Concept and Significance of Subjective Public Right
Subjective public right is a central concept in German legal science and forms an essential interface between citizens and the state. It describes the enforceable legal position granted to individuals by public law vis-à-vis the state or other holders of public authority. In contrast to objective public law, which binds the general public, subjective public right is oriented toward the individual legal position and the individual claim.
Distinction: Subjective and Objective Public Law
The distinction between subjective and objective public law is fundamental to understanding administrative actions and legal protection options. While objective public law refers to the entirety of legal norms regulating the relationship between state and citizens as well as between state institutions, subjective public law describes the individual entitlement of a natural or legal person to demand a specific action, forbearance, or omission from the state. The objective norm is ‘individualized’ through the subjective legal position and thereby rendered enforceable for the individual.
Requirements for a Subjective Public Right
Various requirements must be met to establish a subjective public right:
Norm establishing the claim
There must be a public law norm that not only generally regulates the conduct of the executive but also confers upon the individual a personal, actionable legal position (‘legal power’). This norm must serve to protect at least the interests of the individual (so-called third-party protective norm).
Enforceability
Subjective public rights are characterized by their enforceability: the entitled person can assert their claim under administrative legal protection—especially by objection or action before an administrative court. The purpose of subjective public rights is to ensure individual legal protection against sovereign actions or omissions.
Types of Subjective Public Rights
Various types of subjective rights are distinguished in public law:
Claim rights
Claim rights grant the individual an entitlement to a specific administrative act by the authorities. An example is the right to be granted a building permit in accordance with § 70 BauO.
Defense rights
Defense rights, often formulated as fundamental rights, provide protection against interventions by public authority into individually protected legal interests, such as life, liberty, or property (e.g., Art. 2, Art. 14 GG).
Participation rights
Participation rights grant involvement in procedures or state benefits. This includes, for example, the right to a fair administrative procedure (§ 9 VwVfG).
Equality and protection rights
Equality rights secure equal treatment for individuals by public authority (e.g., Art. 3 GG), while protection rights serve, for example, to protect against disproportionate measures.
Sources of Subjective Public Rights
Fundamental rights
The key subjective public rights are the fundamental rights set out in the Basic Law (GG), such as the general right of personality, freedom of expression, or the guarantee of property.
Specialized statutes
Numerous specialized laws grant subjective public rights, such as the Social Code (SGB), the Building Code (BauGB), or environmental law.
Administrative procedures
Participation and involvement rights in administrative procedures (core: §§ 28-29 VwVfG), as well as rights to file inspection and to be heard, are also subjective public rights.
Subjective Public Right and Legal Protection
Subjective public right is a decisive requirement for the admissibility of many types of administrative court actions, especially action for annulment and action for an order (§§ 42 ff. VwGO). Only those who are injured in their own subjective public rights have standing (“standing to sue”) and can seek legal protection. The same applies to the filing of a constitutional complaint with the Federal Constitutional Court.
Standing to sue and violation of rights
In court proceedings, it must be demonstrated that one’s own legally protected position (subjective public right) may have been violated. The administrative courts then examine whether an enforceable claim actually exists.
Theoretical Approaches to Subjective Public Rights
In legal scholarship, various approaches exist for the dogmatic classification of subjective public rights:
Protective norm theory
The protective norm theory (developed by Otto Mayer) assumes that a norm confers a subjective public right if it serves at least also to protect individual interests.
Modified protective norm theory
According to the modified protective norm theory, it depends on whether the legislator intended at least also to protect individuals, and not merely the public interest.
Normative individual legal protection
This approach emphasizes the importance of individual legal protection in public law as an instrument for controlling state actions.
Distinctions and Problem Areas
Public Law or Private Law?
The distinction between subjective public law and private law entitlement is occasionally difficult. The decisive factor is whether the norm can be attributed to public law (subordination theory, modified subject theory).
Typical issues arising from norms
Disputes often arise as to the existence of subjective public rights, for example
- in building projects in the context of neighbor protection,
- in the subjective protection afforded by environmental regulations,
- in claims regarding excessive duration of proceedings.
Practical Importance
Subjective public right is a central instrument for safeguarding individual spheres of freedom vis-à-vis the state. It ensures that statutory requirements do not merely bind the state but also confer individual, enforceable rights. The granting of subjective public rights forms the basis for effective administrative protection and is an indispensable prerequisite for the rule of law and the development of public law.
References
- Maurer, Hartmut: Allgemeines Verwaltungsrecht, Munich (C.H. Beck).
