Term and significance of the collection procedure
The term collection procedure in the legal context refers to all legally regulated procedures for the official determination and investigation of facts, data, or circumstances that are relevant for administrative, judicial, or tax decisions. The collection procedure is a central element in the German legal system, especially in administrative law, tax law, social law as well as numerous special laws, and forms the basis for the lawful acquisition of data and decision-making by state authorities.
The collection procedure varies depending on the area of law both in its purpose and in its procedural rules. Fundamental is always the principle of legality and proportionality in the collection of relevant information.
Collection procedure in administrative law
General principles
In administrative law, the collection procedure serves to clarify the facts relevant to the decision (§ 24 Administrative Procedure Act – VwVfG). The procedure often constitutes the first step of an official decision (e.g., issuing an administrative act) and ensures that the administrative authority has sufficient facts for making a decision.
Rights of participation and obligations to cooperate
Participants in the administrative procedure are obliged to cooperate insofar as this is provided by law. At the same time, affected persons enjoy protective rights, for instance with regard to data protection and the right to be heard. The procedural rules determine to what extent information must be provided and in what manner state authorities may conduct investigations ex officio (principle of ex officio investigation, § 24 VwVfG).
Forms of the collection procedure
Collection procedures can take the form of requests for information, hearings, on-site inspections, file inspections, witness interviews, or by involving external expert reports.
Collection procedure in tax law
Purpose and legal basis
Tax law uses the term collection procedure in a broad sense for all measures aimed at determining tax-relevant facts (principle of collection, § 88 Fiscal Code – AO). The aim is to enable the tax office to make an accurate assessment.
Typical instruments
These include, in particular:
- Tax returns and filings of the taxpayers
- Requests for information according to §§ 93-97 AO
- External audits (tax audits)
- Tax investigation measures pursuant to §§ 208 ff. AO
Legal protection and limitations
The collection procedure is limited by data protection provisions and the principle of proportionality. Taxpayers may seek legal protection against disproportionate or unlawful collection measures.
Collection procedure in social law
Legal framework
In social law, the collection procedure for determining entitlement to social benefits is regulated by the Social Code (SGB I and X). Social benefit agencies are obliged to ascertain the factual requirements of the entitlement norm necessary for a decision (§ 20 SGB X).
Obligation to provide information and documents
Entitled persons and third parties may be required to provide information and submit documents (§§ 60-65 SGB I). The boundaries are set by unreasonableness and personal data protection.
Data protection and data security
The collection procedure is particularly limited here by the principle of social secrecy (§ 35 SGB I) and requirements arising from the General Data Protection Regulation (GDPR).
Overview of procedural types and methods
Written and oral collection procedures
- Written collection procedure: Use of forms, questionnaires, written requests for information
- Oral collection procedure: Interviews, hearings, oral examinations
Electronic collection procedures
With advancing digitalization, electronic data collection is increasingly being used. These must comply with special security and data protection requirements.
Legal protection in the collection procedure
Preventive and subsequent legal protection
Persons concerned have the possibility to defend themselves preventively (e.g., by lodging a complaint) or subsequently (e.g., in judicial proceedings) against measures of a collection procedure, particularly when fundamental rights are impaired. This includes, for example, the right to informational self-determination and the protection of personal data.
Excursus: Collection procedure in the European and international context
The term collection procedure is also relevant in European and international law, for example in the context of statistical surveys (EU regulations) or mutual legal assistance between states. National and supranational data protection and legal protection requirements often have to be observed.
Significance of the collection procedure for the application of the law
The collection procedure forms the factual basis for sovereign decisions and is an indispensable part of a rule-of-law administration. It ensures transparency, legal certainty, and serves to protect the interests of all parties involved.
Summary and outlook
The collection procedure is a complex term anchored in numerous areas of law. Its practical and legal significance ranges from clarifying the facts to data protection and procedural limits and up to judicial review. The development towards digital data collection and the increasing requirements of data protection will continue to shape the legal design of collection procedures in the future and require careful attention to the relevant legal requirements.
