Mahendra P.

Singh

German
Administrative Law
In Common Law Perspective

Springer-Verlag Berlin Heidelberg GmbH

M. P. Singh, Professor of Law
Faculty of Law, University of Delhi
Delhi 110007, India

This publication is supported by the

Alexander von Humboldt-Stiftung, Bonn

ISBN 978-3-662-02459-1

Library of Congress Cataloging in Publication Data

Singh. Mahendra Pal, 1940-
German administrative law in common law perspective.
Bibliography: p.
Includes index.
l.Administrative law-Germany (West) I. Title.
KK5580.S561985 342.43'06 85-14865
ISBN 978-3-662-02459-1 ISBN 978-3-662-02457-7 (eBook)
DOI 10.1007/978-3-662-02457-7
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by Springer-Verlag Berlin Heidelberg 1985
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To Bhabhi
Foreword

It is with the greatest pleasure that I add a few introductory remarks to the book of
Dr. Mahendra Pal Singh on German administrative law.
Between 1981 and 1982 Dr. Singh spent nearly two years in Heidelberg, doing re-
search partly at the South Asia Institute of the Ruprecht Karl University and partly
at the Max Planck Institute for Comparative Public Law and International Law.
During his stay in the Federal Republic of Germany, Dr. Singh studied the general
principles of German administrative law in a careful and admirable manner, and he
has now completed the present book which is based on his studies in Heidelberg.
For several reasons Dr. Singh is especially qualified to write this book: His famil-
iarity with the administrative law of his home country has enabled him to look upon
the German law with considerable objectivity; his knowledge of the German lan-
guage gave him access to the vast amount of German literature and court decisions;
and Dr. Singh was able to penetrate this material with a searching and scholarly
spirit. The final product seems to be the first comprehensive treatise in English on
German administrative law.
German administrative law has many peculiarities which are unknown or at least
unusual in common law countries. Influenced at the turn of the century by French
administrative law, the general rules and principles of administrative law have been
developed mainly in learned writings and in court decisions. Mter the second world
war, the German system of administrative courts developed in a most comprehen-
sive manner. All decisions of administrative authorities affecting individual rights
can be challenged in courts; this is guaranteed by the Federal Constitution, Art. 19
(4) of the German Basic Law. Three levels of administrative courts have been insti-
tuted and they are handling thousands of cases every year. Important branches of
administrative law, developed over decades without formal legislation, have in re-
cent time progressively been codified. The most important of these laws is the code
on administrative procedures (Verwaltungsverfahrensgesetz) enacted in 1976.
Dr. Singh's work affords an excellent description of German administrative law.
It is hoped that it will be studied by scholars, students and practioners in many
English speaking countries.

Rudolf Bernhardt
Director, Max Planck Institute for
Comparative Public Law and Inter-
national Law
Professor at the University of Heidelberg
Judge at the European Court
of Human Rights
Introduction

If the life of the law, in the words of Oliver Wendell Holmes, has not been logic but
experience1, the complementary truth may be asserted with equal justification: it is
experience itself which in turn seems to show the remarkable power of logical ten-
dencies, of imperatives of consistency and rational response, operating in the evolu-
tion of the law and likely in the long run to produce, even in different legal cultures,
comparable solutions to like problems from certain shared major premises. This
may be so in spite of the most colourful dissimilarities of historical and technical
background - law's 'form and machinery', as Holmes would call it in contrast to its
'substance'. That there should be so much eventual convergence in substance some-
times may come as a surprise to the lawyer trained in a particular form and machin-
ery of the law. But there is an inherent logic in human institutions which tends to
make itself felt against the limitations of particular legal traditions.
No better illustration of this may perhaps be found than the development of the
English administrative law as compared with its counterparts on the European con-
tinent, and the more recent rapprochement between the two systems. Hardly could
there have been a greater antagonism in general outlook as well as in technical ap-
proach than it appeared in the initial position of French administrative justice
(which set the pattern for most Civil Law countries) and, in contrast, the Common
Law: on one side, the French dislike of courts' interference in public administra-
tion, re-inforced by the Revolution's apprehension of conservative obstruction by
courts protecting vested interests; in consequence, development of legal remedies
only in a framework of inner-administrative, 'quasi-judicial' control primarily in the
public interest. On the other side: the undisputed strong position of ordinary courts
in England since the Glorious Revolution, and their armoury of prerogative writs;
likewise, the common lawyer's distrust against anything reminiscent of the old Pre-
rogative Courts and notably the Star Chamber. Whatever the true import of this lat-
ter attitude it had a least been so eloquently expressed by A. V. Dicey in his famous
critique of French droit administratij2, and had been pushed into the foreground
with such dogmatic persuasiveness as to obscure the issue of administrative law in
England for some time to come. Dicey had been led to virtually equate the Rule of
Law with the all-comprehensive jurisdiction of ordinary courts and the absence of
any specific body of administrative law. On the opposite side the French had ratio-
nalized their practical option with a hardly less unfortunate version of the Separa-
tion of Powers doctrine.
The relevance of this fundamental, and to some extent imaginary, opposition in

1 Holmes O. w.: The Common Law, 1 (quoted from the 43d printing, 1949).
2 Dicey A. Y.: Introduction to the Study o/the Lawo/the Constitution, 183 et seqq. (10th ed., 1959);
for repeated reference to the Star Chamber in this context see at 371 et seqq.
x Introduction

outlook has by now become a matter of the past; so have the ideological overtones
of the debate. Today it is commonplace to acknowledge that French law has built
up, from within the administration, a veritable system of courts exercising effective
and independent control. English law, on the other hand, has moved to a fully con-
scious recognition of the special powers in fact bestowed on public officials and the
necessity, in consequence, of special public law remedies for the citizens' adequate
protection.3 The technicalities of the law, no doubt, still reflect the differences of
historical lineage and still shape, occasionally even tend to obscure, the perception
of common problems. Yet after inordinate delay, the substantial truth has by now
emerged on both sides, namely: that one cannot have a modern public administra-
tion and still preserve the rule of law without evolving administrative law in the full
sense including judicial control by whatever name it may be called.
Gradually realizing this truth as a dictate of consistency the two great systems of
law have become more realistically aware of each other and have become capable
of a dialogue. This dialogue has, in fact, already begun and moved from academic
enclaves to practical encounter, e. g., in the European Community institutions or the
European Human Rights Commission and Court. An instance reflecting the
changed relationship, and the convergence referred to, may be found in a recent dic-
tum by Lord Diplock in a decision by the House of Lords: 4 after summarizing the
three established grounds for judicial review of administrative action in England he
goes on to contemplate, as a conceivable addition to the list, "the possible adoption
in the future of the principle of 'proportionality' which is recognized in the adminis-
trative law of several of our fellow members of the European Economic Communi-
ty."5
In an era of more practical exchange the sweep of comparative discussion
broadens and besides the traditional protagonists new participants may enter the
arena. A study of German administrative law coming from an Indian jurist at this
juncture is a welcome addition on more than one account. Quite naturally countries
hitherto under the undisputed sway of one or the other of the European models
would usefully partake in the common stocktaking, since in extra-European cul-
tures the adequacy oflegal solutions transplanted from a foreign milieu would have
to be tested against an entirely different set of social circumstances. A real contribu-
tion, therefore, may be expected from that side in the effort of re-assessing the true
relevance of time-honoured concepts. And it is in the fitness of things, conversely,
that these countries make use of their new independence to benefit from the broad-
ening vista for their own, original choices. Thus it is a particular attraction of the
book introduced here that it views not merely German law in Common Law per-
spective but at the same time Common Law in Indian perspective. An attentive
reader would not fail to notice how this has enriched the presentation. One particu-
lar instance is to be mentioned later on.

3 In ch. 8 at 117 below attention is rightly drawn to the distinction between private law remedies and
public law remedies (so-called extra-ordinary remedies) in common law. It is significant that Di-
cey in his criticism of the droit administratifcompletely ignored the writ ofcertiorari and all it im-
plied in contemporary English administrative law.
4 Council ofCivil Service Unions v. Minister for the Civil Service, [1985) A. C. 374 seqq., 410.
5 See the discussion of that principle in ch.6 p. 88 below.
Introduction. XI

On the other hand, in the context of pragmatical objectives a certain shift of in-
terest may take place from the consideration of extreme positions towards a wider
range of intermediate solutions. As long as the issue appeared to be a categorical
opposition of principles the attention of the common law jurist, if at all diverted to
the strange formations of Continental European laws, almost exclusively centered
on the French droit administratif. It had the heuristic value of presenting the oppo-
site principle in ideal type, especially if one looked, as Dicey did, to its initial stages
rather than to its developed form. Today a structure like German administrative law
which in its historical growth integrated alternating influences of French and
English legal culture, may present a peculiar interest for comparative study. Being
itself to some extent a product of comparative experience it would seem to testify to
the possibilities of selective learning rather than the stale alternative between full
conversion or wholesale rejection.
The development of German administrative law, too, had commenced with the
unmitigated confrontation of the two conflicting principles. After a phase of justice
administrative on French lines in the early 19th century the National Constituent
Assembly at Frankfurt in 1848 had categorically decreed the end of that practice
and attempted to establish unrestricted control by 'the' courts of law in the ortho-
dox liberal tradition. 6 The lasting solution, nevertheless, which was worked out
from the sixties onwards, was to be a combination of the two approaches: judicial
control by independent courts which, however, remained separate from the ordi-
nary courts and were manned by judges experienced in administrative work. More-
over in a blend of French tradition with ideas derived, significantly, from English
administrative law through v. Gneist's comparative studies, the lower administrative
'courts' were structured rather as a kind of administrative tribunals, with the one
fully independent court at the top mainly exercising powers of revision. Again, the
substantive law applied and developed by these courts owed much to French doc-
trine as analized and adapted by German textbook writers. The latest stage, after
1945, has been the complete separation of all administrative courts from the admin-
istration also, and their establishment as fully independent courts with universal ad-
ministrative jurisdiction, ordinary administrative courts as it were. This final step
could ironically be viewed as a move from actual English patterns (as observed by
Gneist) closer to Dicey's ideals. In any case it represents a genuine answer, under
Continental preconditions, to his problem of formal Rule of Law.
As for the material aspects of Rule of Law the central issue has always been the
degree of effective legal control imposed on the exercise of governmental powers.
In this respect major differences still persist, and they are significantly related to the
legal technicalities in the genesis of judicial control. Thus the use of the writ of cer-
tiorari by English courts has tended to induce certain limitations on substantive re-
view which are absent from Continental law. It first of all involved a classification
of administrative authorities as inferior courts or tribunals in order to make them
amenable to the writ. This in tum implied treating their powers as a kind of jurisdic-
tion and thus according them a power to err even in questions of law. Further it led

6 See p. 10 below for the text of the provision which was formally enacted by the National Assem-
bly in its Law on the Fundamental Rights of the German People of27 December 1848, and subse-
quently became part of the German Draft Constitution of 1849.
XII Introduction

to confining judicial review to cases where the administrator appeared to be under a

specific duty to act 'judicially' - a duty which might be found to be non-existent on
'purely administrative' functions or in determinations involving 'privileges' rather
than 'rights'. Marked inroads have, no doubt, been made into these limitations in
more recent time. Since Ridge v. s. Baldwin7 there seems to appear a clear tendency
to dispense with artificial distinctions of judicial, quasi-judicial and administrative
acts and to extend the scope of review accordingly. Likewise, English courts have
shown an increasing inclination to treat errors in law as errors affecting jurisdiction,
and thereby to make all questions of law reviewable. But these processes have not
advanced uniformly, and it may still be relevant to compare the different approach
of Continental, or for that matter, of German law. Here the very definition of ad-
ministrative acts bears a close resemblance to what is termed judicial or quasi-judi-
cial act in English law. 8 This being the basic form of administrative orders there is,
in other words, no room for a further category of 'purely administrative' acts (in the
English sense) which might be substantially immune to judicial review. Secondly,
classification of a question as one of law would in itself be sufficient to make that
question fully reviewable by the courts. It is considered a logical corollary of the
rule of law in its aspect as legality of state action that there can be no permissible
administrative power or 'jurisdiction' to misapply the law. This is carried to the
point that many questions which under English law would be considered as discre-
tionary in nature are treated simply as questions of correct application of law by the
German courts and are, therefore, fully reviewable. 9
The other, and perhaps most serious, limitation of English review proceedings
in Continental eyes is the reluctance to go into disputed questions of fact. In partic-
ular, the 'no evidence' rule followed by English (and Indian) courts would seem to
considerably widen the scope of administrative discretion. German courts would
treat such factual questions as fully reviewable conditions precedent to a discretion-
ary policy decision. Full inquiry into the factual position had been a natural feature
of inner-administrative review in Germany, and it has been retained when the re-
view boards were transformed into courts of law.
If German law, then, appears to impose a stricter and more thoroughgoing sub-
stantive control on administrative powers, there has been a certain neglect of pro-
cedural safeguards for some time. The concept of natural justice is absent, and the
questions of hearing which have engaged so much attention of the common law
courts, have not figured prominently in German case law. The obvious reason is
that the possibility of an effective scrutiny of the decision on its merits will in many
cases reduce the relevance of procedural safeguards. On the contrary, the German
lawyer will be inclined to ask whether the value of the right to a hearing is not over-
rated so long as the administration remains at liberty, after the hearing, to do what-
ever it pleases. This assessment, of course, must be owned to be superficial. German
law has by now come to realize the necessity of devoting more attention to ques-
tions of procedure. The recent passing of laws on administrative procedure bears
testimony to this change of attitude. Procedural safeguards are important wherever

7 [1964] A.C. 40.

8 See the discussion below ch. 3 p.35.
9 See the discussion of Indefinite Legal Concepts below ch. 6, part C, p.96 et seqq.
Introduction XIII

substantive control does not work - for instance, when it would come too late; this
has notably been recognized in the area of planning, where procedural require-
ments of timely hearing have been introduced at an early stage. Similarly require-
ments of hearing may be indispensable in cases of irreducible discretion of the ad-
ministrative authority. In this context it has to be noted that there is a growing ten-
dency, though with marked reluctance on the part of the courts, to recognize discre-
tionary elements even in the application of indefinite legal concepts, to accord a
'margin of appreciation' to the administrative authority in certain cases. This is rem-
iniscent of the English concept of 'jurisdiction' and, again, would testify to the
recurrence of structurally related problems in different legal orders. It would also
entail, as a balancing element, greater emphasis on correct and fair procedure. Gen-
erally requirements of procedure are now perceived more clearly in this function as
complementary safeguards corresponding to the greater or lesser effectiveness of
substantive control.
One can see the two systems moving in opposite though convergent directions:
one setting out from substantive control and gradually introducing more procedural
safeguards, in the structure of administrative courts as well as in administrative
procedure; the other starting from strict formal, if comparatively loose substantive
requirements and gradually intensifying its control in matters of substantive law.
This leads to the questions of true rationales, leaving aside the historical contingen-
cies of origin: where all the emphasis is put on making already the first decision of
the administrative authority a just and fair one, the utmost scrupulosity will have to
be bestowed on procedural safeguards; judicial control then may be restricted to a
final review of legality by one top level court. This is the approach developed by the
English, but also on the Continent, e. g., by the Austrian system. Where such confi-
dence in the general legality and fairness of administrative action is not considered
a sufficient guarantee, where the need, for instance, is strongly felt to foreclose ave-
nues of corruption (including party politicsl~ likely to be opened by broad discre-
tionary powers, a case may be made for more strict and substantive control on
French and German lines.
A somewhat surprising development may finally be noted. Whereas German
law following the French example initially proceeded from a strong emphasis on
the public function oflegality control within the administration it has now moved to
a position stressing the protection of individual rights through court proceedings.
This has led to a relatively conservative attitude of the courts in matters of standing
which can hardly be considered as commensurate with the exigencies of modern so-
ciety. Marking off legally protected from other affected interests is becoming an in-
creasingly difficult and arbitrary affair in an age where in many spheres individual
administrative decisions have widespread repercussions on the public. It is interest-
ing to observe that the common law has shown more flexibility in this respect. This
may be due to the public law origin of prerogative orders or writs. The most spectac-
ular use of this potential has recently been made by the Indian Supreme Court in its
liberal admission of public interest litigation. tt To take note of such developments

10 This was a consideration weighing heavily with Gneist when he advocated his reform scheme of
administrative courts.
11 See ch. 8 p. 122 below.
XIV Introduction

would not only have paradigmatical value for German administrative courts. It
could also help them to recover a most legitimate aspect of public interest orienta-
tion rooted in their past traditions. For the true province of administrative law has
been the homology of individual and public interest in upholding the rule of law.
If some such reflections as may be provoked by this book have been indicated
here at some length the intention was not to preempt the reader's attention but to in-
vite him to a fascinating study. In putting this down, the present writer takes pride in
having on his part instigated the author to this venture when we first met in the Del-
hi Law Faculty in winter 1978179, and would like to record his admiration for the
way in which he has mastered the difficult task.

