Concept and Significance of Administrative Self-Binding
Die Administrative Self-Binding refers in German administrative law to the legal phenomenon whereby an authority, by repeatedly and consistently exercising discretion or judgments in comparable situations, effectively binds itself. This principle is particularly relevant in the context of administrative decisions where the administrative body is given discretion by law. Through the consistent application of a specific administrative practice, this practice attains legal binding effect, from which the authority may only deviate under certain conditions. Administrative self-binding serves the principle of equal treatment under Art. 3 para. 1 of the Basic Law (GG) and ensures legal certainty and reliability of administrative actions.
Legal Basis of Self-Binding
Discretion and Margin of Judgment
Self-binding particularly covers the exercise of discretion (§ 40 Administrative Procedure Act – VwVfG; § 114 Code of Administrative Court Procedure – VwGO) as well as areas where the administration has a margin of judgment. A margin of discretion means that the administration is not only given a legal possibility, but also a choice regarding how to assess and decide on a specific administrative situation within the framework of statutory provisions. Typical examples include powers under police and regulatory law, building law, or social law.
Art. 3 para. 1 of the Basic Law (principle of equal treatment)
The underlying principle of self-binding is substantially supported by the principle of equal treatment according to Art. 3 para. 1 GG. The administration is obliged to decide equally under the same factual and legal conditions and must not treat similar cases unequally without objective reason (prohibition of arbitrariness). This binding effect arises as a result of consistent administrative practice, when the administration has repeatedly acted according to a particular rule.
Origin and Requirements of Self-Binding
Consistent Administrative Practice
A prerequisite for self-binding is the development of a consistent administrative practice. Individual or merely occasional decisions are not sufficient. Rather, the authority must typically have exercised its discretionary or decision-making powers in the same way in comparable situations. This results in an expectation of similar decisions in future cases.
Distinction from Administrative Guidelines
Administrative self-binding must be distinguished from administrative guidelines. Administrative guidelines are internal instructions for authorities but generally do not have external effects or direct binding force for citizens. Self-binding, by contrast, arises from actual decision-making practice, regardless of whether an administrative guideline exists.
Binding Effect and Its Limits
The consequence of self-binding is that the authority, in a new case with similar circumstances, must generally decide in the same way. A deviation is permissible only if there is an objective reason or a change in the factual or legal situation. Changes in a consistent administrative practice must be based on comprehensible considerations and may not be arbitrary.
Legal Consequences and Effects
Bound Decision Despite Discretion
Although the law regularly grants the authority a margin of decision (discretion), it is obligated by practical self-binding to decide analogously in comparable future cases. In doing so, the administrative body effectively relinquishes part of its discretion. This strengthens legal certainty and citizens’ trust in the continuity and predictability of administrative actions.
Legal Protection for Individuals
Citizens can invoke the ongoing administrative practice developed through self-binding. Deviations by the authority without objective reasons can be challenged through judicial review. The administrative court may find a violation if the authority deviates from an established administrative practice without an objective reason (violation of Art. 3 para. 1 GG).
Limits and Possibilities for Deviation
Justification for Deviation
A deviation from one’s own administrative practice is always possible if there are objective reasons, for example, due to changed legal conditions, a subsequent change in the factual or legal situation, or a reassessment of interests. Changes as a result of judicial jurisprudence can also justify adjustment of practice.
Limitation by Superior Law
If there is a conflict between self-binding and superior law, the latter takes precedence. Self-binding cannot result in the authority consistently making unlawful or erroneous decisions. The principle of legality (Art. 20 para. 3 GG) obligates the administration to comply with laws and regulations.
Relationship to Other Legal Concepts
Distinction from Discretion Reduced to Zero
Administrative self-binding is to be distinguished from the Discretion Reduced to Zero While in the case of self-binding there remains a margin of discretion, albeit factually limited, discretion reduced to zero means that only one single decision is lawful without exception.
Distinction from Administrative Practice and Guidelines
As previously explained, self-binding does not arise from administrative guidelines, but from a consistently observable practice of the authorities. Nevertheless, administrative guidelines can serve as a basis for such practice.
Practical Application Examples
Building Permits
If a municipality regularly grants certain exemptions in cases with comparable building law requirements, it must treat similar construction projects accordingly in the future, unless there are objective reasons for deviation.
Granting Voluntary Benefits
If an authority regularly awards grants or subsidies according to identical criteria, an applicant can, in future cases, refer to the established administrative practice and demand equal treatment.
