Definition and significance of the reservation of revocation
Der Reservation of revocation is a term from German administrative law and denotes an official declaration whereby the requested or already granted benefit, license, or approval is subject to the reservation of its subsequent revocation. The reservation of revocation thus constitutes a special form of administrative act with conditions and enables the authority to later intervene in the status of the administrative act under clearly defined circumstances. This can be of particular importance in the case of subsidy approvals, licenses, and other favorable administrative acts.
Legal basis and statutory regulations
Administrative Procedure Act (VwVfG)
The legal basis for the reservation of revocation is mainly found in the Administrative Procedure Act (VwVfG), in particular in § 36 VwVfG (“Ancillary provisions to the administrative act”). It is expressly regulated there that administrative acts can be provided with ancillary provisions, including the reservation of revocation. The legislature differentiates here between various types of ancillary provisions: conditions, time limits, requirements, as well as revocation and revocation reservations.
Content of § 36(2) VwVfG
According to § 36 paragraph 2 number 3 VwVfG, an administrative act can be issued with the reservation of subsequent revocation or subsequent rescission. Thus, the legislature grants the authority the possibility to issue an administrative act not as final, but subject to a subsequent withdrawal or rescission. In contrast to the reservation of revocation, the reservation of rescission not only allows for revocation with effect for the future but also for withdrawal with retroactive effect.
Other applicable provisions
In addition to the Administrative Procedure Act, regulations on the reservation of revocation can also be found in sector-specific laws, such as the Social Code (SGB), specifically in the context of the approval of social benefits.
Practical areas of application for the reservation of revocation
Subsidy law
In subsidy law, the reservation of revocation is frequently applied. Public subsidies can, for example, be issued subject to the reservation of revocation if it is unclear whether the conditions for approval will continue to be met or could possibly lapse later.
Permit and licensing law
The authority may also attach a reservation of revocation to permits (for example, in building or commercial law). This enables more flexible control over whether the requirements for maintaining the permit continue to be met.
Social law
In social law, the reservation of revocation is used especially when the requirements for the granting of benefits may change in the future or events may occur that remove the entitlement.
Distinction from other ancillary provisions
The reservation of revocation must be distinguished from other ancillary provisions of the administrative act:
- Reservation of withdrawal: Only allows the subsequent elimination of a favorable administrative act with effect for the future.
- Condition: The legal effects of the administrative act only arise upon the occurrence of a specific event or lapse if that event does not occur.
- Time limit: Specifies the validity of the administrative act in terms of time.
- Requirement: Obligates the beneficiary to perform or refrain from a certain act.
Der Difference between the reservation of revocation and the reservation of withdrawal lies in the fact that the reservation of revocation also permits withdrawal (revocation with retroactive effect), whereas the reservation of withdrawal only applies prospectively.
Requirements and prerequisites
Clarity
A key requirement for an effective reservation of revocation is the clarity of the ancillary provision. The circumstances under which revocation can occur must be clearly identifiable and unambiguously stated. This serves legal certainty and transparency for the recipient of the administrative act.
Obligation to provide reasons
The authority is obligated to provide factual reasons for the reservation of revocation. The issuance of a reservation of revocation without substantive justification may lead to the administrative act being found unlawful upon legal review.
Principle of proportionality
The use of the reservation of revocation must, in accordance with the general principle of proportionality, be limited to what is necessary to achieve the official objective. It must not be imposed arbitrarily or abusively and must be objectively related to the purpose of the regulation.
Legal consequences of exercising the reservation of revocation
Withdrawal or rescission of the administrative act
The exercise of the reservation of revocation results in the administrative act being annulled in whole or in part. This can, depending on its design, take effect either retroactively (ex tunc) or prospectively (ex nunc).
Claims for restitution and repayment
If a subsidy, for example, is revoked retroactively through the exercise of a reservation of revocation, this may give rise to repayment claims by the authority against the recipient. This also applies to permits and approvals that conveyed economic advantages.
Legal remedies for affected parties
Affected parties have recourse to administrative remedies against the exercise of a reservation of revocation. They may file objections against the retroactive or prospective rescission of the administrative act and, if necessary, seek judicial protection.
Significance in the context of protection of legitimate expectations
The reservation of revocation affects the beneficiary’s trust in the continuation of the administrative act. If an administrative act is issued with a reservation of revocation, the recipient must be aware that their entitlement can subsequently lapse at any time under the stated conditions. Protection of legitimate expectations is thus in tension with the administration’s regulatory powers. Jurisprudence and legislation seek to balance this by imposing clear requirements on the clarity and justification of reservations of revocation.