Dietrich Conrad

Dr. jur., MeL (Ann Arbor)

South Asia Institute
University of Heidelberg
Prefatory Note

The following pages are the outcome of my nearly two years' stay at Heidelberg as
Alexander von Humboldt research fellow. Submission of a research project of my
choice was a condition precedent for the grant of fellowship. Being a student of ad-
ministrative law I was naturally curious to learn something about German adminis-
trative law. On the basis of very scanty and scattered literature on German adminis-
trative law in English I could, however, submit only a somewhat vague project
covering generally the legal control of government in Germany. Mter the grant of
fellowship and acquisition of some proficiency in the language, when I went
through the original source materials I came across so many fascinating aspects -
much more fascinating than I could imagine - of German administrative law that I
thought a systematic presentation of some of them will make interesting and useful
reading to an English-speaking lawyer. That is the genesis of this work.
This is not a comparative work in any strict sense. Primarily it is a systematic
presentation from the point of view of a common lawyer of those aspects of Ger-
man administrative law which will interest him most. It is only to rejuvenate his in-
terest that at places reference to the common-law position has been made. The ex-
pression 'common law' has been used to denote that system of law which is tradi-
tionally distinguished from the civil law system. Being aware of the fact that a clear
cut distinction between the common and civil law systems may not be acceptable to-
day and that even among the so-called common-law countries administrative law
widely differs in its details, I have confined myself to British and Indian positions -
assuming that the latter essentially follows the former - and only rarely have re-
ferred to the position in the United States or in any other country.
The title may create an impression that this work either deals with the law of un-
divided Germany or of both parts of it. In fact it deals only with the law as it oper-
ates in what is now the Federal Republic of Germany or West Germany. The crea-
tion of the Federal Republic of Germany, however, is recent while most of its laws
and legal institutions can be traced back centuries. To say that they are peculiarly
and exclusively West German may not be true. Therefore unless it was absolutely
necessary I have avoided the prefix 'West' with Germany or German.
I hope these explanations make the task of the reader simpler.

Faculty of Law, University of Delhi

M. P. Singh
August 1985
Acknowledgements

Many individuals and institutions have helped me in the planning and execution of
this work. It is not possible for me either to mention them all or to record their con-
tribution adequately. I therefore express my sincere gratitude to every one of them
for all they have done for this work. The contribution of some, however, is so great
that I cannot help but disclose their identity, even though the limitations of lan-
guage and space prevent me from expressing even a fraction of what this work owes
to them.
The work could never have been conceived but for a fellowship from the Alex-
ander von Humboldt Foundation, first to learn the German language at Freiburg
and then to conduct research at Heidelberg. The Foundation was both generous
and prompt in extending help - whether in prolonging the fellowship, in making
grants for books, travel, and the publication of this work, or in other ways. However,
the Foundation would have remained unknown to me had Dr. D. Conrad of the
South Asia Institute, Heidelberg, not told me of it. I am reminded of the couplet of
the saint-poet Kabir where he tells that if both God and Guru appear before him he
would give precedence to the latter because it is the latter who has revealed to him
the existence of the former. However much I try, the contribution of Dr. Conrad
cannot be expressed in words: his interest, help, and encouragement from his initial
suggestion to undertake this study through to its finalization make the work as
much his as mine.
Equally significant is the contribution of Professor Dr. R. Bernhardt, Director,
Max Planck Institute for Comparative Public Law and International Law, Heidel-
berg, who was my host professor. Professor Bernhardt was always extremely gen-
erous and kind. He provided me evtl,ry possible research facility at the Institute,
guided my work, went through the draft, made valuable suggestions and comments,
and helped me with many contacts. I wish to express my special thanks to Professor
Bernhardt for honouring my work by kindly writing the Foreword.
Professor Dr. E. Schmidt-Assmann of the Faculty of Law, University of Heidel-
berg, was exceptionally kind and encouraging. He suggested the most appropriate
readings, went through the draft, gave valuable suggestions, and to keep me in-
formed about the latest developments in German administrative law after my return
to India he made the NVwZ regularly available to me through the publisher -
C.H.Beck-Verlag. Professor Dr. J.Abr.Frowein, Director, Max Planck Institute,
Heidelberg, always welcomed any discussion on the subject and after going through
the draft suggested, inter alia, the inclusion of discussion on indefinite legal con-
cepts. Professor J. F. Garner (Emeritus), University of Nottingham afforded me the
opportunity of discussing and clarifying some of the difficult and unclear aspects of
English law.
Judge Dr. J. Bornkamm, his lawyer wife Nikola, and little son Paul provided me
XVIII Acknowledgements

the much-needed family atmosphere at Freiburg and introduced me to some promi-

nent lawyers, judges, and academicians including Privatdozent and judge
Dr. H. Goerlich with whom I could discuss the basic concepts for hours and who,
apart from doing me many other favours, read the draft and commented on it exten-
sively. Judges Dr. A.Jannasch and Dr. B.Schlueter gave me access respectively to
the administrative court, Freiburg and to the higher administrative court, Mann-
heim.
Dr. J. Schwietzke, Director ofthe Library, Max Planck Institute, and all his col-
leagues gave me every possible help in tracing and making available any required
book or document.
The University of Delhi was generous in granting me leave. Professor P. K. Tri-
pathi put his office at my disposal when I urgently needed a place to sit and work.
Professor U. Baxi read the draft and made many suggestions, corrections, and im-
provements. Professor K. Ponnuswami read and corrected some parts of the draft.
P. P. Singh and I. S. Ishar read and corrected the final draft and made some useful
suggestions.
Bhabhi, to whom I dedicate this work, has always provided willing cooperation
and support and makes any sacrifice to enable me to pursue my goals. Sandhya,
Shailendra and Swati have always cooperated by giving priority to my work over
their even most reasonable and just demands on the time that should have been
theirs.
Finally, I express my thanks to the Springer-Verlag for undertaking the publica-
tion of this work and for executing it so well.

August 1985 M. P. Singh

Contents

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XXIII

Part I. Introductory

Chapter 1. Nature, Scope, and Growth of German Administrative Law 1

A. Nature and Scope . . . . . . . . .. 1
B. Salient Features . . . . . . . . . . . 3
1. Separate Administrative Courts . . . . . . . . . . . 3
2. Public and Private Law Dichotomy . . . . . . . . 3
3. The Rule of Law (Rechtsstaat) . . . . . . . . . . . . 5
4. Separation of Powers . . . . . . . . . . . . . . . . . 6
5. Social (Welfare) State (Sozialstaat) .. 7
C. Growth: Historical Developments . 8
D. Administrative Organization . . . . 12
1. Federal Administration. . . . . . . . 12
2. State (Land) Administration 13
3. Municipal Administration . . 14
References . . . . . . . . . . . . . . 16

Part II. Powers and Functions of Administrative Authorities

Chapter 2. Legislative Powers: Delegated Legislation . . . . . . . . . . . . .. 19

A. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19
B. Executive Legislation: Ordinances (Rechtsverordnungen). . . . . . . . . .. 20
1. Constitutional Limitations . . . . .... 20
2. Procedural Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3. Judicial Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
4. Grounds of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . 25
5. Sub-delegation of Ordinance-Making Power . . . . . . . . . 27
C. Autonomous Legislation: Byelaws (Satzungen) .. 27
1. Constitutional Limitations . . . . . . . . . . . . 28
XX Contents

2. Procedural Requirements 28
3. Judicial Control . . 28
D. Concluding Remarks . . . . 29
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30

Chapter 3. Administrative Powers: Administrative Act 32

1. Concept and Meaning of Administrative Act . . . 32
2. Classification of Administrative Acts . . . . . . . 36
3. Form, Contents, and Procedure of an Administrative Act 37
4. Effect of an Administrative Act .. . . . . 41
5. Defective Administrative Acts . . . . . . . . . . . . 42
.6. Validation of Illegal Administrative Acts . . . . . . 44
7. Withdrawal and Revocation of Administrative Acts 45
8. Reopening of Proceedings 47
References . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Chapter 4. Administrative Powers: Contracts, Private-Law Acts, Real Acts,

and Planning . . . . . . . . . . . . . . . 50
A. Administrative Contracts . . . . . . . 50
1. Nature of Administrative Contracts 50
2. Requirement of Legality . . . . . . 51
3. Void Contracts . . . . . . . . . . . . . . . . . . . . 52
4. Modification and Rescission of Administrative Contracts . 53
5. Enforcement of Contracts . . 54
B. Administrative Private-Law Acts 55
C. Administrative Real Acts 57
D. Plans and Planning .. 58
1. Nature of Planning . . 58
2. Planning Permission . 60
3. Remedy Against Planning Permission. 61
References . . . . . . . . . . . . . . . . . . . . . 62

Part III. Judicial Control of Administrative Powers

Chapter 5. General Principles of Judicial Review. . . . . . . . . . . .. 64

1. The Common Law and German Law Approaches:
An OverView . . . . . . . . . . . . 64
2. Basis of Judicial Review .. . . . . 65
3. Basic Principles of Judicial Review 66
Contents XXI

4. Scope of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . .. 71

5. Grounds of Judicial Control . . . . . . . . . . . . . . . . . . . . . . . .. 72
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 79

Chapter 6. Judicial Review of Discretionary Powers . . . 83

A. Constitutional Limitations ... 84
B. Grounds of Judicial Control .. 85
1. Excess of Discretion . . . . . 86
2. Abuse of Discretion. . . . . . 87
C. Indefinite Legal Concepts. . . 96
References . . . . . . . . . . . . . 98

Part IV. Administrative Courts and Judicial Remedies

Chapter 7. Administrative Courts . . . . . 102

1. GennanJudiciai System . . . .......... 102
2. Administrative Courts .. . . . . . . . . . . . . . . . . . . . . . . . . . . 104
3. Administrative Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . 110
4. Jurisdiction of Administrative Courts . . . .. . . . . . 112
5. Determination of Jurisdiction . . . " ..... 113
6. General Assessment . . 114
References . . . . . . . . . . . . . . . . . . . 115

Chapter 8. Judicial Remedies and Procedure . . . . . . . . . . . . . . . . . . . 117

A. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
1. NatureofJudicialRemedies . . . . . . . . . . . . . . . . . . . . . . . . . 117
2. Kinds of Suits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
3. Conditions for Judicial Relief . . . . . . . . . . . . . . . . 119
B. Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
1. Principles of Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
2. Procedure in the Court of First Instance. . . .. . . . . . . . . . 128
3. Appeal, Revision, and Complaint . . . . . . . . . . . . . . . . . . . . . . 130
4. Interim Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
5. Reopening of the Proceedings . . . . . . . . .... 135
6. Execution of Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
C. Concluding Remarks . . . 136
References . . . . . . . . ... 137
XXII Contents

Part V. State Liability

Chapter 9. Liability of the Public Authorities. .139

A. Scope and Background . . . . . . . . . . . .139
B. General Tort Liability . . . . . . . . . 142
1. Persons Exercising Public Office . .142
2. Breach of Duty . . . . . . 142
3. Duty Towards Third Party .144
4. Exercise of Public Office . 145
5. Fault and Strict Liability . 146
6. Liability for Legislative Changes. 146
7. Limits of Liability . . . . . . . . . . . . ... 147
C. Liability for Quasi-Expropriation and Sacrifice . . . . . . . 148
1. Liability for Quasi-Expropriation (enteignungsgleicher Eingrifl) . . . . . . 148
2. Liability for Sacrifice (Aufopferung) . . . 149
D. Remedy of Nullifying the Consequences . . . . . . . . . . . . . . . . . . . 151
References . . . . 151
Table of Statutes . .154
Table of Cases . . 156

Appendices

Appendix I. The Basic Law. . . . . . . . . . . . . . .... 158

Appendix II. Law of Administrative Procedure 1976 164
Appendix III. Law on Administrative Courts 1960 . . 181
Appendix IV. An Illustrative Judgment . . . . . . . . 184
Bibliographical Note ... 188
Subject Index . . . . . . . 192
Abbreviations

AC Appeal Cases
AIR All India Reporter
AmJCompL American Journal of Comparative Law
BayVBl Bayerische Verwaltungsblatter
BayVGH Bayerischer Verwaltungsgerichtshof
BerRsp Berliner Rechtsprechung
BGH Bundesgerichtshof
BGHZ Entscheidungen des Bundesgerichtshofes in Zivilsachen
BVerfG Bundesverfassungsgericht
BVerwG Bundesverwaltungsgericht
BVerfGE Entscheidungen des Bundesverfassungsgerichts
BVerwGE Entscheidungen des Bundesverfassungsgerichts
BWVBI Baden-Wurttembergisches Verwaltungsblatt
BWVGHE Entscheidungssammlung des Verwaltungsgerichtshofs
Baden-Wurttemberg
BWVGH Baden-Wurttembergischer Verwaltungsgerichtshof
DOV Die Offentliche Verwaltung
DRiG Deutsches Richtergesetz
DVBl Deutsches Verwaltungsblatt
DV Die Verwaltung
ESVGH Entscheidungssammlung des Hess. und des
Baden-Wurttembergischen Verwaltungsgerichtshofes
EuGRZ Europaische Grundrecht Zeitschrift
GG Grundgesetz
GVG Gerichtsverfassungsgesetz
Hess VGH Hessischer Verwaltungsgerichtshof
Int'l & Comp L Q International and Comparative Law Quarterly
J Ind L lost Journal of the Indian Law Institute
JZ Juristenzeitung
L Q Rev Law Quarterly Review
NJW New Juristische Wochenschrift
NVwZ New Zeitschrift fur Verwaltungsrecht
OVG LbgE Entscheidungen der Verwaltungsgerichte fUr das Land
(Liineburg) Schleswig-Holstein in Liineburg
OVG Oberverwaltungsgericht
PrOVG Entscheidungen des PreuBischen Oberverwaltungsgerichts
PrOVGE
QB Queen's Bench
RGZ Entscheidungen des Reichsgerichts in Zivilsachen
XXIV Abbreviations

SC Supreme Court
SCC Supreme Court Cases
S., Ss.
, or Section, Sections
Sect., Sects.
USC United States Code
UChiLRev University of Chicago Law Review
US United States
VGH Verwaltungsgerichtshof
VG Verwaltungsgericht
VR Verwaltungsrecht
VerwRspr Verwaltungsrechtsprechung in Deutschland
VVDStRL Veroffentlichungen der Vereinigung der Deutschen
Staatsrechtslehrer
VwGO Verwaltungsgerichtsordnung
VWR Verwaltungsrecht
VwVfG Verwaltungsverfahrensgesetz
WBVGH Wiirttemberg-Badischer Verwaltungsgerichtshof
WLR Weekly Law Reports
ZPO Zivilprozessordnung
Chapter 1
Nature, Scope, and Growth of German
Administrative Law