Self-Binding and Judicial Review
Role of Administrative Courts
Administrative courts examine whether the administration, in a specific case, deviated from a firmly established administrative practice without an objective reason. The court examines whether the requirements for breaking self-binding are met and whether the principle of equal treatment was sufficiently observed.
Literature and Jurisprudence
The case law of the Federal Constitutional Court and the Federal Administrative Court is of central importance, in particular concerning the application of the principle of equal treatment and the requirements for self-binding. Important decisions include, for example, BVerwG, judgment of 12 December 1975 – VII C 81.74, and BVerfG, decision of 18 October 1972 – 1 BvR 992/69.
Summary
Administrative self-binding is a fundamental principle of German administrative law, based on the principle of equal treatment under the Basic Law. It limits the administration’s discretion and scope of judgment in favor of legal certainty and equality. The practice requires authorities to make fair and consistent decisions and protects affected individuals from arbitrary deviations. Deviations are only permissible if there are valid factual or legal reasons. Judicial review ensures compliance with these principles and the enforcement of individual rights.
Frequently Asked Questions
In which scenarios is administrative self-binding legally relevant?
Administrative self-binding is particularly legally relevant whenever administrative decisions are made in comparable situations and uniform application of the applicable law is to be expected in such cases. In practice, self-binding is especially important in situations where similar discretionary decisions are repeatedly made, such as granting public funding, the use of special usage rights in public spaces, or management of housing by municipal entities. Self-binding serves to ensure compliance with the principle of equal treatment (Art. 3 para. 1 GG), meaning that deviations from previous administrative practice require special justification. In these scenarios, the administration is required either to act according to previous practices or to clearly explain and justify and legally substantiate any changes.
What are the legal limits for administrative self-binding?
Self-binding is limited where mandatory laws oppose it or a change has occurred in the statutory or regulatory bases. Binding to previous administrative practice must not lead to unlawful actions or undermine legislative values. In addition, for reasons of public welfare or due to changed circumstances, it may be lawful to deviate from prior practice; however, this must always be done transparently, with justification, and in compliance with the principle of equal treatment. Furthermore, self-binding must not create obligations for future administrative leaders if there is no sufficiently democratically legitimized basis.
Is the administration obliged to always maintain its self-binding?
The administration is not fundamentally bound forever to a previously established self-binding and may change or abandon it. However, a prerequisite is that any deviation from previous administrative practice is objectively justified. A change in administrative practice requires a comprehensible and sufficiently justified presentation of the changed factual situation or legal opinion. Furthermore, the legitimate trust of those affected gains importance: Where there is justified reliance on the continuation of previous administrative practice, any change may only occur after weighing the competing interests and in compliance with the principle of good faith (§ 242 BGB, analogous in administrative law).
Can administrative self-binding create a legal claim for the citizen?
Self-binding of the administration generally does not create a claim to a specific decision but only to an error-free discretionary decision, observing the principle of equal treatment. A subjective public right to equal treatment can be derived from the fact that the administration is bound to its previous practice, as long as it is not lawfully changed. If the authority deviates arbitrarily or without understandable reason from an established practice, this may constitute an error in discretion or an infringement of equality, which the citizen can challenge in court.
How does a change in administrative practice affect self-binding?
A change in administrative practice is possible while maintaining the principles of legal certainty and legitimate expectations. In such cases, the authority is obliged to disclose the reasons for changing an established practice and to transparently explain why it is now proceeding differently in individual cases. The change must not be arbitrary or unsubstantiated, but must be based on objective, factual reasons, such as new legal requirements or changed circumstances. Persons who, in justified reliance on the continuation of prior practice, have made decisions, may be entitled to legitimate expectations under certain conditions.
What role does the principle of equality play in administrative self-binding?
The principle of equality plays a central role in administrative self-binding. According to Art. 3 para. 1 GG, comparable situations must essentially be treated equally. If the authority decides to act according to a specific pattern in similar cases, it must generally adhere to this approach and may only deviate for objective reasons. Violations of the principle of equal treatment are subject to judicial review and can lead to the annulment of an administrative decision if the administration deviates from its previous practice without sufficient justification.
Are administrative practices established through self-binding and internal instructions legally equivalent?
Self-binding of the administration based on consistent administrative practice and internal instructions are to be distinguished. While self-binding arises through actual, repeated administrative practice consistently applied externally, internal instructions are internal administrative orders that do not have immediate external effect. Self-binding to an administrative practice therefore creates claims to equal treatment externally, whereas internal instructions only take effect internally and do not establish individual rights for the citizen. Nevertheless, internal instructions can also, in practice, lead to the establishment of administrative practices that become legally relevant due to the principle of equality if they are actually applied uniformly.
