Factual-sovereign action
Term and definition
Factual-sovereign action is a term from German administrative law and refers to a particular form of state action in which the administration acts in a sovereign capacity without issuing an administrative act. Typically, factual-sovereign action means that the state or another public-law entity immediately acts, tolerates, or refrains from acting within the scope of its public-law duties without enacting a binding provision towards a specific person or group of persons. Thus, it differs from other main forms of sovereign administrative action, particularly the administrative act and the public-law contract.
Distinction from other types of action
Administrative enforcement, administrative act, and factual-sovereign action
While an administrative act is aimed at establishing a binding, individual legal consequence (§ 35 VwVfG), factual-sovereign action is characterized by the absence of any external regulation. It must also be distinguished from administrative enforcement in terms of compulsory enforcement or the actual implementation of an administrative act because, in factual-sovereign action, there is no order or enforcement of a specific legal norm; rather, it is merely actual administrative activity.
Public-law contract
Unlike a public-law contract (§§ 54 et seq. VwVfG), factual-sovereign action does not involve a bilateral, consensual exchange of rights and obligations.
Private law and fiscal action
Factual-sovereign action must be explicitly distinguished from private law administrative action (fiscal action). While the administration acts like a private party and uses private law means (e.g., purchase or rental) within fiscal activities, it employs specifically sovereign powers in factual-sovereign action, but without regulatory content.
Forms and examples of factual-sovereign action
Factual acts/administrative factual acts
Factual-sovereign action is usually implemented as a factual act. A factual act is an actual act by an authority aimed at achieving an outcome without a normative provision. Examples include:
- Technical measures by the police (e.g., traffic control by police officers)
- Provision of official information and disclosure, provided these do not constitute a binding provision
- Care and support for individuals by public institutions
- Supervision of school classes by teachers in public schools
- Organization of municipal events (e.g., city festivals, information evenings)
- Provision of advice by social service agencies
Factual acts with external effect
Factual-sovereign action is relevant when there is a direct external effect without the existence of a normative individual provision.
Legal basis and legal classification
Statutory basis and framework conditions
Like all sovereign actions of the administration, factual-sovereign action must be based on a sufficient statutory foundation. The relevant provisions are derived, depending on the area of action, from the Basic Law, the respective special laws of federal and state administration, or municipal regulations.
Obligation to law and justice
Factual-sovereign action is also subject to the principle of legality of the administration (reservation of and primacy of law) as set out in Art. 20(3) of the Basic Law, meaning that such action is bound by law and justice and by fundamental rights.
Legal protection and contestability
Legal remedies
Legal protection against factual-sovereign action—especially in cases of violation of subjective rights—is generally available through a general performance action (general administrative law protection claim) or, if applicable, through declaratory actions (§ 43 VwGO). Contesting an administrative act through an action for annulment (§ 42 para. 1 alt. 1 VwGO) is not possible, as factual-sovereign action lacks regulatory character.
Example cases for legal remedies
- Claims for damages due to breaches of official duty in connection with factual acts (e.g., incorrect information provided by government employees)
- Declaratory or injunctive actions in cases of continuing or repeated interventions
Relevance and significance in administrative practice
Significance for citizens and administration
Factual-sovereign action plays a central role in everyday administrative activity, as many activities inherent to administration are not performed by administrative acts but through actual, effective conduct.
Risks and typical issues
Distinguishing factual-sovereign action from other sovereign or private law forms of action is not always clear-cut and can lead to legal uncertainty in individual cases—especially when the regulatory content or external effect of a measure is unclear.
Further literature and case law
Literature
- Maurer, General Administrative Law
- Kopp/Ramsauer, VwVfG Commentary
- Sachs, Basic Course in Administrative Law
Key judicial decisions
- BVerwG, judgment of 7 October 1993 – 3 C 45.91 (on the distinction between factual-sovereign action and administrative acts)
- BVerfG, decision of 12 January 1994 – 1 BvR 434/87 (confirmation of the binding nature of fundamental rights in factual-sovereign action)
Summary Factual-sovereign action refers to a central form of administrative activity in which actual administrative conduct is carried out without regulatory effect towards the citizen, yet remains bound by constitutional and statutory requirements. The precise distinction from the administrative act and from private law conduct is critical for the legal remedies available to those affected and for legal certainty in administrative enforcement.
