ruling).
- Favorable decision due to deception, coercion or bribery: The original decision was obtained through unlawful means.
Requirements for reopening
Application or ex officio
The reopening can take place either upon application by a party to the administrative procedure or ex officio. The application must be submitted to the authority that issued the administrative act in question. More specific conditions, especially deadlines and requirements for justification, are set out in the relevant statutory provisions.
Deadlines and application procedure
Typically, a time limit must be observed for reopening (generally three months from knowledge of the new fact or of the elimination of the legal basis). The applicant must make it credible that the requirements for reopening are met. A late application may be rejected, unless there are grounds for reinstating the previous status.
Legal consequences of reopening
Revocation and modification of the administrative act
If the procedure is reopened, the competent authority will re-examine the facts under consideration of the new facts, evidence or changed legal situation. If this examination shows that the original administrative act is unlawful, the act will either be revoked or modified. If the requirements are not met, the application will be rejected and the administrative act remains final.
Binding effect and protection of legitimate expectations
The reopening of the administrative procedure is typically characterized by the tension between the need to eliminate unlawful administrative acts and the protection of the legitimate expectations of the beneficiary. The decisive factor is always a balancing of the interests of the public in the legality of administration against the protection of confidence in the finality of decisions already made.
Distinction from similar instruments
Reopening vs. repetition of the procedure
Reopening pursuant to § 51 VwVfG differs from the repetition of the procedure, where a flawed administrative procedure is carried out anew due to a procedural error, without the need for new facts or evidence.
Distinction from revocation and withdrawal
While revocation and withdrawal (§§ 48, 49 VwVfG) allow for correction of an administrative act without reopening the entire administrative procedure, reopening (§ 51 VwVfG) is a special case, focusing in particular on the subsequent change of the factual or legal grounds for the decision.
Practical examples
- Proof of previously unknown facts: A construction project was approved, but years later new environmental risks emerge. A neighbor becomes aware of this and applies for reopening in order to have the permit reviewed based on the new facts.
- Change in the legal situation: An administrative act was based on a regulation that was later declared void by the Federal Constitutional Court. The person affected submits an application for reopening in accordance with § 51(1) No. 1 VwVfG.
- Deception as the original basis: An administrative act was fraudulently obtained and secured by means of a false affidavit. Reopening allows for correction on the basis of the invalid foundation for the decision.
Significance in the rule of law
The reopening of the administrative procedure is an essential instrument to ensure the lawfulness and fairness of official decisions. It constitutes an important exception to the finality of administrative acts and underscores the principle of substantive justice in administrative action.
References and further legal provisions
- Administrative Procedure Act (VwVfG), especially § 51 VwVfG
- Social Code Book Ten (SGB X) – §§ 44, 45 SGB X
- Fiscal Code (AO) – §§ 172 et seq. AO
- Commentaries and handbooks on administrative procedure law
This article provides a comprehensive overview of the reopening of the administrative procedure, the legal foundations, the legal requirements, and the practical significance in German administrative law.
Frequently asked questions
What legal requirements must be met for the reopening of an administrative procedure?
The reopening of an administrative procedure in Germany is primarily governed by § 51 of the Administrative Procedure Act (VwVfG) or the corresponding provisions of the administrative procedure laws of the federal states. The procedure can be reopened upon application by the person concerned or ex officio. Mandatory requirements are the existence of new facts or evidence which, through no fault of the applicant, could not have been asserted in the previous procedure; an annulled or amended judgment or another decision on a preliminary question; as well as the existence of new legal grounds, provided that these are materially retroactive in effect. It must also be assumed that the decision in the original procedure would have been different without these new circumstances. The period for submitting an application is generally three months from the date on which the new fact or ruling is known. If there are only changes in the legal situation without retroactive effect, the procedure generally cannot be reopened.
What are the legal consequences of a successful reopening of an administrative procedure?
If the application for reopening is granted, the procedure is resumed and a new decision on the merits is made. The previous administrative act can be revoked or replaced by a new administrative act, if the new facts, evidence, or decisions make a different decision necessary. The result of the reopened procedure may be more or less favorable to the applicant. The original decision remains in effect until the final substantive decision is made, unless the authority makes an interim arrangement (e.g., by suspending execution). The reopening itself thus does not constitute a retroactive annulment of the administrative act, but leads to a new segment of the proceedings, at the end of which a reassessment is made on the basis of the new facts.
Are there exceptions where reopening is excluded?
Yes, reopening is excluded if the administrative act was obtained with the participation of the party concerned by providing false information or concealing essential facts, unless the new facts or evidence were outside the sphere of the party concerned. Furthermore, reopening is excluded if the application is based solely on a changed legal opinion, if the legal situation has not actually changed in favor of the applicant, or if the change in law has no retroactive effect. Additionally, the revocation of favorable administrative acts is also subject to particular restrictions, so reopening in these cases is only possible under very limited circumstances.
What role does the applicant’s fault play?
The applicant’s fault is of central importance, especially when new facts or evidence are asserted. The procedure can only be reopened if the applicant could not, without their own fault, present the new facts or evidence in the earlier procedure. Negligence is sufficient here; if it was reasonable for the applicant to present the facts or evidence in the original procedure, reopening is ruled out. The assessment of whether there is fault depends on the specific circumstances of the individual case as well as on the degree of care that can be expected from a reasonable party.
Is the administrative act enforceable during reopening?
The administrative act basically remains enforceable as long as it has not been revoked or amended. Mere reopening has no suspensive effect. In special cases, however, execution of the administrative act can be suspended, in whole or in part, if there are serious doubts as to its legality, or if the party concerned faces undue hardship. The decision on this issue lies with the authority or, on appeal, with the administrative court. There is, however, no automatic obligation to suspend execution merely because the procedure is being reopened.
What is the significance of final court decisions for reopening?
Final court decisions are generally binding. However, if a court decision on a preliminary question has been annulled or changed, this may constitute grounds for reopening under § 51(1) No. 2 VwVfG, provided the decision was relevant to the administrative act. In all other cases, especially if the court decision concerns the main issue and is final, reopening is generally excluded, as it is accompanied by a substantive res judicata effect which precludes renewed review.
How is reopening by the authority ex officio regulated?
The authority may also reopen an administrative procedure ex officio. This usually occurs when, without a specific application by a party, the authority becomes convinced that the requirements for reopening are met, for example, because new relevant facts or evidence have come to its knowledge. The same strict requirements as for an application by a party must be met. There is generally no obligation to reopen ex officio, unless the principle of legality in administration leads to a different result in a specific case, for example, in the case of misuse of discretion or obvious unlawfulness of the original administrative act.
