Concept and significance of the suspension of (immediate) execution
Die Suspension of (immediate) execution is a central concept in German administrative law and applies in judicial legal protection against administrative acts. It refers to the temporary prohibition on enforcing an administrative act, usually in cases where, due to an order of immediate enforceability pursuant to Section 80 (2) sentence 1 no. 4 of the Administrative Court Procedure Act (VwGO), it can be enforced immediately, even though it has not yet become legally binding.
General legal situation in administrative law
In principle, according to Section 80 (1) VwGO, an objection or an action for annulment against a burdensome administrative act has a suspensive effect, thereby preventing the execution of the administrative act. In certain cases, especially when the authority orders immediate execution, this suspensive effect ceases pursuant to Section 80 (2) sentence 1 no. 4 VwGO. However, the affected person can apply to the court for Suspension of (immediate) execution in order to restore the original situation.
Requirements and procedure of the suspension of (immediate) execution
Application and jurisdiction
The application for suspension of (immediate) execution is to be submitted to the competent administrative court. It can be filed either in the proceedings against the order of immediate execution in the opposition procedure (Section 80 (5) sentence 1 VwGO) or within the framework of an annulment action. The competent body is usually the chamber or the competent court handling the main proceedings.
Form and deadlines
There are no specific formal requirements; the application can be filed in writing or for the record at the court office. The law expressly does not prescribe a deadline for submitting the application. For practical reasons, however, it is advisable to proceed promptly after notification of the order, since enforceability could otherwise already cause disadvantages.
Court’s decision criteria
The court examines, as part of a balancing of interests decision pursuant to Section 80 (5) VwGO, whether the public interest in the immediate execution of the administrative act outweighs the private interest of the affected person in restoring the suspensive effect.
In particular, the following aspects are taken into account:
- Prospects of the main proceedings: The likelihood of success of the objection or lawsuit against the administrative act.
- Weight of interests: Weighing the public interest in enforcement against the individual interest in interim legal protection.
- Consequences assessment: Determining the respective consequences in the event of suspension or non-suspension of execution.
The decision is also influenced by whether the justification for the order of immediate execution meets the statutory requirements. The order must be substantiated; if a proper justification is lacking, suspension may already be granted for this reason.
Legal bases and application cases
Statutory bases
All provisions governing the suspension of (immediate) execution are found in the Fourth Section of the Administrative Court Procedure Act (VwGO), particularly in Sections 80 et seq. VwGO. In tax law, special provisions apply under Section 361 of the Fiscal Code (AO) and in social law under Section 86a of the Social Court Act (SGG).
Typical areas of application
The suspension of immediate execution plays a significant role in administrative acts with considerable impact, for example in the following areas:
- Building law: Order of immediate enforceability of a demolition order
- Trade law: Revocation of commercial permits
- Assembly law: Dissolution or prohibition of assemblies
- Residence law: Deportation orders
Equivalent regulations and separate legal remedies exist in tax law and social administrative proceedings, respectively.
Legal consequences of the suspension of (immediate) execution
Effect of the suspension order
If the suspensive effect is restored or ordered, the administrative act may not be executed until a decision in the main proceedings. Previous enforcement measures must be reversed as far as possible. If the application is rejected, the administrative act remains enforceable.
Binding effect and legal remedies
The decision arises from provisional legal protection proceedings and does not constitute a final determination of the main proceedings. It deals solely with the issue of enforceability. Legal remedies against the decision of the administrative court, such as the complaint pursuant to Section 146 VwGO, are available to the applicant within specific deadlines.
Special features in other types of procedure
Suspension of execution in tax law
In tax law, the provisions of the Fiscal Code (Section 361 AO) apply. The application must be submitted to the tax authority or the fiscal court. The criteria correspond to those of administrative court proceedings, but there are systematic and procedural particularities.
Social court procedure
In social law, too, there is the suspension of execution, regulated in Section 86a SGG. The basic principles correspond to those of general administrative law, but the requirements for ordering immediate execution in social administrative proceedings are interpreted more strictly.