- Forsthoff, Ernst: Lehrbuch des Verwaltungsrechts.
- Bonk/Grimmelmann, Verwaltungsverfahrensgesetz, Commentary.
- Dreier, Basic Law – Commentary.
This text comprehensively examines the concept of “subjective public right” in the context of German public law, presenting its dogmatic significance, legal requirements, forms, and the practically relevant delimitation questions.
Frequently Asked Questions
What is the difference between subjective public right and mere interest?
A subjective public right grants the individual an enforceable claim against the state or a public law corporation, entitling them to demand or resist a specific state action. In contrast, a mere interest constitutes only a desire not legally enforceable. This distinction criterion is particularly relevant in administrative law, since the admissibility of many types of actions—such as annulment or mandatory actions—requires the claimant to have a subjective public right. Not every interest protected by public norms is automatically a subjective public right. The decisive factor is whether the underlying norm is intended to protect the interests of individuals (protective norm theory). A classic example: the regulations regarding building permits do not only protect the public, but often also neighbors’ individual rights, so neighbors may in certain cases assert a subjective public right to neighbor protection.
What requirements must be met for a subjective public right to be recognized?
For a subjective public right to exist, there must be a public law norm that was not only enacted in the public interest but also at least aims to protect the interests of individuals or groups (dual purpose). Here, the protective norm theory serves as the central distinguishing criterion. Thus, the norm must be, according to its intent and purpose, directed at benefiting the individual, providing them with an advantage, or protecting them from disadvantages. Pure regulatory provisions or norms that solely serve the public interest (e.g., to maintain public order and security without an individual protection component) do not grant the individual a subjective public right. In cases of dispute, construction is based on the norm text and systematic, teleological, and if necessary, historical considerations.
What role does subjective public right play in administrative proceedings?
In German administrative procedural law, the assertion of a subjective public right is regularly a prerequisite for proceedings. Pursuant to § 42 (2) VwGO, an action in administrative law is admissible only if the claimant claims violation of their rights. Thus, subjective public right forms the basis for standing and determines whether the court will review individual sovereign acts at a citizen’s request. If the individual lacks subjective public right, they cannot successfully challenge administrative acts or sue for their issuance, having to resort to petitions or suggestions, which do not establish enforceable legal positions.
Can legal entities also be holders of subjective public rights?
Yes, private and public legal entities can also be holders of subjective public rights if the underlying norm provides for this or grants a protective effect to legal entities through interpretation. A classic example is the right to be heard in administrative proceedings (§ 28 VwVfG), which applies not only to natural persons, but also to legal entities, provided they are participants in the proceedings. Legal entities can also be protected by fundamental rights, such as the freedom of occupation (Art. 12 GG) or property rights (Art. 14 GG), and invoke subjective public rights.
What subjective public rights exist in the field of environmental law?
In environmental law, there are numerous norms intended at least partially to protect individuals, and which can thus establish subjective public rights. Examples include neighbor rights in environmentally relevant approvals (e.g., emission control, water protection), the right to participation and information under the Environmental Information Act, and the right to judicial review of certain authority decisions under the Environmental Remedies Act (UmwRG). However, many provisions of environmental law are primarily enacted in the public interest, so whether they also establish subjective rights for individuals always depends on how they are interpreted and the objective of the provision. Parties such as recognized environmental associations frequently derive their standing not from subjective rights, but from special procedural rights.
To what extent are subjective public rights influenced by constitutional law?
Constitutional guarantees, in particular fundamental rights, significantly influence the shaping and existence of subjective public rights. Many statutory subjective rights derive their validity and protective scope from the provisions of the Basic Law, especially Arts. 1 to 19 GG. For example, the freedom of occupation (Art. 12 GG), freedom of assembly (Art. 8 GG), property rights (Art. 14 GG), or the right to effective legal protection (Art. 19 (4) GG) can establish concrete subjective public rights against the state and its organs. In this context, fundamental rights serve as directly enforceable legal positions and influence the interpretation and application of statutory protective and claim norms in public law.
What legal consequences does the existence of a subjective public right have for the individual?
The existence of a subjective public right enables the individual to enforce their rights in court and obliges the administration to observe the right and grant the entitled person the protection or authority resulting from the respective right. They can file applications, challenge administrative acts, or have administrative actions or omissions reviewed. If the authority refuses to act lawfully, the affected person can, by action (e.g., action for performance or annulment), enforce compliance with their right or assert a claim for damages, if provided by law. Therefore, subjective public right is the central prerequisite for effective legal protection and secures for the individual a binding position within the public law framework.