A. Nature and Scope

Nearly a century and three quarters ago the German jurist Friedrich Karl von Sa-
vigny propounded the thesis of the uniqueness of each legal system as a manifesta-
tion of the spirit or common consciousness of the people with whom it has naturally
and spontaneously evolved. 1 Any merits or demerits of this thesis apart, the ever in-
creasing social intercourse among different peoples and their interdependence sup-
ported by spectacular scientific advancement since then have brought them so close
to one another that the thesis has simply become untenable inasmuch as no legal
system today can either claim complete uniqueness or maintain total exclusiveness
uninfluenced by the ideas, notions, and practices originated in other legal systems.
As late as 1885 the British constitutional lawyer A. V. Dicey concluded that adminis-
trative law was a peculiar feature of the continental countries unknown to common
law. 2 But soon thereafter, much to his disliking, he had to admit the emergence of
droit administratifin England - the motherland of common law. 3 Today administra-
tive law is admittedly as much an academic discipline and a practical reality in the
common-law world as in the continental. Of course, differences in the two systems
may be traced with respect to the origin and growth of administrative law, instru-
mentalities of its manifestation, and many matters of detail. Such differences cannot
be ruled out, rather do exist, even among the common-law or continental countries
inter se.4 But the central theme that runs through administrative law is the same
everywhere.
That theme is the legal control of governmental powers. 'The primary purpose
of administrative law ... is to keep the powers of the government within their legal
bounds, so as to protect the citizen against their abuse.'5 Quite often power is ac-
companied with duty. 'It is also the concern of administrative law to see that the pu-
blic authorities can be compelled to perform their duties if they make default.'6 In
the ultimate analysis, administrative law aims at fairness in governmental dealings
and good administration commensurate with the community's sense of justice.7
Due to closer relationship between the administration and the courts that adjudi-
cate on administrative matters in the continental system such as exists in France and
also existed in Germany till recently,8 there is better fusion of fairness with good
and efficient administration in that system than in common law where in the ab-
sence of such relationship the primary concern of administrative law has been only
fairness in administrative dealings. 9
Beyond these generalizations it is difficult to encompass administrative law
within a universally agreeable definition. German authors have normally avoided a
definition of administrative law. Even those who have tried have not done it thor-
2 Nature, Scope, and Growth of German Administrative Law

oughly. Thus Wolff and Bachof in their monumental work on administrative law
have simply said that, while in a wider sense administrative law is the body of legal
rules according to which public administration functions, in a narrower sense it is
the body of those legal rules which pertain to the sovereign competence of the sub-
jects of public administration and move on to explain that it is a branch of public
law which differs from private law applicable even to public administration. lOIn an-
other effort at definition Professor Maurer says that administrative law is the body
of the written and unwritten legal rules which in a special way concern the adminis-
tration - the administrative functions, administrative procedure, and the adminis-
trative organization. It is the peculiar law of the administration. He explains that
this does not mean that administrative law is a standard only for the administrative
organs and their activities. It does much more and regulates exactly the relationship
between the administration and the citizen and accordingly establishes rights and
duties for the citizen, but always in relation to administration. ll To Professor
Schmidt-Assmann administrative law is 'more than a mere academic discipline
which loosely connects principles of the modes of administrative action, the law of
organization, and the law of state liability. It is a notion of order (Ordnungsidee)
which has a lasting impact on the administrative culture.'12 Most of the other efforts
at definition, as is apparent from Wolff and Bachof, have moved in the direction of
drawing the distinction between public and private law after a generalized state-
ment that the administrative law consists of legal rules relating to the powers, func-
tions and organization of public administration. To the distinction between the pu-
blic and private law which is a sine qua non for understanding the nature and appli-
cation of German administrative law we will tum after a while.
The German administrative law is divided into general and particular. 13 General
administrative law, with which alone we are concerned in the present work, is the
counterpart of administrative law as known to the common-law countries and con-
sists of rules, principles, concepts, and legal institutions applicable to all spheres of
administrative activity. Particular administrative law is something which truly does
not fall within the scope of administrative law as understood in the common-law
countries. It consists of the substantive law applicable to specific spheres of admin-
istrative activities, such as building law, transport law, police law, welfare law, water
law, education law, etc. 14 A distinctive feature of the general administrative law, un-
like almost all other branches of German law and like its counterpart in common
law, is that it is uncodified and has to be found in the legal writings, judicial deci-
sions and administrative practices except to the extent it has been recently codified
in the federal Law of Administrative Procedure of 1976 and the corresponding laws
of the Laender. 15 Particular administrative law, on the other hand, is more or less
codified and is governed by the statutes relating to each individual activity. To the
extent these statutes do not provide to the contrary the general administrative law
applies to these activities also.
Another distinguishing feature of general administrative law is that it is growing
and changing faster than any other branch of the law. For that reason its contents
and subject-matter have not yet fully stabilised and go on varying with every fresh
treatment. Any standard work on the subject today, however, includes a discussion
on the meaning of public administration and the law relating to it; historical devel-
opment of administrative law and scholarship; distinction between public and pri-
Salient Features 3

vate law; relationship between administrative law and constitutional law; some ba-
sic principles of administrative law in conjunction with constitutional law such as
the rule of law, social state, separation of powers, and the principles of legality, pro-
portionality, equality, etc.; sources of administrative law; administrative organiza-
tion including the law relating to it; administrative functions most of which are
covered under the concept of 'administrative act'; administrative procedure includ-
ing administrative execution or enforcement; and state liability. Judicial review and
judicial remedies which form the core of administrative law in the common-law
countries are conspicuous by their absence in almost all works. Only in one of the
most recent works they find some discussion as one of the various kinds of controls
to which the administration is subject. 16 Similarly, no discussion on delegated legis-
lation or rule-making function of the administration is found in any of these works
except to the extent administrative legislation is relevant as a source of administra-
tive law. This is a rough epitome of what the general administrative law does and
does not include. In the present work we have not adhered to the scheme or con-
tents of the German works. We have rather followed a scheme which is more famil-
iar to a common lawyer.

B. Salient Features

A brief description of some of the main features of the German administrative law
which follows may further help us in comprehending its nature and scope.

1. Separate Administrative Courts

The most distinctive feature of the German administrative law for a common lawyer
is the existence of a separate system of courts to settle administrative disputes. This
resembles French system but, as we will see in detail later, there are material differ-
ences between the two, the most outstanding of which is that while the administra-
tive tribunals in France, including the Conseil d'Etat, are part of the executive
branch of the state, the administrative courts in Germany are fully integrated with
the judiciaryP

2. Public and Private Law Dichotomy

Administrative law is assigned to the category of public law in Germany. It is con-

sidered to be so in common law also, but in common law the distinction between
public and private law exists only at theoretical plane and hardly carries any practi-
cal consequences. In German law the distinction has important practical signifi-
cance. The public law disputes, with some exceptions, are assigned to the jurisdic-
tion of the administrative courts, while the private law disputes are assigned to the
ordinary courts 18 ; the Law of Administrative Procedure applies only to the public
4 Nature, Scope, and Growth of German Administrative Law

law administrative activities of the authorities 19 ; different law applies to the enfor-
cement and execution of public law judgments20 ; and the public and private law ac-
tivities of the administration are treated differently.21 Unfortunately, however, no
universally acceptable criterion for distinguishing public law from private law has
yet been evolved. Numerous theories have been put forward since Roman times,
but no one of them has succeeded in solving the problem. Among these theories
three - the interests theory, the subordination theory, and the subjects theory - are
prominent.
According to the interests theory, which dates back to the Roman jurist Ulpian,
the legal norms which serve the public interest belong to the public law, while those
which serve the private interests belong to private law. This distinction is, however,
rejected as artificial because the private law also serves the public interests in the co-
existence of the society and the administration is also using the private law for pu-
blic ends. Moreover, the constitutions guarantee individual rights and the adminis-
trative law is considered to be the citizen's protection against abuse of the powers of
government. Subordination theory, which goes back to the last century, would as-
sign those norms to public law which create a relationship of superior and subordi-
nate between the state and individual, while the norms which create the relationship
of coordination go to the category of private law. This theory fails to explain clearly
the principle on which the relationship of the superior and subordinate is based and
also overlooks the clear cases of superior-subordinate relationship, such as between
the parents and children in the area of private law and of coordination such as pu-
blic contracts in the area of public law. According to the latest of these theories - the
subjects theory laid down by Wolff and Bachof - the public law norms authorize or
oblige exclusively the holders of sovereign authority, while the private law norms
authorize or oblige anyone. The distinction does not lie either in the difference of
the subject-matter or the effect of a norm, but in the difference of the subjects of al-
location, i. e., those to whom the rights and duties are assigned. 'While the subjects
of allocation of private law are any persons, the public law is the sum of those legal
rules whose subject of allocation is exclusively a holder of sovereign authority.,zz
While this theory holds the day, it is also not free from criticism. The theory, says
Professor Achterbarg, is based on a circuitous argument. Holding of public authori-
ty is a precondition for the existence of public law, but the holder of the public au-
thority is himself created by the norms of public law.23
If none of these theories has succeeded in furnishing universally acceptable cri-
teria, it is less due to the weakness of the theories than to the complexities of the
subject-matter with which they deal. The German jurists have started acknowledg-
ing that the distinction between the public and private law is not to be presumed in
law and that with the vanishing of the separation between the state and the society
such distinction becomes more and more problematic.24In practice most of the
cases involving the question of private and public law distinction are solved without
much problem or reference to any theory. Problem arises only when for a concrete
case either no legal rules, or two opposite rules of public and private law, are appli-
cable. Such cases are decided with reference to the major context in which the case
falls as well as the object and purpose of the administrative activity.
The Rule of Law 5

3. The Rule of Law (Rechtsstaat)

Dicey's concept of the rule of law and his well-known finding on the inconsistency
of this concept with the droit administratif had a decisive restrictive effect on the
growth and modelling of administrative law in common-law countries. To Dicey
this inconsistency was specially apparent in the privileged position of the state offi-
cials in their dealings with the citizens arising from the special set of rules regulating
such dealings and their enforcement through separate tribunals independent from
the jurisdiction of the ordinary courtS. 25 It is now well established that Dicey's con-
clusion was based on a misunderstanding or lack of proper understanding of the
droit administratifin France. A German lawyer finds no inconsistency between the
rule of law and a separate set of rules governing the dealings of an individual with
state officials enforceable in separate tribunals so long as these rules satisfy some
material and formal conditions and the tribunals enforcing them enjoy the same in-
dependence as the ordinary courts. In German terminology a state which combines
the ordinary and administrative jurisdiction is a judicial state (Justizstaat) while a
state that keeps these jursidictions separate with equal independence to their judges
is a state based on the rule oflaw (Rechtsstaat). Dicey's break-down of the concept
of the rule of law into three definite propositions presented a picture of the formal
rule of law and that still continues to be the primary concern of an administrative
lawyer in the common-law world. A German administrative lawyer, on the other
hand, looks both at the material as well as formal aspects of the rule of law.
The material rule of law requires the realization of the just legal order. Above all
it demands that the state power is subjected to definite and unamendable principles
of the constitution and material basic values, and the emphasis of the state activity is
not primarily on the drawing up of a scheme of formal guarantee of freedom, rather
it is on the attainment, preservation and grant of material justice within the sphere
of the state and spheres susceptible to state influence. 26 The basic elements of the
material rule oflaw are expressed in articles 1, 19 (2), 20 and 79 (3) of the Basic Law.
These provisions provide, among others, for the inviolability of human dignity and
its respect and protection by all state authority; subjection of the legislature, execu-
tive and judiciary to the basic rights; establishment of a democratic and social fed-
eral state; exercise of the state authority by the people by means of elections
through specific legislative, executive and judicial organs; subjection of legislation
to constitutional order; and the unamendability of these provisions and principles
even by the process of constitutional amendment. 27 The entire chapter on the basic
rights further strengthens the concept of material rule of law. Again, the Basic Law
expressly requires the constitutional order in the Laender to conform to the rule of
law. 28
The formal rule of law demands that all state activities are based on laws justi-
fied under the constitution and in case of unlawful exercise of power by the state,
the individual has legal remedy in an independent court. The rule of law in that
sense is fully embodied in the constitution and the legal system of Germany. The
principle of legality with its two wings - primacy of law and requirement of law - is
now well established.29 Certainty in laws is insisted and laws delegating legislative
powers to the executive in uncertain terms making the prospective subordinate
legislation unforeseeable and uncalculable have been invalidated by the courts for
6 Nature, Scope, and Growth of German Administrative Law

violation of the rule of law. 3o The principle of proportionality or reasonableness

(Verhiiltnismii./3igkeit) has been evolved to test the validity of laws and administra-
tive acts. 31 The right to approach the courts in case of infringement of any right by
any public authority is one of the basic rights enumerated in the Basic LaW.32 The
independence of the courts to be so approached has been fully ensured in the con-
stitution.33 The principle of separation of powers, which is considered to be an inte-
gral aspect of the rule of law, has been fully recognized. 34 The rule of law both in its
material and formal sense is thus fully entrenched in the German legal system and
controls as well as directs all state activity.

4. Separation of Powers

Like the rule of law the doctrine of separation of powers has played a significant
role in restricting and shaping the growth of asministrative law in the common-law
countries, particularly in the United States and Australia, by coming in the way of
delegation of legislative or judicial power to the executive.35 Even in India where
the constitution does not expressly vest the legislative, executive and judicial pow-
ers in three different organs on the pattern of the United States or Australia, the
doctrine has been heavily relied upon to read limitations on the delegation of legis-
lative powers to the executive.36 No such role has been played by this doctrine in
Germany although for long it has been considered a fundamental aspect ofthe Ger-
man legal system and, as we have seen above, an essential ingredient of a constitu-
tional state based on the rule oflaw. On the contrary, following the French interpre-
tation of the doctrine, adjudication in administrative disputes at lower levels was as-
signed to the administrative authorities till recently37 and wide legislative powers
were exercised by the executive under the Weimar Constitution of 1919.38
Under the present constitution the doctrine of separation of powers has been
partly expressed as an unamendable basic principle of the constitution in article 20
(2) in so far as it says that the state authority 'shall be exercised by ... specific legis-
lative, executive and judicial organs.' It is supplemented and supported by some
other provisions. For example, article 92 vests the judicial power in the judges and
article 137 (1) restricts the right of civil servants and judges to the elective posts.
The Basic Law, however, does not insist on a strict application of the doctrine in
the sense of complete separation of legislative, executive and judicial powers, their
personal, and their full independence from one another. It is subject to the principle
of checks and balances and close relationship between the legislature and the exec-
utive inherent in a parliamentary form of govemment.39 Thus the legislature has the
right to elect the federal President and the Chancellor.40 The two houses of federal
parliament have the right to be informed by the government on any matter.41 Annu-
al budget and expenditure is subject to special control of parliament.42 The lower
house of parliament also participates in the selection of the judges.43 The executive
(Chancellor and ministers) initiates most of the legislative measures and may be au-
thorized to legislate through ordinances.44 All the legislations require President's as-
sent and promulgation by him.45The Chancellor and the ministers have the right to
access to any meetings of the two houses of parliament or their committees.46 No
laws increasing the expenditure or reducing the revenue earnings can be passed
Social (Welfare) State 7

without the consent of the executive. 47 The executive also participates in the selec-
tion and appointment of the judges.48 The constitutionality of the legislative and ex-
ecutive acts is subject to review by the Federal Constitutional Court. 49 Besides all
the actions of the executive are subject ot judicial control. 50
Separation between the executive and the legislature is missing and all members
of the executive are normally also the members of the legislature. Only the persons
of the judiciary are separate from the executive and the legislature because no judge
can be a member of any of the other two organs or vice versa. Moreover, the judges
are fully independent of the executive or legislative control. 51 The judicial office has
also been held incompatible with the administrative functions. 52
What would be the effect of an action of any of the three organs done in viola-
tion of the doctrine of separation of powers (for example, legislative authorization
to the executive to perform judicial functions), has not yet been clearly answered.
The dominant juristic opinion supported by some observations of the Federal Con-
stitutional Court indicates that no organ of the state is permitted to have superiority
over another and no organ can be deprived of its competence necessary to fulfil its
constitutional obligations. 53 Accordingly, any encroachment into the core sphere of
any of the three powers will violate the separation of powers. 54 Whether in a given
case an encroachment is in the core sphere is to be carefully examined on the crite-
ria of intention, intensity and quantity. 55 It is suggested that article 92 creates a mon-
opoly of the courts on judicial power. 56 Any tinkering with this monopoly will vio-
late the doctrine of separation of powers.
Finally, it is suggested that a total demarcation of the administration from the
legislature, executive and judiciary is not possible in the modern state because the
legislature, executive and the judiciary also perform (even if in a limited field) ad-
ministrative acts; statutes in the form of Maftnahmegesetzen are analogous to ad-
ministrative acts; and some institutions cannot be outrightly assigned to the admin-
istration or excluded from it such as the ombudsman. 57 This depicts the difficulty in
strictly applying the doctrine of separation of powers to the modern administration.