Frequently Asked Questions
Which legal principles regulate the collection procedure in Germany?
The collection procedure in Germany is regulated by numerous laws and regulations, which may differ depending on the field of law. Key legal bases include, for example, the Federal Statistics Act (BStatG), the Social Code (especially SGB I and SGB X), the Fiscal Code (AO) for tax collections, as well as specific laws such as the Tax Advisory Act or the Act on Proceedings in Family Matters and Non-Contentious Jurisdiction (FamFG). These legal provisions define who is authorized to collect, what data may be collected, what forms of data processing are permitted, and what obligations to cooperate apply to those affected. Overarching are always the fundamental rights, in particular the right to informational self-determination and data protection in accordance with the General Data Protection Regulation (GDPR) and the Federal Data Protection Act (BDSG).
What obligations and rights do the parties involved have within the framework of the collection procedure?
In the legal context, persons affected by the collection procedure have obligations to cooperate. This means that they are often required to provide correct and complete information, give statements or submit documents, provided there is a legal basis for this. At the same time, those affected also enjoy extensive rights, such as the right to information about stored data, the correction of incorrect information or the right to object to certain data collections. Authorities are obliged to limit the data collection to what is necessary (principle of data minimization) and to inform those involved about the purposes and legal bases of the collection.
What fundamental principles of the rule of law must be observed in collection procedures?
The principles of the rule of law are mandatory for the collection procedure, particularly the principle of legal certainty, the prohibition of excess, and the right to effective legal protection. Statutory provisions must be clear and understandable so that they are traceable and predictable for those affected. Furthermore, a collection procedure may not result in a disproportionate burden. In addition, those affected have the right to seek remedies such as objections or appeals against the order or conduct of a collection procedure.
What is the importance of data protection in the collection procedure?
Data protection plays a central role in every collection procedure. Any collection, processing, or use of personal data is generally only permissible if it is based on a legal basis or effective consent from the data subject. According to the GDPR, a record of processing activities must also be kept, and those affected must be fully informed about the processing of their data. Technical and organizational measures must be taken to ensure data security and unauthorized third parties must be denied access to the data. Violations of these rules can lead to significant fines.
What rights do affected persons have in the case of improper or unlawful data collection?
If unlawful or incorrect data is collected as part of a collection procedure, those affected have various legal remedies at their disposal. In particular, they can request the responsible authority to correct or delete the data in question. If these claims are not remedied, it is possible to lodge a complaint with the competent data protection supervisory authority or – depending on the case – to pursue administrative or civil legal remedies. Claims for damages can also be asserted in accordance with Art. 82 GDPR if material or non-material damage has been caused by the improper data collection.
In which cases is a formal collection procedure required by law?
A formal collection procedure is always required when sensitive or specially protected data is collected, or when the data collection constitutes a significant interference with fundamental rights. Typical examples are tax and social procedures, judicial investigations, census or population surveys, as well as certain official approval procedures in which detailed information or evidence is required. The formal requirements and any time limits are always set out in the relevant specialist laws and procedural rules.
When and to what extent does an obligation to provide information exist in the collection procedure?
The obligation to provide information in the collection procedure arises solely from a legal basis. In the absence of an express statutory provision, there is generally no obligation to provide information. If such an obligation exists—for example, in tax law (§ 93 AO) or social security law (§ 60 SGB I)—it generally applies to the extent that the information is necessary for the fulfillment of official duties. The obligation usually covers all relevant facts, documents, and evidence, whereby refusal to testify due to protection against self-incrimination (nemo tenetur principle) is possible in certain cases.
What legal remedies exist against measures in the collection procedure?
Legal protection can be sought at various levels against official measures in the collection procedure. An objection procedure is often provided as an initial remedy, in which the authority reviews its decision. If the objection is unsuccessful, recourse to the courts is generally available, with the respective specialized courts (administrative, tax, social courts) having jurisdiction. In addition, a complaint may be made to data protection supervisory authorities in data protection law. In judicial proceedings, measures may also be temporarily suspended or modified by way of interim relief if significant legal disadvantages would otherwise result.
