Definition and Significance of Suspensive Effect
Die suspensive effect is a central concept in administrative law that has far-reaching implications for the enforceability of administrative acts and the legal protection of those affected. It refers to the legal consequence that, by lodging a legal remedy – for example, an objection or a lawsuit – the enforcement of a burdensome administrative act is initially suspended. In other words, the authority is generally not permitted to execute the contested measure until a decision has been made regarding the legal remedy.
The suspensive effect serves to protect those affected from provisional disadvantages caused by state action, while also ensuring effective legal protection in accordance with the Basic Law.
Fundamentals and Legal Sources
Administrative Procedure Act (VwVfG) and Code of Administrative Court Procedure (VwGO)
The principle of suspensive effect in German law is primarily governed by the Administrative Procedure Act (VwVfG) and the Code of Administrative Court Procedure (VwGO) as follows:
- Section 80 (1) VwGO: Regulates that objections and actions for annulment generally have suspensive effect.
- Section 80 (2) VwGO: Contains the relevant exceptions, such as for urgent measures, lawfully ordered immediate enforcement, or certain administrative acts (for example, in tax law).
- Section 80 (5) VwGO: Creates the possibility to apply for judicial interim relief concerning the granting or refusal of the suspensive effect.
At the same time, there are special provisions for certain procedures, for example in tax law (§ 361 AO), immigration law (§ 84 AufenthG), or state police law.
Requirements and Commencement of the Suspensive Effect
Filing of a Legal Remedy
The suspensive effect generally arises with the timely and proper filing of a legal remedy. The following are primarily affected:
- Objection (§ 68 et seq. VwGO)
- Action for Annulment (§ 42 (1) alt. 1 VwGO)
Persons concerned must observe the applicable deadlines and jurisdiction in order to trigger the suspensive effect.
Restrictions and Exclusion
Statutory Exclusion
The suspensive effect is statutorily excluded for certain administrative acts. Typical cases include:
- Measures of hazard prevention or public order (e.g., police orders)
- Tax assessments
- Decisions in social law
Order of immediate enforcement
According to § 80 (2) no. 4 VwGO the authority may, in individual cases, order immediate enforcement (immediate execution). The prerequisites for this are:
- Urgent public interest
- Special ground for enforcement, which goes beyond the ordinary interest in the issuance of the administrative act
- Obligation to provide reasons according to § 80 (3) VwGO
Tasks in Interim Legal Protection
Those affected can file a so-called application pursuant to § 80 (5) VwGO with the competent administrative court to obtain the restoration or ordering of the suspensive effect. In doing so, the court reviews both the public interest in immediate enforcement and the applicant’s interest in suspension.
Effects and Legal Consequences of the Suspensive Effect
Suspension of Enforcement
As long as the suspensive effect applies, the contested administrative act is generally not enforceable. This means, in particular:
- No enforcement of state action to the detriment of the person concerned
- Preliminary legal protection until a decision in the main proceedings is reached
The substantive validity of the administrative act remains unaffected by this – it continues to exist, but may not be enforced by compulsion.
Duration and End of the Suspensive Effect
The suspensive effect ends when
- The legal remedy is finally rejected
- The administrative act becomes final and binding
- The court explicitly lifts the suspensive effect
A withdrawal of the objection or lawsuit by the person concerned also ends the suspensive effect.
Areas of Application and Special Features
Tax Law
In tax law, a different provision applies: According to § 361 AO an objection to a tax assessment generally does not have suspensive effect unless otherwise provided by law. Exceptions are regulated in § 361 (2) AO.
Social Law
In social law, according to § 86a SGG (Social Court Act), the suspensive effect is also regulated, but with numerous exceptions, for instance in the ordering of benefits.
Immigration Law
According to § 84 AufenthG the suspensive effect in the field of immigration law is subject to strict requirements, particularly for measures terminating residence.
Distinction from Similar Legal Institutions
The suspensive effect must be distinguished from similar legal institutions. Particularly noteworthy are:
- Suspension of enforcement (in tax law), where the authority or the court suspends the immediate enforceability of a tax assessment
- Preliminary legal protection by interim order (§ 123 VwGO), if no suspensive effect is provided
- Suspensive effect in legal remedies in civil proceedings, which is comparable in certain ways but structured differently in terms of legal technique
Significance in the Constitutional Context
The suspensive effect is closely connected to the mandate of legal protection enshrined in Art. 19 (4) Basic Law (GG). The Federal Constitutional Court regularly emphasizes the necessity of effective legal protection against burdensome state measures. The suspensive effect is therefore a fundamental instrument for ensuring protection of legitimate expectations and for maintaining legal peace.