5. Social (Welfare) State (Sozialstaat)

One of the express and unalterable basic principles of the Basic Law declares that
'the Federal Republic of Germany is a ... social ... state.'58 The Basic Law also or-
dains that the constitutions of the Laender also conform to the principle of social
state. 59 Some of the other provisions in which this principle finds expression are
those which require the Federation and the Laender to take due account in their fis-
cal administration of the requirements of overall economic equilibrium60 and grant
concurrent legislative powers with respect to refugee and expellee matters, public
welfare, war damages and reparations, benefit to war-disabled persons and to de-
pendents of those killed in war as well assistance to former prisoners of war.61
Above all the basic rights to human dignity, free development of personality, and
equality before law represent as much the idea of social state as of the rule oflaw.
The concept of the social state is not defined either in the Basic Law or any other
law. Nor is it easily definable. On a perusal of the immense literature on the subject
one may summarise that, in contrast to a liberal or individualistic state whose pri-
8 Nature, Scope, and Growth of German Administrative Law

mary concern is the protection of certain basic rights and freedoms of its citizens
through non-interference, the social state aims at restructuring the existing social or-
der with a view to remove the social and economic inequalities and risks in life lead-
ing to the realization of social justice and removal and prevention of distress and
calamity. The social state insists on social equality and realization of freedom under
the rule of law. That also distinguishes it from a totalitarian state. The important
characteristics of a social state are: creation of tolerable conditions of life, social
security, social equality, social freedom, and the provision for compensation for in-
juries to individual caused through state action. 62
Primary obligation of transforming the notion of social state into reality lies on
the legislature. The Federal Constitutional Court has held that the decision to have
a social state was an important constitutional decision63 and the law-maker is under
an obligation 'to take up constitutional social welfare activities and is in particular
duty bound to balance the conflicting interests and to create tolerable living condi-
tions.'64 The social state clause also binds the administration and the judiciary. The
administration must always take it into account in the implementation of laws and
exercise of discretion and the judiciary must interpret the laws in its light and direct
the administration to advise the citizen on the legal position and material facts. 65
Thus the Federal Constitutional Court has held that the administration should not
only assure freedom and equality but also see that, in view of the new techniques
and progress and the social needs and living conditions which the individual cannot
face alone, every vital need necessary for human dignity is satisfied.66 Further, in the
case of a handicapped prisoner the Federal Court of Justice has held that in a social
state based on the rule oflaw it is part of the official duty that the officials entrusted
to look after the welfare of the socially weak help them in availing themselves of the
legally granted rights and benefits.67 Again, the same court has held that the officers
are under an obligation to advise a person about the complexities of a special legal
field which he does not knoW. 68 And the Federal Administrative Court has held that
to a person of advancing age such advice is obligatory.69
The social state clause does not guarantee a general right to social help to an in-
dividual because its implementation has been left primarily to the law-maker. But a
claim to minimum social existence can be made under this clauseJo

C. Growth: Historical Developments

Administrative law in Germany has a long history, but the subject in its present
form did not begin to emerge until the second half of the last century. Unlike
England or France where a centralized administration had acquired its hold at an
early stage, Germany remained divided into small princely states till the last quarter
of the nineteenth century irrespective of the fact that the Holy Roman Empire of
Germany had come into existence as early as 962 and lasted till 1806. Only in 1871
for the first time a relatively strong central rule was established on the formation of
Bismarck's Reich. Even Bismarck's Reich, however, did not convert Germany into a
unitary state. Consequently, German territory as a whole lacked a uniform develop-
Growth: Historical Developments 9

ment of law and legal institutions. That makes the task of generalizing the develop-
ments in any branch of German law stupendously difficult.
Till the emergence of the notion of the state in the thirteenth century the ruler
ruled with the help of persons having personal loyalty and allegiance to him and,
therefore, the notion of an impersonal administration did not emerge till then. From
the fifteenth century onwards police laws (laws relating to law and order) came into
existence at the empire as well as local levels. The making or unmaking of these
laws, like any others, depended completely on the sweet will of the ruler. To provide
legal remedy against the excesses of an expanding administration arrangements
were made at the empire as well as local levels. At the empire level the two highest
courts - one established at Frankfurt in 1495 and shifted to Speyer in 1527 and to
Wetzlar in 1693 (Reichskammergericht) and the other in Vienna in 1498 (Reichsho-
frat) - did have jurisdiction to entertain complaints against the administration along
with their general jurisdiction. This jurisdiction was, however, drastically restricted
by the privilege enjoyed by the rulers not to submit to the jurisdiction of these
courts. At the local level the rulers provided for administrative panels (Kammerjus-
tiz or Kameraljustiz) consisting of administrative authorities authorized to decide
the disputes arising from administrative activities. These disputes were withdrawn
from the jurisdiction of the ordinary courts as governmental matters (Regierungss-
ache). This division led to frequent conflict of jurisdiction between the courts and
the panels because the courts came forward to provide relief wherever the vested
rights of an individual were affected by an administrative act. Moreover, the pri-
mary purpose of the panels was to supervise the administrative efficacy and effi-
ciency and not to provide relief to the individual against the unlawful acts of the ad-
ministration. These developments separate the German administrative law from its
counter-part in England where, except for a short time when the Star Chamber
claimed the exclusive authority to control the administrative authorities, the com-
mon-law courts continued to exercise their jurisdiction in all matters affecting the
rights of an individual.
The Prussian Code of Common Law (Allgemeines Landrechtfor die preu./3ischen
Staaten) of 1794 appeared as the first comprehensive code of the entire substantive
law. Although it did not contain any specific provisions relevant to the growth of
administrative law, it established the dominance of law as the basis of relationship
between the ruler and the ruled. It recognized the principle that nobody could be
compelled to do anything except under the authority of law. Also it recognized and
protected some rights of the individual vis-a-vis the state, such as imposition of a
general obligation on the state to compensate an individual who was compelled to
sacrifice his special rights and interests in the public weaUl Although the code
could not do away with the absolute character of the state, it was a connecting link
between the absolute and the constitutional state that followed.
Inspired by the liberal political thinking behind the French Revolution at the be-
ginning of the last century the German middle classes also challenged the absolu-
tism of the state personified in the monarch and his officials. They demanded state's
subjection to law and calculability in its actions, particularly when it affected pri-
vate business. Satisfaction of these demands required a constitutional state based
on the separation of powers, the people's participation in the legislative process,
and the guarantee of basic freedoms to be protected through independent courts.
10 Na,ture, Scope, and Growth of German Administrative Law

Although all these demands were not met immediately, a constitutional state based
on the rule of law had begun to emerge throughout the German territory from the
middle of the last century onwards. People's participation in law-making brought
the administration under their control and established the supremacy of law. More
and more areas of state-citizen relationship were brought under law. Not only were
these laws binding on the administration, the administration could no longer inter-
fere with the rights of the people without the authority of law. Even with respect to
police functions of the state which could be widely exercised for maintaining law
and order in the society, the Prussian Supreme Administrative Court in its Kreuz-
berg decision in 1882 held that the police functions were confined to the mainte-
nance of public security and order and did not extend to public welfare at large.72
Simultaneous developments in the adjudicatory machinery for the disposal of
administrative disputes played a decisive role in this process. In 1808 Prussia trans-
ferred the adjudicatory competence of some of the administrative panels to the or-
dinary civil courts leading to a separation between adjudication and administration.
In the same year, following the French model, Bayern authorized the Privy Council-
lor (Geheimer Rat) - an administrative authority - to hear and decide complaints in
administrative matters. Other southern states also followed that model. Concern for
improving the adjudication of administrative disputes was finally expressed in sec-
tion 182 of the Draft Constitution of the Empire of 1849. It provided that 'the ad-
ministrative adjudication is discontinued and on all infringements of rights courts
will decide.' Since the section was non-committal on the meaning or 'courts' a de-
bate ensued whether the ordinary civil courts should be entrusted with the adjudica-
tion of administrative disputes or separate independent administrative courts
should be established. Soon thereafter some of the states gave expression to the for-
mer interpretation in their constitutions and in 1861 Prussia further expanded the
jurisdiction of the civil courts in respect of administrative disputes. 73 Following the
latter interpretation Baden established an independent Higher Administrative
Court (Verwaltungsgerichtshoj) in 1863 as the first independent administrative court
in Germany. Due, in particular to the advocacy of Otto Bahr and Rudolf von Gneist
the latter interpretation prevailed. However, while Bahr stood for a common court
of last instance in civil and administrative matters, von Gneist argued for an inde-
pendent branch of administrative courts upto the last instance. Finally, von Gneist's
view carried the day.
Between 1872 to 1875 Prussia created an independent hierarchy of administra-
tive courts with the county committees (Kreisausschiisse) at the bottom, regional
committees (Bezirksausschusse) in the middle, and the Prussian Supreme Adminis-
trative Court (Preuftisches Oberverwaltungsgericht) at the apex. Between 1874 and
1924 administrative courts with two or three levels of independent hierarchy were
established all over the German territory. Generally, while the highest administra-
tive courts bore all the characteristics of a court of justice and were fully indepen-
dent of and separate from the executive, the courts at the lower levels did not enjoy
such independence and separation.74
The administrative courts in Prussia and some other states which followed Prus-
sian model were courts of enumerated jurisdiction. Except in police matters (mat-
ters which could be covered under the law and order), with respect to which they
had a general jurisdiction, their jurisdiction depended on a specific legislative as-
Growth: Historical Developments 11

signment. On the other hand the jurisdiction was not confined to the examination of
the legality of the administrative action but also extended to the examination of its
expediency or policy (ZweckmiifJigkeit). To that extent these courts lacked complete
separation from the administration. The courts in the southern states, for example,
in Wiirttemberg, however, had a general jurisdiction to entertain all disputes involv-
ing the infringement of rights of an individual by any administrative action. But
they did not have the jurisdiction to go into policy questions.
These arrangements which continued till the beginning of the World War II did
not suit the National Socialists who wanted a unified administration to carry out
their designs. Accordingly, on 28 August 1939 Hitler replaced the suits before the
administrative courts by the complaints before the administrative authorities. In the
guise of simplifying the administration the jurisdiction of the administrative courts
of the first instance was transferred to the lower administrative authorities on 6 No-
vember 1939. The apex administrative courts were, however, allowed to function for
some time in a limited way. On April 3, 1941 an Administrative Court of the Empire
(Reichsverwaltungsgericht) was established in which, among others, the jurisdiction
of the Prussian Supreme Administrative Court was merged. The apex administra-
tive courts in the rest of the country were abolished on 7 August 1944.
In the territory now known as West Germany the pre-War position was restored
on 10 October 1946 with the modification that general jurisdiction on the Wiirttem-
berg model was given to the administrative courts everywhere. In 1949 the Basic
Law envisaged a Federal Administrative Court which came into existence on
23 September 1952. The Law on Administrative Courts of21 January 1960 replaced
all the earlier laws and provided for a uniform system of administrative courts in all
the Laender.
Perhaps more than any other branch of the law the existence and development
of German administrative law owes to German jurists - normally professors of law.
Juristic writings till the middle of the nineteenth century were primarily concerned
with the principles and policy of administration. From the middle of the nineteenth
century, however, concern for the legality of the administrative action increased. In
1852 Carl Friedrich von Gerber described the relationship between the state and cit-
izen as a legal relationship with respect to which the citizen had a claim for legal
remedy even for the realization of public rights. 75 The process was carried further by
F. F. Mayer who in 1857 tried to develop a general administrative law in the place of
the locally oriented law.?6 In 1884 Otto von Sarwey stated the general principles of
administrative law and with that, despite the speciality of the law in the Laender, he
brought together the common principles of law. 77 The most fundamental was the
two volume work on German Administrative Law by Otto Mayer published in
1895-96.78 Taking help from the already developed French administrative law, he
gave a classical description of the administrative law in a liberal state based on the
rule of law. The principal concern of his work was the comprehension of the rule of
law and its binding effect on the regulatory administration. This task he performed
successfully by developing the concept of 'administrative act' - a concept which has
come to stay as the core concept of German administrative law. Otto Mayer's work
has left a decisive influence on subsequent scholarship and practice of administra-
tive law in Germany. Ernst Forsthoffs work in the middle of this century is charac-
terized as the conquest of administrative law as the law of regulatory administration
12 Nature, Scope, and Growth of German Administrative Law

and its application to benefactor administration with strong emphasis on acts con-
cerning the cooperative actions of the state and citizen such as public contracts.79
Hans J. Wolff and Otto Bachofhave finally taken the administrative law to the high-
est terminological and systematical precision which it possesses today.80

D. Administrative Organization

The Federal Republic of Germany, as the name itself manifests, is a federal state
and that fact has been declared as one of the basic principles of the Basic LaW.81
Consequently, the administrative competence of the state is divided between the
Federation and the Laender. Further, the Basic Law also guarantees the right of
self-administration to the communes and associations of communes.82 Thus the
Federal Republic of Germany has three sets of administrative authorities - federal,
Laender and municipal. Each set has its own divisions and subdivisions with elabo-
rate and complex arrangements. A bird's eye view, ignoring the complexities and
details, of the organizational structure of various authorities may give an inkling of
the machinery by which administrative power is exercised and functions performed
in Germany. It will also furnish the necessary background for understanding some
of the subsequent discussion.