Summary and conclusion
Der Reservation of revocation is a key instrument for German administrative authorities to respond flexibly and securely under the law to changing circumstances or future developments. It is applied in a variety of legal areas, especially in subsidy, permit, and social law. By complying with statutory requirements regarding clarity, justification, and proportionality, it is ensured that both the interests of the public and individuals are taken into account. The reservation of revocation thus serves the sustainable management of public policy while safeguarding the legal protection of those affected.
See also:
- Administrative act
- Ancillary provision
- Reservation of withdrawal
- General administrative law
Further reading:
- Administrative Procedure Act (VwVfG)
- Textbooks on administrative and administrative procedure law
Frequently asked questions
When does the reservation of revocation apply in legal contractual relationships?
The reservation of revocation often concerns situations where a party contractually reserves the right to revoke a decision already made or a benefit granted under certain circumstances. In legal contractual relationships, the reservation of revocation plays a role especially when approval is granted subject to certain requirements, conditions, or changing circumstances. Typical examples are found in administrative law, such as the granting of grants or subsidies, but also in labor law in the case of fixed-term employment contracts with a particular reason. The reservation is then explicitly regulated in the contract or administrative act. As soon as the circumstances mentioned in the contract or administrative act occur, the respective party can exercise its right to revoke the agreement with effect for the future (ex nunc) or even retroactively (ex tunc). The legal basis can be found in the relevant laws, such as §§ 36, 48 Administrative Procedure Act (VwVfG), or in the corresponding provisions of civil law.
What legal requirements must be met to exercise a reservation of revocation?
In order for the reservation of revocation to be exercised effectively, the requirements specified in the contract, administrative act, or law must be strictly met. This primarily requires that the reservation of revocation was legally agreed upon or imposed. The conditions under which revocation may take place must be clearly and sufficiently determined so that all parties know under what circumstances revocation is possible. In individual cases, a balancing of interests may also be required, especially if the revocation threatens to cause significant disadvantages to the affected party. In public law, the principle of protection of legitimate expectations often must also be observed (§ 48(2) VwVfG). A violation of formal or substantive requirements can render the exercise of the reservation of revocation ineffective.
Can legal remedies be filed against the revocation?
Affected parties generally have the opportunity to take legal action against the exercise of a reservation of revocation. In public law—such as administrative revocation notices—there is usually a right to be heard, and objections as well as actions for annulment can be brought before the administrative court. In civil law, the affected party can have the legality of the revocation reviewed in court, especially if they believe that the requirements for exercising the reservation of revocation were not met or if the exercise was in bad faith. The prospects of success depend on the circumstances of the individual case and the design and transparency of the reservation.
What are the consequences of exercising the reservation of revocation for the affected parties?
The legal consequences of exercising a reservation of revocation depend essentially on the structure of the reservation and the applicable legal framework. As a rule, its exercise leads to the original decision—such as an approval, contract, or administrative act—being fully or partially rescinded. As a result, the affected party usually loses legal entitlements to benefits or rights from the rescinded contract or act. Depending on its structure, the revocation can take effect ex nunc (from now on) or ex tunc (retroactively), which is especially important for matters of reimbursement or damages. Claims for reversal or repayment may also arise if, for example, funding was received unlawfully.
To what extent is the reservation of revocation regulated by German law?
German law contains specific regulations on reservations of revocation particularly in administrative law (§ 36 VwVfG regulates ancillary provisions to administrative acts, which include the reservation of withdrawal) and, in some cases, in civil law, such as for fixed-term contracts or special rights of termination. The reservation of revocation itself is not an independent legal institution, but is usually formed as a contractually agreed or legally prescribed ancillary provision. The details of validity and exercise depend on the relevant field of law. The basic principle, however, is that the prerequisites, scope, and effects of the reservation must be clear and definite.
Can reservations of revocation be amended or revoked later?
The subsequent amendment or revocation of an already agreed reservation of revocation is generally possible, but requires the consent of all affected parties (contracting parties) or a corresponding statutory authorization. In administrative law, this can also take place via an amendment notice, which itself is subject to legal scrutiny. Without the consent of all parties involved, a unilateral change is legally contestable unless statutory special provisions apply. Changes to the conditions of a reservation of revocation may also require transparent documentation and notification to the affected party in certain cases.
What is the significance of the principle of protection of legitimate expectations when exercising a reservation of revocation?
The principle of protection of legitimate expectations is of particular importance in public law. It states that a lawful administrative act, on which the citizen could rely, should generally not be withdrawn or revoked lightly. However, if the administrative act explicitly contains a reservation of revocation, that trust may be limited. Nevertheless, in each case the exercise of the reservation of revocation requires a balancing of interests, weighing the protection of legitimate expectations against the public interest in revocation. If there is no compelling reason for the revocation, or if the effects on the affected party are disproportionate, the principle of protection of legitimate expectations may exceptionally prevail and render the exercise of the reservation of revocation legally ineffective.