Frequently asked questions
When does factual-sovereign action exist, and how is it distinguished from administrative acts?
Factual-sovereign action occurs when an authority acts within its public-law duties without issuing an administrative act as defined in § 35 VwVfG (Administrative Procedure Act). Unlike an administrative act, which contains a regulatory provision with external effect for a specific case, factual-sovereign action is characterized by the absence of a legally significant, binding decision with external effect. Typical examples include actual administrative measures such as the provision of information, warnings, simple instructions, management of public property (e.g., maintenance of a park), or factual acts such as enforcement measures and police custody. The boundary with the administrative act is mainly drawn in that factual-sovereign action does not create, alter, or revoke a (unilateral) legal relationship by means of a sovereign act. In practice, the distinction is significant because special procedural rules, legal remedies, and formal requirements apply to administrative acts, which do not apply to factual-sovereign measures.
What are some examples of factual-sovereign action in public administration?
Factual-sovereign action includes numerous actual measures. Examples include the provision of information by authorities, the carrying out of inspections (e.g., food inspections without immediate sanctions), traffic control by police officers through hand signals, preventive measures such as putting up warning signs, assistance (e.g., fire department aid without issuing an administrative act), towing a vehicle for hazard prevention, as well as practical measures in the field of security and public order law or by social authorities, such as payment of monetary benefits following a prior administrative act. Measures for hazard prevention, such as removing obstacles from public roads, also fall under factual-sovereign action, provided no regulatory provision is made towards the citizen.
What legal remedies are available against factual-sovereign action?
Unlike in the case of administrative acts, legal remedies against factual-sovereign action are not directly available by means of an action for annulment or mandatory injunction under § 42 para. 1 VwGO (Code of Administrative Court Procedure). Since there is no regulatory provision in the sense of an administrative act, legal protection can generally only be sought by means of a general performance action (general action for obligation or injunction) or by way of a declaratory action (§ 43 VwGO). Interim legal protection proceedings under §§ 123 et seq. VwGO are often required, especially if the authority’s actual action (e.g., the towing of a vehicle) has immediate effects. Legal channels are open if the dispute is of a public-law nature and not of a constitutional nature; otherwise, recourse must be made to the ordinary courts (civil courts).
Do procedural requirements such as the duty to hear and to state reasons also apply to factual-sovereign action?
The specific procedural requirements applicable to administrative acts, such as the duty to hear under § 28 VwVfG or the duty to provide reasons under § 39 VwVfG, do not generally apply to factual-sovereign action. The reason is that factual-sovereign action does not constitute a regulation with external effect, and therefore the need for protection is generally regarded as lower. However, in special cases, general principles of the rule of law, such as the prohibition of arbitrariness, the requirement for effective legal protection, and the principle of proportionality, may apply. In addition, special laws can provide for specific form and procedural requirements that may also become relevant for factual-sovereign action.
What significance does factual-sovereign action have in police and public order law?
Factual-sovereign action is of central importance in police and public order law because many police measures are de facto but not regulatory. Examples include exclusion orders through direct physical influence, short-term custody, cordoning off hazardous areas, assistance at events, or the use of police coercive measures without a formal administrative act. Police tasks that are not aimed at ordering legal obligations are generally performed factually-sovereignly. The distinction is important because the legal bases for intervention, legal remedies, and follow-up obligations for the police depend on whether an administrative act or factual-sovereign action is involved.
How is judicial review of factual-sovereign action carried out?
Factual-sovereign action, like all sovereign action, is subject to judicial review for legality. The standards for review are the general administrative laws, special statutory bases of authority, and fundamental rights. Judicial review usually takes place retrospectively and focuses on the establishment of a legal violation and, if applicable, the restoration of lawful conditions (e.g., damages, injunction against future actions). The particularity is that judicial review of actual administrative conduct usually requires more complex investigation of the facts and occurs consecutively, since there is usually no object for challenge.
Are factual-sovereign measures subject to official liability?
Official liability also applies to factual-sovereign action according to Art. 34 Basic Law in conjunction with § 839 BGB, if a third party suffers damage due to a breach of official duty. The officeholder acts in the exercise of a public office and can thus potentially be held liable if the measure was unlawful and causally resulted in damage. The distinction from sovereign intervention administration is less relevant in this context, since official liability is generally applicable to both areas. The affected parties can usually assert their claims directly against the respective employing legal entity.
