Self-entry of the (superior) administrative authority
Definition and general significance
Der Self-entry of the (superior) administrative authority is a term from German administrative law. It describes the right or authority of a superior administrative body to act in a specific case in place of the originally responsible lower administrative body and to make an administrative decision itself. This self-entry constitutes a significant intervention in the principle of administrative competence and the hierarchy of administrative organization.
Legal basis of self-entry
General statutory provisions
Statutory regulations on self-entry can be found in particular in the administrative laws of the states and the federal government. Typical legal bases include, for example:
- Art. 3 para. 1 Bavarian Administrative Procedures Act (BayVwVfG)
- § 25 Administrative Procedures Act of North Rhine-Westphalia (VwVfG NRW)
- Specific sectoral laws in which self-entry powers are expressly regulated or permitted
As a rule, the relevant provisions specify under which conditions the right of self-entry can be exercised and how it is to be applied.
Types of self-entry provisions
A distinction is made between general und special self-entry regulations:
- General self-entry powers are contained in the general administrative procedure laws and grant the superior authority the right of self-entry regardless of the specific subject area.
- Specific self-entry regulations can be found in certain sectoral laws and set specific requirements and procedures for self-entry, e.g., in construction law or environmental protection law.
Requirements for self-entry
Hierarchy and subordination
Self-entry typically requires a hierarchical relationship of superiority and subordination. The authority entitled to self-entry must be hierarchically above the authority that is originally responsible. Therefore, self-entry is generally reserved for mid-level or higher authorities.
Procedure and discretion
Many administrative laws stipulate that self-entry is at the discretion of the superior authority. This means the higher authority may decide whether and when to exercise its right of self-entry. Moreover, self-entry may be tied to additional conditions, such as urgency, particular significance of the individual case, or failure on the part of the lower authority.
Formal requirements and hearing
Some applicable provisions require that the originally responsible authority is to be heard or informed prior to the exercise of self-entry. In some cases, a formal justification of the self-entry is also required to ensure the transparency of administrative action and to protect the rights of those affected.
Legal consequences and effects of self-entry
Replacement of substantive competence
If the superior authority exercises its right of self-entry, it assumes both the substantive and local competence for the relevant administrative matter. The originally competent lower authority thereby loses its power to decide in the matter.
Binding effect and continuation of proceedings
Our superior authority enters into the administrative proceedings with all rights and obligations and takes over full processing of the case. Previous procedural steps generally remain valid unless they are defective to the extent that repetition is necessary.
Legal remedies and judicial protection
Administrative acts issued through self-entry, like any other administrative decision, are subject to legal remedies provided by law (e.g., objection, action before the administrative court). Judicial review in the context of legal protection relates both to the substantive legal situation and to the formal prerequisites for self-entry.
Distinction from other instruments of administrative law
Instruction and supervision
A distinction exists with regard to the instrument of instruction: While in the case of an instruction, the superior authority guides the lower authority but leaves decision-making competence with the lower level. In contrast, with self-entry, the superior authority immediately assumes responsibility for the substantive processing.
Special supervision and substitute performance
Self-entry must also be distinguished from measures such as substitute execution or special technical supervision, since in these cases there is not necessarily a displacement of the competence of the lower authority.
Typical application cases and practical significance
Typical case scenarios
In practice, self-entry is relevant, for example,
- in cases of violations of applicable law by the lower authority,
- in particularly significant or urgent matters,
- when a lower authority remains inactive or a uniform administrative practice is not ensured,
- to ensure compliance with uniform federal or state standards.
Significance in the federal system
Within the federal system of Germany, self-entry is an important tool for ensuring the consistency and legality of administrative practice, particularly regarding federal or state oversight of indirect state and municipal administrations.
Limits and safeguards against misuse
Constitutional limitations
Self-entry is limited by the constitutional mandate of effective legal protection (Art. 19 para. 4 Basic Law) as well as the principles of separation of powers and administrative independence. Unlawful intrusions into the guarantee of self-administration (Art. 28 para. 2 Basic Law) must be avoided.
Remedial legal protection
Self-entries that have been carried out can be subject to judicial review. In doing so, the courts in particular verify whether the legal prerequisites for self-entry were met and whether statutory limits were observed.