Literature and Further References
- Code of Administrative Court Procedure (VwGO)
- Administrative Procedure Act (VwVfG)
- Basic Law (GG)
- Tax Code (AO)
- Social Court Act (SGG)
- Residence Act (AufenthG)
Summary
Die suspensive effect is a central institution of German administrative legal protection. It ensures that administrative acts may generally not be enforced during the pendency of legal remedies and protects the affected individual from unlawful interventions. The precise design, exceptions, and judicial remedies are regulated in numerous special statutes. Understanding this is essential for procedural law and the effective protection of individual rights against administrative acts.
Frequently Asked Questions
What is the significance of the suspensive effect in administrative court proceedings?
In administrative court proceedings, the suspensive effect plays a key role. It ensures that an administrative act against which a legal remedy – in particular, an objection or an action for annulment – has been lodged, may not be enforced or implemented for the time being. The objective is to safeguard the rights of the affected person until a final judicial decision is made and to avoid the need for any complicated reversal in the event of a successful claim. The suspensive effect is meant to prevent the creation of factual circumstances through immediate enforcement of the contested administrative act that are irreversible or difficult to reverse. However, it is legally regulated that for certain administrative acts, the suspensive effect is excluded by law, particularly in measures concerning public safety, tax law, or certain immigration law decisions. In such cases, the suspensive effect must be explicitly applied for at the administrative court.
For which legal remedies does the suspensive effect apply?
The suspensive effect principally applies to objections and actions for annulment—legal remedies aimed at the annulment or modification of a burdensome administrative act. It is regulated in §§ 80 and 80a of the Code of Administrative Court Procedure (VwGO). Filing an objection or an action usually results in the enforcement of the contested administrative act being initially suspended. The suspensive effect applies by operation of law unless it is excluded by special statutory provisions or the authority has explicitly ordered the immediate enforceability of the administrative act by means of so-called immediate execution. Other legal remedies, such as actions for mandamus or for performance, generally do not have suspensive effect, as such types of claims do not seek to suspend an existing administrative act.
In which cases is the suspensive effect excluded by law?
The suspensive effect is excluded by law in several important areas of law. The most common grounds for exclusion include administrative acts in the field of public security and public order law, such as in cases of measures by police enforcement, immigration, and tax authorities (§ 80 (2) sentence 1 nos. 1-4 VwGO). For example, legal remedies against measures related to deportations, the ordering of immediate enforceability of a commercial activity ban, or enforcement of taxes generally do not have suspensive effect. The statutory grounds for exclusion are intended to ensure the effectiveness and enforceability of certain administrative decisions, especially when there is a significant threat to public safety and order.
How can the suspensive effect be restored in cases of exclusion?
If the suspensive effect is excluded by law or has been explicitly withdrawn by the authority, an application for restoration of the suspensive effect can be filed with the competent administrative court pursuant to § 80 (5) VwGO. The court then weighs whether the applicant’s interest in suspension outweighs the public interest in enforcement of the administrative act. In this assessment, the prospects of success in the main proceedings, the severity of the applicant’s impairment, and the protection of public interests in need of safeguarding are particularly considered. In urgent cases, the court can also issue an interim order. The court’s decision is binding on the authority, but it can be challenged before the Higher Administrative Court by way of complaint.
What effect does the order of immediate enforcement have on the suspensive effect?
If the authority explicitly orders the immediate enforcement of an administrative act pursuant to § 80 (2) sentence 1 no. 4 VwGO, the suspensive effect of any legal remedy ceases to apply. The order of immediate enforcement requires that the special public interest in the immediate implementation of the administrative act be presented in writing and in a comprehensible manner. A mere reference to general enforcement interests is not sufficient; specific reasons related to the individual case must be given. The affected party may also apply to the administrative court to have the suspensive effect restored against the authority’s order. In this case, too, the court reviews whether enforcement is justified in the particular case or whether the affected party would suffer unreasonable disadvantages from immediate implementation.
Can third parties benefit from or be affected by the suspensive effect?
Third parties who are affected in their own subjective rights by an administrative act (for example, neighbors in the case of a building permit) may, within the context of third-party objections or third-party actions for annulment, possibly also benefit from the suspensive effect. However, the significance of the suspensive effect for third parties is limited to those cases in which the administrative act includes a provision directed at a third party and third parties are legally entitled to lodge a legal remedy. The statutory exclusions and the options for judicial restoration and ordering of the suspensive effect apply correspondingly in such cases. Furthermore, a distinction must be made as to whether the original administrative act or a specific ancillary provision concerning a third party is contested, as this affects the scope of the suspensive effect.
