Definition and meaning of the withdrawal of administrative acts
The withdrawal of administrative acts is a central term in administrative law in Germany and refers to the annulment by an authority of an unlawful administrative act with retroactive effect. Withdrawal is thus to be distinguished from the power of revocation, which refers to lawful administrative acts. The legal basis for the withdrawal of administrative acts is set out in particular in Section 48 of the Administrative Procedure Act (VwVfG). These provisions apply at the federal level as well as in corresponding versions of the state administrative procedure acts.
Legal basis and scope of application
Statutory provisions
The withdrawal is based on Section 48 VwVfG. This provision regulates the requirements under which an unlawful administrative act with continuing effect can be annulled. In addition, there are specific rules in various special laws (for example in social law: Section 45 Social Security Code Book X – SGB X), so that the more specific provision must always be given priority.
Distinction from other types of annulment
- Revocation (Section 49 VwVfG): Revocation concerns the annulment of lawful administrative acts for the future.
- Withdrawal: In contrast, withdrawal relates exclusively to the elimination of unlawful administrative acts, regularly with retroactive effect to the date of their notification.
Requirements for withdrawal
1. Existence of an administrative act
Withdrawal presupposes the existence of an administrative act within the meaning of Section 35 VwVfG, that is, a sovereign measure by an authority in the field of public law to regulate an individual case with external effect.
2. Illegality of the administrative act
The administrative act must have been unlawful at the time it was issued. The illegality may relate to any prerequisite of the administrative act, such as competence, procedure, merits, or form.
a) Obvious and non-obvious unlawfulness
The authority independently examines whether an administrative act is unlawful. In cases of obvious violations, there is usually a strong public interest in withdrawal.
3. Discretion of the authority
According to Section 48(1) Sentence 1 VwVfG, withdrawal is at the discretion of the authority (‘may’). This means that the authority is not necessarily obliged to withdraw an unlawful administrative act, but must make a discretionary decision. In doing so, public and private interests must be weighed against each other.
Withdrawal of beneficial administrative acts (Section 48(1), (2) VwVfG)
Special considerations regarding protection of legitimate expectations
If the administrative act has a beneficial effect (for example, granted social benefits, building permit), the confidence of the person concerned must be given special consideration. According to Section 48(2) VwVfG, an unlawful beneficial administrative act may generally not be withdrawn, provided that the beneficiary has relied on its continued existence and that reliance is worthy of protection.
Exclusion of protection of legitimate expectations
Reliance is, in particular, not worthy of protection if:
- the beneficiary obtained the administrative act through fraudulent misrepresentation, threats, or bribery,
- the beneficiary knew of the illegality or failed to know as a result of gross negligence,
- the beneficiary received a monetary or divisible tangible benefit and withdrawal occurs within one year of gaining knowledge (so-called one-year period, Section 48(4) VwVfG).
Withdrawal of non-beneficial administrative acts
For non-beneficial administrative acts (such as burdensome measures like fee notifications), the authority is fundamentally freer, as there is no protection of legitimate expectations. Here too, withdrawal is based on a discretionary decision.
Legal consequences of withdrawal
Retroactive effect (‘ex tunc’)
Withdrawal terminates the administrative act retroactively. This means that the administrative act is deemed not to have existed from the outset. This gives rise to an obligation to reverse already performed services, such as the recovery of unduly paid amounts.
Notification and implementation
Withdrawal requires, in accordance with Section 39 VwVfG, an adequate statement of reasons and must be notified to the person concerned in order to become effective.
Reclaiming granted benefits
If, as a result of the withdrawal of a beneficial administrative act, repayment of received benefits is at issue, Section 49a VwVfG governs the procedure in this respect. Accordingly, payments made without legal grounds can be reclaimed, whereby further requirements, such as interest payments or set-off possibilities, must be observed.