Literature and further legal sources
- [Beispiele aus allgemeinen Verwaltungsgesetzen der Länder und des Bundes]
- [Fachkommentare zum Verwaltungsverfahrensgesetz]
- [Urteile der Verwaltungsgerichte zum Selbsteintrittsrecht]
Der Self-entry of the (superior) administrative authority is a central instrument for ensuring consistent, lawful, and effective administrative practice. The statutory requirements and limits must therefore be carefully observed in light of administrative organization and fundamental rights.
Frequently Asked Questions
When is self-entry by the superior administrative authority permissible?
Self-entry by the superior administrative authority is generally provided for by law in the respective administrative regulations or specific statutory provisions, for example in § 3 para. 1 VwVfG at the federal level or equivalent state regulations. Self-entry is particularly permitted if there is a public interest in a uniform, appropriate, or swift decision, or where the substantive competence of the lower authority recedes. A typical requirement is that discretion regarding self-entry has been properly exercised. There is no need for procedural errors to be present or for a specific application by a party to exist, but there must not be any exclusionary grounds under special law. Furthermore, self-entry does not constitute a disciplinary measure against the subordinate authority but is a correct exercise of hierarchical internal control within the administrative organization.
How does self-entry affect ongoing administrative proceedings?
Upon exercise of self-entry, the superior authority assumes responsibility for the relevant procedure, meaning that all procedural actions from that point on must be conducted by it. Previously enacted procedural acts of the original authority generally retain their legal effect unless expressly revoked or amended. Processes such as hearing the parties, access to files, or issuing decisions now run through the higher instance. The parties are generally notified of the change in competence unless the transfer is obvious and recognizable in the proceedings. Procedural deadlines continue unless new deadlines are set by the superior authority’s measure.
What legal consequences arise for the subordinate authority after self-entry has been exercised?
After valid self-entry, the subordinate authority is excluded from further actions regarding the respective administrative procedure. It loses the decision-making authority for the key substantive decision but may still perform supporting official acts—on instruction from the superior authority—(e.g., gathering evidence, executing service, enforcement measures). It remains responsible for measures taken within its previous competence unless these are revoked or declared invalid by the superior authority. At the same time, the subordinate body may no longer act as the competent agency in legal remedy procedures.
Can self-entry be challenged, and if so, how?
As a rule, self-entry constitutes a purely internal administrative organizational act and, according to general opinion, is not an administrative act with external effect towards citizens. Therefore, it cannot be challenged in isolation, but only within the context of any subsequently issued adverse administrative act by the superior authority, for example in an action for annulment pursuant to § 42 VwGO. Affected officials of the authorities and applicants are generally not entitled to a separate legal remedy against the self-entry decision as such.
What legal limitations must be observed when applying self-entry?
When exercising self-entry, the superior authority must observe the principle of equal treatment and the prohibition of arbitrariness. It is also obliged to exercise its discretion in accordance with the law and in a proportionate manner. Restrictions may arise from specific statutory regulations, which may either exclude self-entry or permit it only under special conditions. Furthermore, legitimate expectations of third parties may only be affected in strict compliance with the principle of protection of legitimate expectations. Finally, the Administrative Procedures Act regarding participation and hearing obligations continues to apply.
What impact does self-entry have on ongoing legal remedy proceedings?
If a legal remedy proceeding is already pending before a subordinate authority, self-entry generally leads to the transfer of the procedure to the now competent superior instance. Time limits for filing and handling legal remedies remain unaffected. If self-entry results in a shortening of the procedural path or the instance chain, the superior authority must review and decide on all relevant legal remedies, provided it is substantively competent. A legal remedy submitted after the substantive decision continues to be admissible in principle, with transferred stages being considered in the review.
What obligations to cooperate does the subordinate authority have after self-entry?
Even after self-entry, the subordinate authority remains obliged to cooperate within the framework of the administrative organization. This includes in particular handing over files, supporting the collection of evidence, and providing information about investigations already conducted. The superior authority may issue instructions to facilitate proceedings, and non-compliance with these instructions may have official consequences. A complete release from all procedural activities only takes effect once the superior instance expressly declares it or the proceedings have concluded.