1. Federal Administration

The Basic Law ordains that, unless otherwise provided or permitted, the Laender
shall execute federal laws as matters of their own concern.83 Accordingly, there are
Federal authorities at the upper level but relatively very few at the middle and lower
levels. The federal authorities are either direct (unmittelbar) or indirect (mittelbar)
authorities. Direct federal authorities are either the principal federal authorities
(Oberste Bundesbehorden) or other federal authorities (Bundesbehorden). The princi-
pal federal authorities are of constitutional order. They perform the functions as-
signed to them by the Basic Law and stand at the head of the administrative hier-
archy. They are: the Federal President including his office, the Presidium of the
Bundestag (lower house of federal parliament) including the administration of Bun-
destag, the Bundesrat (upper house of federal parliament), the Federal Chancellor
including his office, federal ministers, the Federal Constitutional Court, the Federal
Audit Office, and the Federal Bank. The other federal authorities are separate from
the ministries and are established as independent authorities. They do not have
hierarchy below them, though they may establish dependent branches. They are:
Press and Information Office of the Federal Government, Federal Statistical Office,
Federal Bureau of Criminal Investigation, Federal Administrative Office, German
Patents Office, Federal Office for Motor Traffic, German Weather Service, Federal
Health Office, and the Federal Office for Civil Defence. Some other federal author-
ities are the Federal Environment Office and the Federal Cartel Office.
Among the direct federal authorities are also included some federal institutions
Federal Administration 13

directly subordinate to a ministry, such as Physical-Technical Federal Institution,

Federal Institute for Materials Testing, and Federal Administration of Air Naviga-
tion Services. The Federation has direct administration with its own administrative
sub-structure only in the matter of foreign service, federal finance administration,
federal rail-roads, federal postal service, federal waterways and shipping, federal
border guard authorities, federal armed forces administration, and central office for
police and constitutional protection.84 The Federation may, however, establish fed-
eral authorities at the middle and lower levels, if new functions arise for the Federa-
tion in matters in which it has the power to legislate.85
The indirect or remote federal authorities are the corporate bodies and institu-
tions under public law. They are subject to supervision of the federal ministries.
Such authorities, for example, are the social insurance institutions whose sphere of
competence extends beyond the territory of one Land, federal broadcasting institu-
tions, and the federal institution for labour. The federal government may establish
any other autonomous federal authorities as well as federal corporate bodies and
institutions under public law for matters with respect to which it has the power to
legislate.86 .

2. State (Land) Administration

Administrative authorities at the level of Laender are quite varied and complex be-
cause, first, every Laender has its own administrative structure and, second, the ad-
ministrative structure in city-states materially differs from the structure in the rest of
the Laender. Non-existence of the distinction between the Laender and municipal
administration is the most distinguishing feature of the city-states vis-a-vis the other
Laender. We are confining our discussion to the administrative structure in the La-
ender other than the city-states.
A distinction between the direct and indirect administration is drawn in the La-
ender also, although such distinction does not play much role because of the exis-
tence of municipal administration. Direct authorities have a hierarchy and are clas-
sified into principal, higher, middle, and lower authorities. Principal Land authori-
ties (Oberste Landesbehorden) are: the Land government, the Minister President or
Chief Minister including Land Chancellery, ministries, President of the Land legis-
lature, and Land Audit Office. Higher Land authorities (OberlandesbehOrden) stand
under a principal Land authority. Their jurisdiction extends to the whole of the
Land. They are: the statistical office, Land bureau of criminal investigation, and
Land insurance institutions.
The middle and lower order authorities widely differ from Land to Land. Mid-
dle order authorities do not exist in all the Laender. Where they exist, they are di-
rectly subordinate to the principal authorities and their competence is confined on-
ly to a part of the Land. Primarily, they share the burden of the superior authorities
and supervise the lower and autonomous authorities. Among the middle order au-
thorities the president of the regional government (Regierungspriisident) holds the
central position whose competence extends to all the matters not expressly ex-
cluded from his jurisdiction. For this reason it is also said that there is a horizontal
concentration of power in the regional government. The government of the region is
14 Nature, Scope, and Growth of German Administrative Law

under the general supervision of the home ministry of the Land and also under the
supervision of other ministries, when it deals with any matter pertaining to any of
the ministries. The governmental regions are created on the basis of population and
area and their number varies from two in Hessen to seven in Bayern.
The lower level authorities are subordinate to the higher or middle level authori-
ties as the case may be. Their competence is confined to a small part of the Land. In
fact, unless any special authority subordinate to the higher or middle level authority
is appointed, there are no independent Land authorities at the lower level. In most
of the Laender the lower state authority is combined with the principal administra-
tive authority of the county (Landrat or Oberkreisdirektor). The principal adminis-
trative authority of the county is not only an organ of the county - an autonomous
body - but also at the same time a lower Land administrative authority. Thus the
Land functions at the lower level are performed by the counties or towns which
have no county.
Beside the general internal administration there are special administrations in
all the Laender with some lower administrative structure, such as Land financial ad-
ministration with middle and lower level authorities, and forest administration with
lower level authorities. Moreover, there are administrative establishments in the
Laender in the form of non-juristic institutions.
The indirect Land administration primarily consists of the local or municipal
administration which makes a separate category in itself. In addition to that there
are other public law corporate bodies, institutions, and foundations such as cham-
bers of doctors, lawyers, commerce and industry, handicrafts, Land economy, etc.;
Land insurance institutions; public law bank and credit institutions; public law
broadcasting institutions; and institutions of higher education.

3. Municipal Administration

Municipalities are autonomous corporate bodies to administer their own affairs.

Various kinds of such bodies are: the communes (Gemeinde), associations of com-
munes (Gemeindeverbiinde), counties (Landkreise), higher municipal associations
(hohere Kommunalverbiinde), and municipal associations for specific purposes
(Zweckverbiinde). The organization and powers of these bodies are regulated by the
commune codes (Gemeindeordnungen) and county constitutions (Kreisordnungen)
and the laws relating to various kinds of municipal associations made by Land
legislatures. The communes are the smallest, as well as the most important, unit of
the municipal administration. Their organization differs from Land to Land. Uni-
formity exists only in the fact that every commune has an elected collegial represen-
tative organ. Very small communes have an assembly consisting of all qualified
electors. The representative body is called differently in different Laender as com-
mune council (Gemeinderat), or city council (Stadtrat), or council (Rat), etc. This
body not only makes the byelaws to regulate the affairs within its jurisdiction, but
also possesses wide administrative competence. Although the constitution of the ex-
ecutive authority of the commune differs from state to state, the mayor (Burgermeis-
ter) or the lord mayor (Oberburgermeister) is the chief executive in the communes.
The office of the mayor or lord mayor is an elective office.
Municipal Administration 15

The constitution of counties also differs from Land to Land. Every county has a
directly elected body called the county council (Kreistag). In some Laender it is pre-
sided over by a member known as chairman of the county council (Kreistagsvorsit-
zender), Landrat or county president (Kreispriisident), while in others by a chief ad-
ministrative officer (Hauptverwaltungsbeamte). The collegial administrative organ
in every county is the county committee (Kreisausschuj3) whose composition differs
from Land to Land. The executive organ of a county is always a professional officer
who is known either as higher county director (Oberkreisdirektor) or Landrat. He is
also a lower level Land administrative authority and accordingly serves as a con-

Administrative Organization
I
I I i

Federal Administration Land Administration Municipal Administration

I
I
I
I I
Direct Indirect I I
Adminis- Adminis- I I
tration tration I I
L __ , I
(public law corporate bodies and I
institutions subject to ministerial
I
I I
supervision) I
I
I
Principal Au- Other authori-
I I
Institutions di- I I
thorities (Fed- ties (Autono- rectly subordi- I I
eral President, mous authori- nate to minis- I I
Chancellor, ties) tries I I
ministers, etc. Some of them have I I
their own administrative I I
substructure. Otherwise the Land I I
administration works for them at I I
the middle and lower levels). I I
I I
I
Direct
I
Indirect administration I
administration (public law corporate bodies, I
I institutions, and I
I'
I foundations)
I
Principal Authorities
(Minister-President, I
ministers, etc.) I
I I
r
I --, I
Higher Authorities Middle level Authorities (not in all Laender) I
(Land-wide
I competence) I (President of the regional government) I
I
L _ _ _ _ ..J
I
I
Lower level Authorities I
I
L- _ _ _ _ _ ~

I I
Commune County Authorities Associations of Higher municipal
Authorities (Landrat or Chief Communes associations
(Mayor or Lord County Director) (Mayor of the assn. of (President of the
Mayor) communes) regional govt. or a I
director) ~
,----
Associations for specific
purposes (head of the
association)
16 Nature, Scope, and Growth of German Administrative Law

necting link between the Land and municipal self-administration in a county. He is

either elected by the county council with or without the participation of the Land or
is appointed by the Land with the consent of the county council.
The associations of communes are created for the purpose of dealing with mat-
ters that extend beyond the limits of one commune. Such associations exist in all the
Laender within the framework of a county (Landkreis). They are constituted by the
neighbouring communes within a county. They act either in their own name or on
assignment by the constituting communes and function under the direction of the
Laender. Their constitution corresponds to the constitution of the constituent com-
munes. They consist of a representative body presided by a mayor of the joint com-
mune (Samtgemeindeburgermeister) in Niedersachsen and by a directing adminis-
trative officer in other Laender.
The higher municipal associations which exist in some of the Laender are con-
stituted by the neighbouring counties or towns without a county to perform func-
tions which extend beyond the limits of one county. Their members may be either
the citizens within their jurisdiction or only the counties or towns without a county.
The executive organ of such associations is either a director or the president of the
regional government.
Communes or associations of communes may also constitute associations for
specific purposes (Zweckverbiinde) either by virtue of a law or an agreement. The
main organ of such associations is a body representing the member communes with
a head of the association (Verbandsvorsteher). In addition committees may be con-
stituted to share the burden of work of the association.

References
1 von Savigny's first utterance of his views appeared in 1814 in his famous vom Bernfunserer Zeit
for Gesetzgebung und Rechtswissenschaft as a reaction to Thibaut's proposal of codification of
German law on the lines of Code Napolion in France although his refined and final version ap-
peared in his System of Modem Roman Law (1840).
2 Dicey AV: Introduction to the Study of the Law of the Constitution, 330 (10th ed, 1959).
3 Dicey AV: The Development of Administrative Law in England, 31 L Q Rev 148 (1915), repro-
duced in his above cited work at 493 ff.
4 See, for example, Schwartz B, Wade HWR: Legal Control of Government (1972) to note the dif-
ference between the US and British administrative law.
5 Wade HWR: Administrative Law, 5 (5th ed, 1982).
6 Ibid.
7 Idat7.
8 The Conseil d'Etat in France is a part of the executive branch of the state and in Germany the
predecessors of the present administrative courts were administrative panels to supervise effi-
ciency and efficacy of the administration and till its abolition during the World War II the Prus-
sian Supreme Administrative Court and courts below it as well as courts in other parts of the
country based on that model had the jurisdiction to examine not only the legality but also the
suitability or expediency of an administrative act. For details see below, p 10 f.
9 See Wade, above, n 5 at 26 and Gellhom W, Byse C, Strauss PL: Administrative Law, xx (7th ed,
1979).
10 Wolff HJ, Bachof 0: Verwaltungsrecht I, 97 (9th ed, 1974).
11 Maurer H: Allgemeines Verwaltungsrecht, 20 (1980).
12 Schmidt-Assmann E: Das allgemeine Verwaltungsrecht als Ordnungsidee und System, 7 (1982).
Compare Professor Newman's statement that "Administrative law is 'Legal Civics', no more, no
less" cited in Gellhom, Byse, Strauss, above, n 9 at xxi.
References 17

13 In some recent writings international administrative law has been added as a third division to
the existing two. See, for example, Achterberg N: Allgemeines Verwaltungsrecht, 19 (1982). But a
famous work includes international administrative law in the category of particular administra-
tive law: see von Munch I (ed): Besonderes Verwaltungsrecht, 781 ff. (5th ed, 1979).
14 See von Munch I, id.
15 A comprehensive federal legislation on state liability enacted in 1980 was invalidated by the
Federal Constitutional Court for lack of competence of federal parliament: see below, p 140.
16 See Achterberg N, above, n 13 at 495ff. Even in Wolff HJ, Bachof 0: Verwaltungsrecht III (4th
ed, 1978) the judicial control has been discussed only with respect to administrative legislation;
at 455ff.
17 See below, p 104ff.
18 See below, p 110ff. and Appendix III.
19 See Appendix II.
20 See Verwaltungsvollstreckungsgesetz of 27 April 1953.
21 With very minor exceptions (see below, p 55 ff.) the private law activities of the administration
are treated at par with the activities of private individuals.
22 Wolff HJ, Bachoff 0: above, n 10 at 99.
23 Above, n 13 at 9. Professor Achterberg puts forward his own theory - the trustee theory (Sach-
waltertheorie) - according to which public law is the sum oflegal norms which determine the le-
gal relationship in which at least one of the participating subjects comes forward as a trustee of
public welfare (p 11).
24 See von Munch I: Verwaltung und Verwaltungsrecht in Erichsen H-U, Martens W (eds): Allge-
meines Verwaltungsrecht, 19 (4th ed, 1979).
25 Above, n 2 at 329ff.
26 Katz A: Grundkurs im OjJentlichen Recht 1,74 (4th ed, 1980).
27 See Appendix I.
28 Basic Law, art 28 (1).
29 See below, p 68 ff.
30 See below, p 22.
31 See below, p 88ff.
32 Basic Law, art 19(4). See Appendix and also Schmidt-Assmann E: Art 19 IV GG als Teil des
Rechtsstaatsprinzips, [1983]2 NVwZ 1 ff.
33 See below, p 106f.
34 See below, p 6 f.
35 See Davis KC: 1 Administrative Law Treatise, 64 (1958). In Australia the doctrine still plays an
important role in the matter of delegation of judicial power to the executive. See Benjafield DG,
Whitmore H: Principles ofAustralian Administrative Law, 24ff. (3d ed, 1966); Wynes WA: Legis-
lative, Executive and Judicial Power in Australia, 388ff. (4th ed, 1970).
36 See [n re the Delhi Laws Act, AIR 1951 SC 332. Also Smt Indira Nehru Gandhi v Raj Narain,
AIR 1975 SC 2299.
37 See below, p 10f.
38 See below, p 19
39 See decision of28 Nov 1957, 7 BVerfGE 183, 188.
40 Basic Law, arts 54, 61, 63, 67 and 68.
41 [d, arts 43, 44 and 53.
42 [d, arts 110, 114 and 115.
43 Id, art 95(2).
44 [d, arts 76 and 80. Also below, P 20ff.
45 /d, art 82.
46 [d, arts 43 and 53.
47 [d, art 113.
48 [d, arts 60(1) and 95(2).
49 [d, arts 93 and 100.
50 Id, art 19(4).
51 [d, arts 97 and 98.
52 Decision of 17 Nov 1959, 10 BVerfGE 200,217; of9 May 1962, 14 BVerfGE 56, 68; of 27 Oct
1964,18 BVerfGE 172, 183; and of 3 June 1980 [1981] NJW, 912 (BVerfG).
18 Nature, Scope, and Growth of German Administrative Law