Summary and practical significance
The suspension of (immediate) execution is a central instrument of administrative legal protection and serves to protect the affected individual from irreparable consequences of an administrative act that could otherwise be enforced despite ongoing legal remedies. It enables swift judicial review and a balanced decision to prevent serious legal infringements or undue hardship. Due to its importance, it is applied in a multitude of legal areas and is of fundamental practical relevance in urgent legal protection proceedings.
Frequently asked questions
Who can file an application for suspension of (immediate) execution?
An application for suspension of (immediate) execution can generally be filed by the addressee of a burdensome administrative act against which the order of immediate enforceability pursuant to Section 80 (2) sentence 1 no. 4 VwGO has been issued. This is usually done within the framework of an objection or a lawsuit, with the application pursuant to Section 80 (5) VwGO being filed either with the issuing authority or directly with the competent administrative court. Third parties who are affected in their own rights by the execution of an administrative act (for example, often neighbors in building law matters) are generally also entitled to file such an application. The prerequisite is always that a specific grievance caused by immediate execution can be demonstrated. The applicant does not have to be represented by a lawyer, but since the reasoning is often legally complex, legal consultation is recommended.
What are the requirements for suspending (immediate) execution?
For the suspension of immediate execution, the administrative court examines under Section 80 (5) VwGO a comprehensive balancing of interests between the public interest in immediate enforcement of the administrative act and the applicant’s individual interest in the suspensive effect of his objection or lawsuit. The central criteria for review are the prospects of success in the main proceedings—if the challenged administrative act is obviously unlawful, the application must generally be granted. Even in the case of an unclear legal situation, the balancing of the parties’ interests is carried out on a case-by-case basis. Particular importance is given to the fundamental rights of the affected person, the possibility of significant, irreversible disadvantages resulting from enforcement, and the weight of the public interest in immediate execution.
What deadlines must be observed when applying for suspension?
As a rule, the law does not specify a strict deadline for submitting an application pursuant to Section 80 (5) VwGO. The application can be filed as long as immediate execution is imminent or ongoing. However, it should be noted that measures already enforced, such as a completed deportation or forced removal of structures, generally cannot be reversed, meaning the application for suspension becomes moot in practice. To ensure effective legal protection, the application should therefore be filed as early as possible. In urgent cases, the court can also rule particularly quickly in provisional legal protection, if necessary through an interim order (Section 80 (5) sentence 3 VwGO).
What are the legal effects of suspension of execution?
If the application for suspension of (immediate) execution is granted, this generally has the effect of the “suspensive effect” of the legal remedy (objection or lawsuit). This means that the administrative act may no longer be enforced until a final decision in the main proceedings. Enforcement actions already initiated must be ceased and reversed as far as practically possible. The authority is bound by this court decision. A successful application under Section 80 (5) VwGO, however, does not oblige the administration to decide the main issue—the main proceedings remain pending regardless.
What is the role of the public interest in the court’s decision?
The public interest plays a central role in the balancing of interests under Section 80 (5) VwGO. The authority must state why, in the specific case, excluding the suspensive effect and ordering immediate enforcement is necessary. The court then examines whether significant public welfare interests exist (for example, averting danger, significant economic interests, protecting public safety) that justify the exclusion of the suspensive effect. The public interest must always be weighed against the individual’s interest in legal protection from the administrative act.
What happens if the court does not grant the application?
If the administrative court rejects the application for suspension of (immediate) execution, the immediate enforceability of the administrative act remains in effect. In this case, the applicant may file an appeal with the Higher Administrative Court or Administrative Court of Appeal, provided this is permitted under state law. A new substantive review and a full balancing of interests then take place before the next higher instance. Regardless, the main proceedings remain pending—the outcome of the urgent proceedings is not binding in the main case.
Can conditions be attached to the suspension of execution?
The court has the option, pursuant to Section 80 (5) sentence 4 VwGO, to link the suspension of execution to conditions or ancillary provisions. This may be done in particular to minimize interference with public interests, such as by ordering safeguarding measures, requirements to maintain a specific state, or the provision of security deposits. Such ancillary provisions serve to create a reasonable balance between the conflicting interests and to secure the legal positions of both sides until the main proceedings.