Deadlines and limitation periods
One-year period for beneficial administrative acts
If a beneficial unlawful administrative act is annulled, the one-year period pursuant to Section 48(4) VwVfG must be observed. Withdrawal may only take place within one year of the authority gaining knowledge of the relevant facts.
Other deadlines
In addition to this period, the general limitation rules of administrative law as well as special statutory deadlines apply, for example for recourse claims in social law.
Relationship to the reopening order
Withdrawal must be distinguished from the reopening order. The latter concerns administrative acts that are final and binding, based on new evidence or facts (Section 51 VwVfG). Withdrawal, on the other hand, does not require new circumstances, but an original illegality.
Legal remedies
Against the withdrawal of an administrative act, the person concerned has access to the usual remedies under administrative law, in particular objection (Widerspruch) and action (Klage). In this context, the court examines both the substantive requirements and the authority’s exercise of discretion.
Withdrawal of administrative acts in social law and tax law
Social law
In social law, independent regulations are set out in Sections 44 et seq. SGB X. Protection of legitimate expectations and recovery claims are, in part, stricter here than under the general provisions of the VwVfG.
Tax law
For administrative acts in tax law, the provisions of the Fiscal Code (Abgabenordnung), in particular Section 130 AO (withdrawal of unlawful administrative acts), apply. Here too, there are special considerations regarding the protection of legitimate expectations and modalities for recourse.
Literature and further references
For a more in-depth analysis of the topic, it is recommended to consult the relevant commentaries on the Administrative Procedure Act, such as Kopp/Ramsauer VwVfG, or the literature on the General Part of Administrative Law.
Summary: Withdrawal of administrative acts is a significant instrument in administrative law, serving to correct unlawful administrative decisions. It is subject to stringent legal requirements and is governed by robust rules protecting legitimate expectations in favor of affected parties. Due to the nuanced statutory provisions and case law, the application of withdrawal remains complex and case-specific.
Frequently Asked Questions
When is the withdrawal of an unlawful beneficial administrative act permissible?
The withdrawal of an unlawful beneficial administrative act is in principle possible under Section 48(1) VwVfG, but strict requirements must be observed. A beneficial administrative act always exists when it confers a legal or economic advantage on the recipient. Withdrawal first presupposes that the administrative act is indeed unlawful; the illegality can relate to either formal or substantive aspects. It must also be examined whether, and to what extent, the beneficiary has relied on the existence of the administrative act and whether this reliance is worthy of protection according to Section 48(2) VwVfG. Protection of legitimate expectations may be excluded, in particular, if the beneficiary obtained the administrative act through fraudulent misrepresentation, threats, or bribery, or if he or she knew of the illegality or failed to know because of gross negligence. The authority is required to make a discretionary decision under Section 40 VwVfG regarding the ‘if’ and ‘how’ of the withdrawal; in doing so, the public interest in correcting administrative practices must be weighed against the individual’s legitimate expectations. Deadlines must also be observed, especially a one-year withdrawal period from learning of the illegal benefit (Section 48(4) VwVfG). Withdrawal generally has ex-tunc effect, i.e., the administrative act lapses retroactively, although for reasons of legal certainty, under certain conditions, a different regulation conferring ex-nunc effect or a compensation arrangement may also apply in the citizen’s favor.
What formal requirements must be observed when withdrawing an administrative act?
The general procedural rules of the Administrative Procedure Act (VwVfG) apply to the withdrawal of an administrative act. In principle, withdrawal must be in writing pursuant to Section 37(2) VwVfG so that the person concerned can understand the decision and, if necessary, lodge an appeal. The withdrawal notice must state the essential reasons for the withdrawal; this follows from the requirement to provide reasons in Section 39(1) VwVfG. In particular, the authority must present the factual and legal considerations as well as the weighing of public and private interests and the maintenance of the protection of legitimate expectations. It should also contain information on possible legal remedies (so-called instructions on legal remedies), so that the addressee can effectively challenge the withdrawal (Section 58 VwGO). The withdrawal only becomes legally effective upon notification to the person concerned (Section 43(1) VwVfG). Material errors of form, such as the absence of the requirement to provide reasons, may in some cases be remedied (Section 45 VwVfG), unless there is a serious violation leading to nullity.