53 See decision of 27 April 1959, 9 BVerfGE 268, 279.

54 Decision of15 Dec 1970, 30 BVerfGE 1, 28.
55 Katz A, above, n 26 at 81; also Stein E: Staatsrecht. 65 (7th ed, 1980) who, on the basis of some
court observations, tries to establish that the separation of powers is above the positive law and
therefore any violation of the principle even by a constitutional provision is challengeable.
56 von Munch I (ed): 1 Grundgesetz - Kommentar. 736 (2d ed, 1981).
57 von Munch, above, n 24 at 5.
58 Basic Law, art 20(1) read with art 79(3).
59 Id. art 28(1).
60 Id. art 109(2).
61 Id. art 74 Nos 6, 7, 9 and 10.
62 Katz A, above n 26 at 97 fT.; also WolfT and Bachof, above, n 10 at 54 fT.
63 Decision of 16 Jan 1957, 6 BVerfGE 33, 41.
64 Decision of21 May 1957, 7 BVerfGE 1.
65 von Munch, above, n 24 at 41.
66 Decision of 18 July 1967,22 BVerfGE 180, 204.
67 Decision of 26 Sep 1957 [1957] NJW, 1873, 1874 (BGH).
68 Decision of 5 April 1965 [1965] NJW, 1226-27 (BGH).
69 von Munch, above, n 24 at 42-43.
70 Katz A, above, n 26 at 105; also generally Conrad D, Grundbedurfnisse als Gegenstand der Ent-
wicklungspolitik in Wagner N, Rieger HC (eds): Interdisziplinare Aspekte der Grundbedar/sstrate-
gie. 93fT. (1982).
71 See below, p 149fT.
72 Decision of 14 June 1882, 9 PrOVGE 353.
73 See Jellinek W: Verwaltungsrecht. 91 (3d ed, 1931).
74 This is evident from the constitution of the administrative courts in Prussia. The county commit-
tees consisted of civil servants and six lay judges. The regional committees consisted of the pre-
sident of the regional government or his representative and six other members two of whom
were legally qualified civil servants. The Prussian Supreme Administrative Court consisted of a
president, presidents of the senates and councillors. Half of the councillors were from the higher
administration and rest were persons competent to be appointed as judges. All the members of
the court, however, enjoyed a life tenure and full independence from the executive which was
not available to the members of the committees. Also Ule CH: German Administrative Jurisdic-
tion,25 Revue Intemationale des Sciences Administrativ 173,175 (1959). The Weimar Constitu-
tion of 1919 did not go beyond enjoining the Reich and the Laender to create specialized ad-
ministrative courts (art 107).
75 von Gerber CF: Uher Offentliche Rechte (1852).
76 Mayer FF: Grundsiitze des Verwaltungsrechts mit besonderer Rucksicht auf gemeinsames
deutsches Recht (1862).
77 von Sarwey 0: Aligemeines Verwaltungsrecht(1884).
78. Mayer 0: Deutsches Verwaltungsrecht (1895-96).
79 ForsthofT E: Die Verwaltung als Leistungstriiger (1938); Lehrbuch des Verwaltungsrechts. vol 1
(10th ed, 1973).
80 WolfT HJ, Bachof 0: Verwaltungsrecht I (9th ed, 1974 first published in 1956); Verwaltungs-
recht II (4th ed, 1976); and Verwaltungsrecht III (4th ed, 1978).
81 Basic Law, art 20(1) read with art 79(3).
82 Id. art 28(2).
83 Id. art 83.
84 Id. arts 87(1), 87 a, 87b.
85 Id. art 87(3).
86 Ibid.
Chapter 2
Legislative Powers: Delegated Legislation

A.General

In German law, as in common law, the executive has no inherent legislative powers.
The executive can exercise only such legislative powers as are either specifically del-
egated to it by the legislature or are exceptionally given to it for very limited purpose
and as a transitional measure under the Basic Law. 1 In this respect German law
clearly differs from French law which recognizes an inherent power with the execu-
tive to legislate through regulations (reglements) with respect to all matters not spe-
cifically assigned to the legislature.2 German law goes even farther than the com-
mon law in restraining the legislature from delegating its legislative functions to the
executive. For example in England the Parliament may, at least in theory, delegate
its legislative powers to the executive to any extent whatsoever. In countries like the
United States, India, or Australia the constitution is silent on the question of delega-
tion but the courts have evolved some limitations which the legislature cannot cross
in delegating its legislative functions to the executive. The limits, however, are so ob-
scure that they seem to be as good as non-existent. The German Basic Law, unlike
the constitution of the United States or of Australia, does not specifically vest all the
legislative powers in the legislature but it lays down express limits within which the
legislature can delegate its legislative functions to the executive.
The reason for laying down express limits can be seen in the misuse of the del-
egation of legislative powers under the Weimar Constitution of 1919. The Weimar
Constitution, like any other constitution did not have any provision on delegation
of legislative powers but in fact the legislature almost abdicated its powers and
functions to the executive by authorizing it to make not only ordinary laws to an un-
limited extent but also laws amending the constitution. 3 The Basic Law takes care
that that precedent or practice is not repeated any more.
Another peculiarity of German law is that it draws a clear distinction between
delegation of legislative powers to the executive or the government departments
and delegation to the autonomous bodies. It also uses specific expressions for the
two kinds of delegated legislation. The legislation made by the executive is called
the ordinances (Rechtsverordnungen or Verordnungen) while the legislation made by
the autonomous bodies is called the bylaws (Satzungen). The two kinds of delega-
tions and the exercise of legislative powers under them by the delegate is governed
by different legal and constitutional norms and, therefore, they require to be treated
separately.
German law also recognizes two other types of norms which the executive or the
administrative bodies may make. They are the administrative directions (Verwal-
tungsvorschriften) and special ordinances (Sonderverordnungen). The administrative
20 Legislative Powers: Delegated Legislation

directions like their counterpart in the common law regulate the internal matters of
the administration and even though sometimes, as we have seen elsewhere,4 legal
consequences are attached to them, they do not require any legislative authorization
and are considered to be inherent with the executive in so far as they relate to the
organization of the business of the concerned authority. Therefore, they do not fall
within the scope of delegated legislation. The specific ordinances relate to special or
subordinate power relationship such as defence services, schools, universities, pub-
lic services, etc. Till recently they were also considered extra-legal and did not re-
quire any authorization from the legislature. But now, as it has been discussed else-
where,5 in so far as they interfere with the rights of an individual they also require
legislative authorization. The federal and Land legislatures are slowly making such
authorization within their respective legislative spheres and after such authorization
the special ordinances also fall either within the category of ordinances (Rechtsver-
ordnungen) or byelaws - probably latter - and therefore the same principles of law
apply to them as are applicable to the ordinances or byelaws and do not form an ad-
ditional category to be discussed separately. Thus in the final analysis the two cate-
gories of delegated legislation are only the ordinances and the byelaws which for
the reasons already mentioned may be discussed separately.

B. Executive Legislation: Ordinances (Rechtsverordnungen)

1. Constitutional Limitations

Delegated legislation through ordinances is governed by article 80 of the Basic Law

clause (1) of which reads:
The Federal Government, a Federal Minister or the Land Governments may be
authorized by a law to issue ordinances (Rechtsverordnungen). The content, pur-
pose and scope of the powers conferred must be set forth in the law. The legal
basis must be stated in the ordinance. If a law provides that such authorization
may be delegated, such delegation shall require another ordinance.
Law in article 80(1) means a. formal legislation and therefore no power to make
ordinances can be based on customary or general law irrespective of the fact wheth-
er an ordinance is beneficial or regulatory. Second, the ordinance making power
can be conferred only on the three specified organs or authorities mentioned in the
article. No power can be conferred on any other authority directly although the law
may authorize any of those three authorities to subdelegate their powers. Strictly
speaking, even among these authorities the authorization must be exclusive but in
view of the relaxation given in article 80 (2) the legislature may authorize more than
one of these authorities to issue ordinances in combination or with the cooperation
or consent of some other authority.6 Third, and most important, is the requirement
of the contents, purpose, and scope of the authorization. It is similar to but more re-
strictive and definite than the requirement of policy or standards evolved by the
courts in the United States or India. The words 'content, purpose and scope' are not
entirely exclusive of each other and therefore the Federal Constitutional Court has
Constitutional Limitations 21

not made any definite effort to define them separately. However, from the state-
ments in different decisions one may conclude that the 'content' refers to the sub-
ject-matter of the regulation,? 'purpose' to the programme drawn out by the legisla-
ture to be achieved through regulation, 8 and 'scope' to the limits or extent of the reg-
ulation.9 Laying down the scope of these words in one of its earliest opinions the
Federal Constitutional Court said: 1o
It is to be decided from case to case whether the contents, purpose and scope of
the authorization to make ordinances are sufficiently defined. It lacks the re-
quired limitations if it is so indefinite that it cannot be foreseen in which cases
and with which propensity it will be used and what would be the content of the
ordinances that can be issued on the basis of that authorization.
Although this proposition has been further clarified and refined in subsequent
decisions it has come to stay as a standard test for determining the validity of a legis-
lative authorization or delegation. ll Subsequently the court has held that the con-
tents, purpose, and scope of the delegation need not be expressly defined in the en-
abling law. It is enough if they can be clearly determined from it12 by the application
of the principles and methods of legislative interpretation, on the consideration of
other connected statutory provisions as well as the origin and background of a legis-
lation.13
Looking at the trend of decisions it appears that to begin with the Court adopted
a restrictive approach on the question of the contents, purpose, and scope of the
delegation which in course of time it has relaxed and liberalized to a very great ex-
tent. Thus in the Laender-Reorganization Case from which the above proposition
has been quoted the Court invalidated a provision of a law on the reorganization of
Laender because it gave a general power to the Federal Home Minister to imple-
ment the provisions of that law through ordinances. 14 Similarly, in the War Prisoners
Case it invalidated a provision of a law on the compensation to German prisoners
of war because it conferred a general power on the federal government to make de-
tailed provisions about the preconditions for the grant of such compensation with-
out clearly laying down the scope and purpose of the power. 1S Again, the provisions
of the sales-tax law were invalidated because they authorized the Federal Finance
Minister to make ordinances, among others, for the implementation of a provision
in that law authorizing him to take necessary measures for the equalization of tax
liability on the single and multi-level enterprises without defining such enterprises
and without laying down the means which the minister could employ for the pur-
pose of equalization. 16
Liberalization of the approach is visible in the Customs Casein which the Court
upheld Sect. 49(3) of the Customs Law of 1939 which authorized the Federal Gov-
ernment to give explanations through ordinances for the interpretation and applica-
tion of the customs tariff. The Court went beyond the enabling law to find out its
contents, purpose, and scope and held that they were quite definite in so far as they
could be determined with reference to the provisions of the Customs Tariff Law of
1951 which referred to Sect.49(3) and also with reference to the international agree-
ments which the Federal Republic of Germany had executed with other countriesP
Similarly, in view of the provision of the international postal contracts and the du-
ties arising from the monopoly of the government in the postal matters the Federal
Administrative Court did not see any unconstitutionality in Sect. 14 of the Law on
22 Legislative Powers: Delegated Legislation

Postal Administration which confers general powers on the Federal Government to

lay down conditions and fee for the use and establishment of the post and telecom-
munication. 18 Recently, on 25 November 1980 the Federal Constitutional Court has
upheld the validity of a state law on civil servants which authorized the Land gov-
ernment to determine the incidental duties, particularly the public duties, of the civil
servants. It held that the public duties could be determined on the basis of the other
corresponding and connected Land laws relating to such duties. 19
Stricter standards on the question of contents, purpose, and scope have been
laid down by the Court with respect to the laws that authorize interference with the
rights and liberties of an individual. In respect of such laws the Court does not con-
fine itself to article 80(1) but also invokes the general principle of the rule of law
(Rechtsstaatsprinzip). Thus in the Equalization of Tax Liability Case, mentioned
above, it said :20
It is a consequence of the principle of the rule of law (Rechtsstaatsprinzip) that
the authorization must be so exactly definite that already from it and not for the
first time from the ordinance based upon it, it must be discernable and foresee-
able as to what can be required of a citizen.
Applying that proposition it invalidated a provision of the Law on Transport Fi-
nance which authorized the Federal Government to lay down the detailed provi-
sions for the application of the Law on Transport Tax. 21 Applying the same princi-
ple more strictly to the penal laws and the laws authorizing deprivation of personal
liberty the Court has held that although the executive may be authorized to make
penal ordinances but the authorization in terms of the contents, purpose, and scope
must be so definite that the preconditions of the criminality and the kind of the pen-
alty are foreseeable from the authorization and not for the first time from the ordi-
nance. 22 Further, the enabling law must clearly mention the scope and kind of the
punishment though it may leave to the delegate the specification of the facts or ele-
ments constituting the offence. 23
The requirement of content, purpose, and scope does not debar legislative au-
thorization to make ordinances with retrospective effect. But such ordinances
would be subject to the limitations applicable to the enabling law. For example, no
penal law can be made retrospectively through an ordinance. 24 No clear court pro-
nouncement is available on the question of authorization to amend or modify the
enabling law through ordinance but the predominant legal opinion is that excep-
tionally it is possible so long as the requirement of the contents, purpose, and scope
of such authorization is clearly laid down. 25 Section 10 of the Law on Shop Hours is
cited as an example of such authorization. 26
To sum up, although the Court through liberalization of its approach on the
question of contents, purpose, and scope of delegation has come very close to the
position that prevails in countries like India or the United States where the constitu-
tion is silent on the issue, it is very doubtful whether it would permit such wide del-
egation as is permissible in those countries. 27
The requirement of content, purpose, and scope of authorization in article 80(1)
was intended to be applicable only to delegation by the Federal Parliament and the
delegation by the Land legislatures was left to be regulated by the Land constitu-
tions. But, apart from the fact that the Laender have made provisions similar to arti-
cle 80 in their constitutions,28 the Federal Constitutional Court has extended the ap-
Procedural Requirements 23

plication of the requirement of content, purpose, and scope to the legislative delega-
tions in the Laender also through the principle of the rule of law (Rechtsstaatsprin-
zip) mentioned above. 29 In fact, if one looks into the reported decisions of the Feder-
al Constitutional Court of the last few years one rarely finds a federal legislation
having been contested under article 80 while quite a few Land laws are made a sub-
ject of contest under it. Thus, in fact, the requirement of content, purpose, and scope
in article 80(1) has acquired a universal application to all legislative delegation in
German law authorizing the making of ordinances at least to the extent such delega-
tion affects the individual rights and liberties. 3o

2. Procedural Requirements

Germany has no general law like the Administrative Procedure Act 1946 of the
United States to regulate the procedure for making the delegated legislation.31 Some
of the basic requirements on the procedure are laid down in the Basic Law. Others
may be laid down in the enabling law itself. But by and large there is no tradition or
practice of prior consultation of the affected interests or groups or subsequent scru-
tiny through the laying procedure or through a special committee of the legislature
as is generally the practice in England or in other common-law countries. Some
German scholars are critical of this weakness in their system and have suggested
that the safeguards against the misuse of delegated power could be more effective if
the kind of legislative safeguards existing in England could also be introduced in
German law. 32
However, the constitutional requirements in Germany are quite important and
provide strong safeguards against the exercise of ordinance-making power. The first
is given in article 80(1) already quoted, i.e., the ordinance must cite the enabling
provision on which it is based and if it is based on more than one law or provisions
then all such provisions must be cited. The citation has to be given in the preamble
of the ordinance. Second, unless a law provides otherwise all ordinances issued by
the Federal Government or a Federal minister relating to the basic rules for the use
offacilities of the Federal railroads, postal and telecommunications services as well
as charges therefor, all ordinances issued pursuent to Federal laws that require the
consent of the Bundesrat (upper house of the Federal Parliament) and the ordi-
nances that are executed by the Laender as agents of the Federation or as matters of
their concern require the consent of the Bundesrat. 33 Third, every ordinance must
be signed by the issuing authority.34
Fourth, every ordinance must be published in the Federal Law Gazette (Bun-
desgesetzblatte) or, if a law so provides, in the Federal Gazette (Bundesanzeiger).35
As a matter of practice all the important and permanent ordinances are published in
the former while the less significant and temporary ordinances are published in the
latter. Ordinances issued by the Land governments and other sub-delegates have to
be published in the Land law gazettes. Mixed ordinances have to be published both
in the Federal Law Gazette as well as the gazette of the concerned Land. In this re-
spect German law is more forthright and sound than the English law as laid down
in the Statutory Instruments Act of 1946 or the U.S. law laid down in the Federal
Register Act of1935 read with s.4(c) of the Administrative Procedure Act of 1946 or
24 Legislative Powers: Delegated Legislation

the Indian law which has no general provision relating to the publication of delegat-
ed legislation. Fifth, every ordinance must specify the date of its commencement or
coming into effect. Failing such specification it comes into effect on the fourteenth
day after its publication in the gazette.36 An ordinance does not come into force till
it is properly published. Till its publication it is only a draft.
There exists no general requirement that reasons must be given for the ordi-
nances although sometimes the issuing authorities give reasons in their local or de-
partmental gazettes. Similarly, reasons are attached to the ordinances submitted to
the Bundesrat for its consent if the ordinance is not otherwise understandable or the
statement of reasons is appropriate in a particular case.

3. Judicial Control '

In considering the judicial control of delegated legislation or ordinance-making

power the common lawyer should note that in German law judicial review of del-
egated legislation may be sought in two ways. One is the incidental or indirect re-
view similar to the one recognized in the common-law countries according to which
the validity of a legislation or norm may be disputed in prosecution or enforcement
proceedings based on such norm. The other, which is unknown to common law, is
the direct or principal judicial review of legislative actionY Under it the validity of
a legislation may be challenged immediately after it comes into force without wait-
ing for its enforcement or without in fact there being a real case or controversy in
terms of the U. S. Constitution. This control is applicable both in case of constitu-
tional as well as non-constitutional questions. On constitutional questions, the Fed-
eral Constitutional Court may decide upon the compatibility of a federal or Land
law with the Basic Law either on the request of the Federal or a Land government or
one third members of the Bundestag, or on a complaint of unconstitutionality by
any person who alleges that any of his basic rights or some of the other constitution-
al rights have been infringed by a legislation. The communes or associations of
communes may also file a complaint of unconstitutionality of a legislation if their
right to self-administration is violated by it.38 Similar provisions have been made in
the Land constitutions with respect to Land legislations.
The details of the procedure for challenging the validity of laws vis-a-vis the Ba-
sic Law are given in the Law on the Federal Constitutional Court of1951 according
to which the process is started by a written application challenging the validity of
law. The authority which has made that law is made the opposite party or respon-
dent. The decision of the Court is given after oral hearing unless all the parties
waive such hearing. The decision is binding on the constitutional organs of the Fed-
eration as well as the Laender and also on all courts and the administrative authori-
ties. In the cases mentioned above the decision of the Court has the force oflaw and
its operative part has to be published by the Federal Minister of Justice in the Fed-
eral Law Gazette.39
Thus all questions of excessive delegation may be determined through this
procedure of principal, direct or abstract judicial review of legislation.
In non-constitutional matters the Law on Administrative Courts of 1960 pro-
vides for direct judicial review in two situations.40
Grounds of Judicial Review 25

(1) To judge the validity of the byelaws (Satzungen) made under the provisions
of the Federal Building Law (Bundesbaugesetz) or the Law on Promotion of City
Building (Stiidtebauforderungsgesetz) or the ordinances issued under sec-
tions 188(2) or 92(2) respectively of these laws.
(2) To test the validity of the subordinate legislation made by any Land if the
Land law so provides.
Thus, while in the non-constitutional matters the Federal subordinate legislation
is almost out of the reach of direct or principal judicial control the Land sub-ordi-
nate legislation has been brought under it. But all the Laender have not made use of
this enabling provision and therefore the subordinate legislation in those Laender
which have made no use of this provision also remains out ofthe reach of the direct
judicial review. 41
Jurisdiction to review in the abovementioned non-constitutional matters lies on-
ly with the higher administrative courts (Oberverwaltungsgerichte). Any person who
has suffered or expects to suffer in near future an injury from a subordinate legisla-
tion may file an application in the court disputing the validity of such legislation. 42
On the question of standing the Federal Administrative Court has followed a liberal
policy. For example, anyone whose private interests had to be taken into account
while approving a building plan can challenge a byelaw relating to such plan even
though his legally protected interests have not been infringed. 43 Application for ju-
dicial review can be filed by an administrative authority also. The rest of the proce-
dure is the same as in any other suit before an administrative court unless a Land
law provides otherwise. If the court comes to the conclusion that the disputed legis-
lation is invalid it declares it to be null and void. The judgment effaces the invalidat-
ed norm from the statute book and the respondent is under an obligation to publish
the operative part of the judgment in the same form in which the invalidated provi-
sion was published or was required to be published. 44 The judgment of the court is
final and no revision in the Federal Administrative Court is available. 45
The matters which are not covered by direct judicial review as mentioned above
are reviewed incidentally in the same manner as in the common law countries. But
the existing practice shows that almost in all cases in which the validity of an ordi-
nance is questioned the issue is generally converted into a constitutional one and
accordingly, the direct judicial review is availed. Since direct judicial review is a
more effective and expedient remedy resort to it is quite natural.

4. Grounds of Judicial Review

The validity of delegated legislation may be challenged at two levels. First, it may be
alleged that the enabling legislation is ultra vires of the Basic Law (or of the Land
constitution if it is a Land legislation). Second, the ordinance is ultra vires of the en-
abling legislation or the Basic Law (or Land constitution if it is a Land ordinance).
In any case the ground for judicial review is the vires either of the enabling legisla-
tion or of the ordinance. Apart from any other ground of invalidity, an enabling law
may be ultra vires because it delegates powers in violation of article 80(1) or the
principle of the rule of law. An ordinance may be ultra vires either because it con-
flicts with the provisions of the Basic Law (or Land constitution), or the enabling
26 Legislative Powers: Delegated Legislation

law, or because it fails to observe any procedural requirement laid down in the Basic
Law (or the Land constitution) or the enabling law. The former may be called sub-
stantive and the latter procedural ultra vires.
Substantive ultra vires on constitutional grounds results from any conflict with a
substantive - as distinguished from procedural - provision of the Basic Law (or the
Land constitution). Thus the Federal Constitutional Court invalidated an ordinance
issued under the Federal Indemnification Law of 1956 because it violated the prin-
ciple of equality established under article 3 (1) of the Basic Law. 46 Similarly, it invali-
dated Sect. 49(1) (a) of the Income Tax Implementation Ordinance 1955 in so far as
it allowed the deduction of the expenses only to the political parties which elected
at least one member to the Bundestag (lower house of the Federal Parliament) or to
the representative house of a state legislature because it also violated the right to
equality apart from being ultra vires of the enabling legislation.47
An ordinance is ultra vires of the enabling legislation if either there is no basis
for it in the legislation or it exceeds authorized limits. Thus Sect. 71 of the Road Li-
censing Regulations was invalidated because it could not be based on the enabling
provisions of the Road Traffic Code. 48 In another case the court invalidated a provi-
sion of an ordinance issued under the law relating to the security for mortgages on
the ground that the ordinance was not an ordinance to carry out the provisions of
the law as authorized by the enabling provision rather it was a supplementing ordi-
nance. The fact that it was issued with the consent or approval of the economic and
state councils did not affect its validity.49 Again, the Court invalidated Sect. 49 (1) (a)
of the Income Tax Implementation Ordinance 1955 because it was ultra vires of
Sect.l0(b) of the Income Tax Law 1954 in so far as it allowed deduction of ex-
penses only to those parties which elected at least one member to the Bundestag or
the representative house of a state legislature. 5o
An ordinance which has no legal basis at the time of its making cannot be vali-
dated by a retrospective legislation. 51
An ordinance which sub-delegates the legislative authority without authoriza-
tion in the enabling law is null and void and so also the sub-delegation. Thus in a
case the court invalidated Sect. 4 of the Road Licensing Regulations because it was
made by the transport authorities while according to Sect.6 of the Road Traffic
Code only transport minister could make such regulations. 52
Interestingly, in reviewing the ordinance-making power the Federal Constitu-
tional Court has also held that the delegate may be compelled to issue an ordinance
if the enabling law expressly or impliedly so provides. Thus the Court has held that
although Sect. 126 of the Federal Indemnification Law did not expressly compel the
executive to issue an ordinance, such compulsion was implied in so far as the in-
demnification provisions of the Law could not be implemented without an ordi-
nance. 53
Procedural ultra vires on constitutional grounds may result from the non-ob-
servance or defective observance of the requirement of citing the basis of the ordi-
nance, or non-taking of the consent of the Bundesrat in cases where it is required in
article 80(2), or failure to sign the ordinance, or failure to publish it in accordance
with the provisions of article 82.54 An ordinance will be procedurally ultra vires of
the enabling legislation if somebody has participated in its making who according
to the enabling legislation was not authorized to participate. But it would depend
Autonomous Legislation: Byelaws 27

upon the decisive influence of such person on the ordinance. Thus mere hearing by
an authority not contemplated in law is not damaging. Similarly, there is no illegali-
ty if an authority not authorized by law issues an ordinance with the consent of the
authorized authority. Thus, in a case of a price control ordinance the court held that
there was no illegality in issuing the ordinance by the price commissioner if he had
done it with the consent of the authority to whom he was supposed under the law to
propose the issuing of such ordinance. 55
An ordinance is void if the required consent or participation is lacking. Thus,
the court invalidated the provisions of an ordinance relating to the fixing of rent for
the extension of living space into the small garden attached to the 'house on the
ground that they were not made after hearing the experts as required by the en-
abling law although the preamble to the ordinance mentioned that the experts had
been heard while in fact only the officials were heard. 56

5. Sub-delegation of Ordinance-Making Power

Article 80(1) of the Basic Law permits sub-delegation of ordinance making power
to the other authorities or bodies provided the enabling legislation authorizes it. The
authorization need not necessarily be express; a clear implication to that effect is
enough. Sub-delegation must be made by a specific ordinance made only for that
purpose. It may be done either with respect to the entire subject-matter of the del-
egation or with respect to a part of it. In the former case the requirement of the con-
tent, purpose, and scope does not apply because it is already satisfied by the en-
abling legislation but in the latter case the enabling ordinance must specify the con-
tent, purpose, and scope within which the sub-delegate may legislate.
Sub-delegated legislation is subject to similar judicial review as the delegated
legislation.

C. Autonomous Legislation: Byelaws (Satzungen)

Byelaws are the subordinate legislation made by the juristic persons or bodies rec-
ognized by the state for that purpose such as communes, universities, professional
bodies, broadcasting establishments, German Federal Bank, etc., within the legally
granted autonomy to them to administer their affairs. Legislative authorization is al-
ways necessary for making byelaws. The communes and associations of communes
have a constitutional claim for such authorization in article 28 (2) of the Basic Law
which reads:
The communes must be guaranteed the right to regulate on their own responsi-
bility all the affairs of the local community within the limits set by law. The asso-
ciations of communes shall also have the right of self government in accordance
with the law and within the limits of the functions assigned to them by law.
Other bodies do not have a similar constitutional claim but the legislature is al-
ways free to authorize them to make byelaws. Since the byelaws are applicable only
28 Legislative Powers: Delegated Legislation

within a specific locality or upon the members or persons subject to the concerned
autonomous body and these bodies are not part of the state executive the limita-
tions on delegation oflegislative powers to issue ordinances given in article 80(1) of
the Basic Law are not applicable to the delegation to make byelaws. 57 Moreover,
some of the autonomous bodies, particularly the communes, are legitimate demo-
cratic institutions and therefore they deserve wider general powers to regulate their
internal matters. 58

1. Constitutional Limitations

Although legislative powers in wide terms may be conferred on the autonomous

bodies but that does not mean that the legislature is free to abdicate its functions in
favour of such bodies. The Federal Constitutional Court has reminded that on the
principle of the rule of law as well as democracy the legislature is under an obliga-
tion to make only objectively ascertainable delegation so far as the power to inter-
fere with the liberties of the individual, particularly his fundamental rights, is con-
ferred on the autonomous bodies. 59 In that case the Court did not invalidate the
particular delegation but it held that under a general delegation to make byelaws for
the medical profession the medical council could not make a byelaw penalizing a
specialist doctor for treating a general patient because the byelaw conflicted with
the fundamental right to choose any trade or profession under article 12(1) of the
Basic Law. The right to choose any trade or profession is subject to regulation by
law but either the legislature must make such law or it should authorize a delegate
in clear terms to do that. 60 Although this case did not deal with delegation to the
communes or byelaws made by them, it has been suggested that the same principle
will be applicable to them and accordingly the communes require specific authori-
zation for interfering with the rights of an individual.61

2. Procedural Requirements

The procedure for making byelaws is regulated by each individual enabling legisla-
tion. The byelaws of the communes are normally made through a formal process.
Part of this process is governed by the Basic Law in so far as article 28(1) requires
that in all communes people must be represented by a body chosen in general, di-
rect, free, equal and secret elections. These elected bodies make the byelaws. The
byelaws are published in the commune gazette.62

3. Judicial Control

The byelaws are subject to judicial review in the same way as the ordinances either
incidentally in the enforcement proceedings or directly as discussed above. As has
already been seen, two cases of direct review of byelaws under the two Federal stat-
utes are specifically provided in Sect. 47 of the Law on Administrative Courts and
the rest are covered by the enabling provision of that section in those Laender
Concluding Remarks 29

which have made use of it in so far as the byelaws are made under state legislation.63
Examples are available in English law also where declaration of invalidity of a bye-
law has been obtained without waiting for penal proceedings for infringement.64
The invalidity of a byelaw in incidental review is not of general application and the
concerned authorities may still enforce it in another case notwithstanding its inva-
lidity in one case.65
Among the grounds for judicial review of the byelaws are the non-observance of
the procedural requirements, ultra vires, and propriety of considerations.66 In re-
viewing the procedural defects the court takes into account the nature of the pro-
cedural requirement - mandatory or directory - and it will be slow to invalidate a
byelaw on that ground if its decision would be contrary to the existing practice and
lead to an interpretation of the procedure which could not be clearly foreseen from
the procedural provisions. The doctrine of ultra vires is applied in the same manner
to the byelaws as it is applied to the ordinance or to the byelaws in common law.
The byelaws must not conflict with the enabling law and the scheme contemplated
by it. However, unlike English law, there is no clear requirement that the byelaws
must also conform to other laws and the common law. 67 As regards the propriety of
considerations the law requires that at the time of making the byelaws all the rele-
vant considerations should be taken into account and second, the byelaw should
not be obviously disproportionate in its operation and application. Since the dis-
proportionality is a delicate issue the court would interfere only if it is obvious.68
The requirement of proportionality corresponds to the requirement of reasonable-
ness of the byelaws in English and Indian law. 69

D. Concluding Remarks

The foregoing discussion on the delegation of legislative powers to the executive

and the autonomous bodies makes it abundantly clear that although recognizing
the exigencies of the modem government the legislature's competence to delegate
its powers has been expressly admitted in the German law, yet that competence is
neither unlimited nor the determination of its limits rests with the legislature. The fi-
nal word in this respect comes from the courts. Of course, as is apparent from the
decisions of the Federal Constitutional Court, the courts are neither unrealistic nor
pedantic in their approach and looking to the facts of each situation, they would
sustain even very wide legislative delegation. But at the same time they would not
let it go to the extent that the boundaries of the administrative powers that may be
exercised under such delegation become judicially indeterminable. That is a great
safeguard against the misuse of administrative powers which has been expressly as-
sured in the Basic Law and fortified by procedural requirements and judicial inter-
pretation and application. Perhaps in this respect the German citizen vis-a-vis the
administration stands on a more solid ground than his counterpart in the common-
law countries.
30 Legislative Powers: Delegated Legislation