What role does the protection of legitimate expectations play in the withdrawal of administrative acts?
Protection of legitimate expectations is a central aspect in the withdrawal of beneficial administrative acts. According to Section 48(2) VwVfG, an unlawful beneficial administrative act may, as a rule, not be withdrawn as long as the beneficiary has relied on its continued existence and that reliance is worthy of protection, in particular if he or she has made property dispositions in reliance on the administrative act that cannot be reversed at all or only with significant disadvantage. Exceptions apply if the beneficiary has acted fraudulently, for example by misrepresentation or bribery, or if he or she knew or should have known (gross negligence) about the unlawfulness. In such cases, the person concerned is not entitled to protection of legitimate expectations. The balancing of the public interest in lawful administration and the individual’s reliance is carried out on a case-by-case basis and must be explained in detail by the authority.
Which deadlines must be observed for withdrawal?
Of key importance is the period set out in Section 48(4) VwVfG: If a beneficial administrative act is withdrawn that is associated with monetary or tangible benefits, withdrawal may only take place within one year of the authority having knowledge of the facts justifying withdrawal. This one-year period is an exclusionary period and begins as soon as the competent authority has sufficient knowledge of the unlawfulness and the relevant circumstances of the benefit. If the authority misses this deadline, withdrawal is generally precluded in these cases. For other administrative acts, the general limitation period (usually three years) applies, unless special statutory provisions are relevant.
What are the legal consequences of withdrawal for benefits already granted to the beneficiary?
The withdrawal of an administrative act — generally with ex-tunc effect — means that the original administrative act is deemed void from the outset (retroactively). Accordingly, pursuant to Section 49a(1) VwVfG, benefits received on the basis of the withdrawn administrative act must be repaid. This applies to both monetary and tangible benefits. Repayment must be ordered separately (repayment notice), for which the same substantive legal requirements apply as for a burdensome administrative act. The addressee may, if necessary, raise objections such as loss of enrichment, in which case the requirements of ordinary civil enrichment liability may apply (Section 49a(2) VwVfG refers to Sections 812 et seq. BGB). The obligation to pay interest or potential limitation periods must also be taken into account. In individual cases, the authority may also be liable for damages or obliged to reimburse expenses if the person concerned made dispositions in reliance on the existence of the administrative act that cannot be reversed.
Can legal remedies be filed against the withdrawal of an administrative act?
The withdrawal of an administrative act is itself an administrative act within the meaning of Section 35 VwVfG and is therefore subject to objection (Widerspruch) under Section 68 VwGO and, after unsuccessful preliminary proceedings, to an action for annulment. The period for filing an objection is one month after notification of the withdrawal notice (Section 70 VwGO). If withdrawal is linked to a repayment, legal remedies must be pursued against both the withdrawal and the repayment notice. Legal remedies have suspensive effect unless otherwise provided by law or in exceptional cases by administrative order (Section 80(1), (2) VwGO). In ongoing court proceedings, the legality of the withdrawal can be fully reviewed, in particular compliance with substantive and procedural requirements and errors in the exercise of discretion are examined.
What are the differences between the revocation and annulment of an administrative act?
Annulment applies exclusively to unlawful administrative acts, whereas revocation concerns lawful administrative acts whose continuation is no longer to be maintained for reasons of public interest or due to subsequent changes. The legal basis for annulment is found in § 48 VwVfG and for revocation in § 49 VwVfG. The requirements, the extent of protection of legitimate expectations, the legal consequences, and, in particular, the retroactive effect of the sovereign intervention, differ significantly. While annulment generally has retroactive effect (ex tunc), the effect of revocation predominantly applies for the future (ex nunc). The discretionary criteria and specific limitations also vary in detail and must be carefully examined and substantiated in the respective administrative proceedings.