References

Article 119 of the Basic Law authorizes the Federal Government to issue ordinances with the
consent of the Bundesratin relation to refugees and expellees pending Federal legislation in this
regard. Compare articles 123 and 213 of the Constitution of India which authorize respectively
the President and the Governors of the states to issue ordinances when the Parliament or the
state legislature as the case may be is not in session.
2 See articles 34 and 37 of the Constitution of France. Also see David R: English Law and French
Law, 74 ff. (1980) and Schwartz B: French Administrative Law and the Common Law World, 89 ff.
(1954).
3 See the empowering laws of 13 October 1923, 8 Dec 1923 and 24 March 1933.
4 Below, p94. For their position in English and Indian law see respectively Wade HWR: Adminis-
trative Law, 561f. and 743ff. (5th ed, 1982) and Ramana v IAAuthority of India, AIR 1979 SC
1628, 1636. Also Rajamallaiah v Anil Kishore, AIR 1980 SC 1502.
5 Below, p 70.
6 Article 80(2) reads: The consent of the Bundesrat shall be required, unless otherwise provided
by federal legislation, for ordinances having the force of law issued by the Federal Government
or a Federal Minister concerning basic rules for the use of facilities of the federal railroads and
of postal and telecommunication services, or charges therefor, or concerning the construction
and operation of railroads, as well as for ordinances having the force of law issued on the basis
of federal laws that require the consent of the Bundesrat or that are executed by the Laender as
agents of the Federation or as matters of their own concern.
7 Decision of 18 Oct 1966, 20 BVerfGE 283,305.
8 Ibid, also decision of 11 Jan 1966, 19 BVerfGE 354,364.
9 Decision of 13 July 1956, 5 BVerfGE 71,77.
10 Decision of 23 Oct 1951, 1 BVerfGE 14, 60.
11 See, for example, decisions of 10 June 1953,2 BVerfGE307, 334; of 20 July 1954, 4 BVerfGE7,
21; of 13 June 1956,5 BVerfGE71, 76-77; of5 March 1958,7 BVerfGE282,301;of11 Oct 1966,
20 BVerfGE 257,270-71.
12 Decision of 10June 1953,2 BVerfGE307, 334-35.
13 Decision of25 Nov 1980, 55 BVerfGE207, 226-27.
14 Decision of 23 Oct 1951, 1 BVerfGE 14, 60.
15 Decision of 13 June 1956,5 BVerfGE 71,77.
16 Decision of 5 March 1958,7 BVerfGE 282.
17 Decision of 5 May 1965, 19 BVerfGE 17, 30-31.
18 Decision of 6 Oct 1967, 28 BVerwGE 36,45.
19 55 BVerfGE 207,226-27.
20 Above, n 16 at 302.
21 Decision of 2 June 1964, 18 BVerfGE 52, 61. Also decision of 11 Oct 1966,20 BVerfGE257, 269
where, invalidating the provisions of a law authorizing imposition of fee, the Court held that if
the legislature wants to delegate the structuring of the fee or charges then it must determine the
propensity and scope of the expected regulation to the extent that the possible contents of the
ordinance to be issued are foreseeable. It must show the ordinance-maker the limits which he
must observe: at 269-70.
22 Decision of 25 July 1962, 14 BVerfGE 245,251; also of 3 July 1962, 14 BVerfGE 174,185.
23 Id, decision of 3 July 1962 at 187. For similar position in the United States when a law invokes
criminal sanctions and potentially affects fundamental rights see Gellhorn W, Byse C, Strauss
PL: Administrative Law, 67 and 97 (7th ed, 1979).
24 Decision of 3 July 1962 above, n 22 at 185.
25 Ossenbuhl: Die Quellen des Verwaltungsrechts in Erichsen H-U, Martens W (eds): Allgemeines
Verwaltungsrecht, 75 (4th ed, 1979). Also Maunz, Durig G, Herzog R, Scholz R: Grundgesetz, ii
art80 p 7 (1978).
26 Ossenbuhl, above, n25 at 75.
27 For the US and Indian position see respectively, Davis KC: Administrative Law Text, 26ff. (3d
ed, 1972) and Jain MP, Jain SN: Principles ofAdministrative Law, 32ff. (3d ed, 1979).
References 31

28 See, for example, article 61 of the Constitution of the state of Baden-Wurttemberg.

29 See, for example, decision of 23 May 1980, 54 BVerfGE 143.
30 Also see Goerlich H: Grnndrechte als Verfahrensgarantien, 273ff. (1981).
31 For some delegated legislation like the police measures there are detailed procedural rules in the
state constitutions and laws. See, G6tz: Allgemeines Polizei- und Ordnungsrecht, 21 ff. (6th ed,
1980). With respect to federal ordinances some bare guidelines are also given in the rules relat-
ing to the odering of government business, see Sartorius I N038 ss 15(1) (b), 26(2) and 30.
32 von Munch, I (ed): Grnndgesetz-Kommentar, vol iii, 238-39 (1978).
33 Basic Law, art 80 (2). See above, n6.
34 Id, art82(1).
35 Ibid.
36 Id, art 82 (2).
37 For details see von Engelhardt, O-RB: Der Rechtsschutz gegen Rechtsnormen (1971).
38 Basic Law, art93.
39 Law on the Federal Constitutional Court 1951, s31.
40 S47(1).
41 Seven out of the eleven states namely, Baden-Wurttemberg, Bayern, Bremen, Hessen, Nieder-
sachsen, Rheinland-Pfalz and Schleswig-Holstein have made use of this provision. Non use of
this provision, however, does not violate article 19(4) of the Basic Law because that article does
not provide a definite form for challenging the action of a public authority: decision of 27 July
1971,31 BVerfGE 364. For the text of art. 19(4) see Appendix I.
42 VwGO, s47(2).
43 Decision of9 Nov 1979, 59 BVerwGE87. Also decision of9 Feb 1982 [1983] NVwZ 163 (VGH
Mannheim).
44 See above, n42, s47(b)
45 This is so whether the court invalidates or upholds the law: decision of 8 Sept 1972, 4
BVerfGE 323,327.
46 Decision of 13 Dec 1961, 13 BVerfGE 248.
47 Decision of 21 Feb 1957, 6 BVerfGE 273, 280-81. Also see decision of 23 May 1980, 54
BVerfGE 143.
48 Decision of 3 July 1962, 14 BVerfGE 188.
49 Decision of 24 April 1953, 2 BVerfGE 237,255-257.
50 Decision of 21 Feb 1957,6 BVerfGE 273,281.
51 Decision of 15 Nov 1967, 22 BVerfGE 330,345-46.
52 Decision of 24 April 1963 [1964] DOV, 61, 62 (Hess. VGH).
53 Decision of 13 Dec 1961, 13 BVerfGE 248,254 and of 23 July 1963, 16 BVerfGE 332,338.
54 von Mangoldt H, Klein F: Das Bonner Grnndgesetz, vol iii, 1957 (1974).
55 Decision of 22 Oct 1954, 15 BGHZ 113,119-20.
56 Decision of 17 Nov 1959, 10 BVerfGE 221,226-27.
57 See decisions of 2 May 1961, 12 BVerfGE 319, 325; of 14 Dec 1965, 19 BVerfGE 253, 267; of
24 June 1969,26 BVerfGE228, 237; of9 May 1972, 33 BVerfGE 125,157.
58 This representative aspect of the local bodies was taken into account by the Indian Supreme
Court also in upholding wider delegation in favour of a municipality. Delhi Municipality v BeS
& WMills, AIR 1968 SC 1232, 1245.
59 Decision of9 May 1972, 33 BVerfGE 125,158.
60 Id, at 161 ff.
61 Schmidt-Assmann: Die kommunale Rechtssetzung im Gefiige der administrativen Handlungsfor-
men und Rechtsquellen, 8 (1981). Also Ossenbuhl F, above, n25 at 93-94.
62 For details see id Schmidt-Assmann, at 14ff.
63 See above, n 41.
64 Wade, above, n4 at 581.
65 Schmidt-Assmann, above, n. 54 at 52.
66 Id, at 58.
67 See Garner JF: Administrative Law, 89 (5th ed, 1979).
68 Schmidt-Assmann, above, n54 at 61.
69 See Krnse v Johnson [1898]2 QB 91 and the Delhi Municipality case, above, n58 at 1247.
Chapter 3
Administrative Powers: Administrative Act

1. Concept and Meaning of Administrative Act

'Administrative act' (Verwaltungsakt) is a core concept of the German administra-

tive law. 1 It covers most of the actions of the administrative authorities through
which they affect the legal interests of an individual. The origin of this concept is
traced from the French concept of acte administratiJfrom which it was borrowed by
the German jurists and developed into a German concept since 1826 onwards. To
begin with it covered all measures of the administration whether taken under the
private or public law. But slowly its scope was confined to the administrative mea-
sures in the area of public law and was finally defined by Professor Otto Mayer in
his monumental work on German administrative law in 1895 as an 'authoritative
pronouncement of the administration which in an individual case determines the
rights of a subject.'2 The concept so defined was applied by the administrative
courts and further refined in the later juristic writings but it did not find its mention
in any legislation till after the World War II when the expression 'administrative act'
was used in some laws on administrative courts. Later it also found its mention in
article 129 (1) of the Basic Law and several sections of the Law on Administrative
Courts of 1960. Finally, on the basis of the existing law and practice the concept has
now been defined in Sect. 35 of the Law of Administrative Procedure of 1976 in the
following words:
Administrative act is every order, decision or other sovereign measure taken by
an authority for the regulation of a particular case in the sphere of public law
and directed at immediate external legal consequences.
To remove some of the then existing doubts about the concept, the second sentence
of Sect. 35 adds that a general order (Allgemeinverfiigung) is also an administrative
act which addresses a category of persons who are determined or are determinable
by common characteristics or which concerns the public law quality of a thing or its
use by the general public.
Although the Law of Administrative Procedure is a federal law and is not bind-
ing on the Land authorities with respect to Land matters, as a matter of fact almost
all the Laender have adopted it through Land legislations. Thus the definition of
administrative act in Sect.35 has become a starting point on any discussion on the
concept of administrative act. We may also proceed to do so with reference to the
various ch~racteristics given in that section.

(a) A Sovereign Measure: The words 'any order or decision' read with the words 'or
other sovereign measure' make it clear that the former are simply illustrative and
not exhaustive and, therefore, the name or title given to a sovereign measure is not
decisive if it satisfies other attributes of an administrative act. A measure is every ob-
Concept and Meaning of Administrative Act 33

jective or purpose-oriented behaviour attributable to a natural or juristic person. It

need not be expressed through words whether spoken or written. It may be ex-
pressed through signs or movements of body or through any other means including
the form given to it by the mechanization or automation of the governmental busi-
ness. 3 Important consideration is that the measure must be a sovereign measure,
i. e., it must be taken in reference to the relationship of sovereign and subject or su-
preme and subordinate. All measures, particularly those taken for the enforcement
of the provisions of public law, are sovereign measures if they are attributable to pu-
blic law. Thus, such measures of the administration as the cancellation of tenancy or
grant of a contract for government or defence procurement are not an administra-
tive act because they are based in private law. Equally, conclusion of a public law
contract is not a sovereign measure because it is based not on the unilateral sover-
eign and subordinate relationship but on the bilateral relationship of the parties.
Further, not only the sovereign measure must be in the domain of public law it
must also fall within the domain of administrative law. Measures falling within the
domain of constitutional law, intel;1lationallaw, church law, procedural law or crim-
inallaw are not administrative acts.4 On this issue the domain of law and not the
person who takes a measure is decisive. Thus when the President of the Federal Re-
public of Germany promulgates a law he performs a constitutional function but
when he dismisses a federal civil servant he performs an administrative function.
(b) Public Authority: A public authority, as defined in Sect. 1 (4) of the Law of Ad-
ministrative Procedure 1976, is any authority which performs the functions of pub-
lic administration. Undoubtedly the authorities in the federal and Land administra-
tion, in the administration of the communes and associations of communes, and in
the administration of the institutions, corporations, and foundations of public law
are such authorities. In this matter measures of the administration have to be sepa-
rated from the measures of the government, the legislature, and the judiciary. The
government organs, legislative bodies, and the courts as such are not public authori-
ties although the ministers or presidents of the legislative bodies or courts may also
be exceptionally acting as public authorities. The fact whether an authority is mono-
cratic or colleaguial is immaterial. An entrepreneur to whom public power is
granted to take measures for regulating individual case in the area of public law
may also be a public authority.5
(c) Regulation: A measure has the regulatory character only ifit is aimed at creating
legal consequences. Doubts have been expressed whether the declaratory measures
are of regulatory nature. But the Federal Administrative Court has spoken of the
'declaratory administrative act'.6 Moreover, such measures are of regulatory charac-
ter in so far as they declare the existence or non-existence oflegal rights in a particu-
lar case. Thus declaration of an appointment or dismissal or retirement of a civil ser-
vant is an administrative act. But purely factual administrative measures such as
Realakte, advice, information, investigation, preparatory or part measures or legally
relevant expression of intent of the authority devoid of any regulatory character
such as a clarification about some payment or time limit are excluded from the cate-
gory of regulatory acts. Equally repetition of a decision creates no new regulation
unless the repetition is based on new interpretation creating fresh legal conse-
quences?
34 Administrative Powers: Administrative Act

Legal consequences can be created only through legal regulations and therefore
every measure must be based on some law. Till recently measures could be taken
without the authority of law in the area of special subordinate relationship but that
is not possible any more. 8 The only exception remains with respect to clemency to
the convicted persons which by and large still lies outside the legal bounds.9 Theo-
retically those other acts of the government which are designated Regierungsakte or
act of state are also excluded from the category of administrative acts but in fact
there is hardly any act of the administration which may be called an act of state to-
day.!O

(d) Particular Case: An administrative act is distinguished from a legislative act in

so far as it regulates a specific concrete case and does not lay down general abstract
norms applicable to indefinite number of cases. The distinction is drawn on the ba-
sis of the persons and the facts which a measure takes into account. If a measure
aims at a definite number of persons or deals with definite facts it is concrete and
specific. But if it deals with indefinite number of persons or facts it is abstract and
general. There can be several combinations of persons and facts of which two stand
at the two opposite extremes and cause no difficulty about their nature. On the one
extreme is a measure which is aimed at indeterminate persons with respect to inde-
terminate state of affairs while on the other extreme is a measure which is aimed at a
determinate number of persons with respect to determinate state of affairs. Clearly
the former is general and abstract and, therefore, legislative while the latter is specif-
ic and concrete and, therefore, administrative. The combinations in between these
two extreme,s, however, create problems. A measure may aim at a determinate num-
ber of persohs but with respect to indeterminate state of affairs. Such measure is
specific but at the same time abstract. Generally, such measures are administrative
acts.!! On the other hand a measure may aim at an indefinite number of persons but
at a determinate state of affairs in point of time or place. Such measure is general
but at the same time concrete. In such cases if the number of persons is ascertain-
able through their common characteristics to which the measure refers then it is an
administrative act in the form of a general order within the second sentence of
Sect. 35 of the Law of Administrative Procedure. Such, for example, is an order ask-
ing the people not to use a specific street because of danger of explosion, or not to
take out a planned procession on a particular day, or that the owners, occupiers or
tenants in a definite residential area affected from malaria are from a definite date
under an obligation to eliminate the mosquitos at their costs within a definite time,
or imposing a prohibition on the sale of a particular salad in a definite area where
an infection has been caused and spread by that salad. 12
An administrative act, as is clear from the second sentence of Sect. 35, may also
be in the form of a general order if it regulates the public law quality of a thing or
matter such as opening or closing of, or change in, a public street, determination of
water conservation area, or an entry of a natural monument in the register of natural
monuments. With the clarification in the last part of Sect.35 that a general order
concerning the use of public property by the people is an administrative act the dis-
puted question about the nature of the traffic signs has also been settled which are a
measure in the nature of an administrative act. Doubts have existed about the na-
ture of the plans, particularly construction plans, prepared by the administrative au-
Concept and Meaning of Administative Act 35

thorities, and about the declaration of general bindingness of a collective agree-

ment. While the position about the latter is still unclear the former are considered to
be legislative act and not administrative act. 13

(e) Direct External Legal Effects: A measure to be an administrative act must be

aimed at creating external legal consequences. It means in the first instance that the
consequences are the direct result of the measure. For example, a grant or refusal to
grant permission to construct a building has direct legal consequences and therefore
is an administrative act. But an inspector's report on which such decision is based is
not an administrative act because it is neither directed at creating nor actually
creates any immediate legal consequences. Similarly, a direction by a superior au-
thority to its subordinate is not in itself an administrative act although on its basis an
administrative act may be taken. Such direction may acquire the character of an ad-
ministrative act if instead of being an intra-departmental instruction it is issued to a
subordinate not in his official but personal capacity or if it affects not the profes-
sional operative conditions but basic jural relationships such as matters of leave,
salary or dismissal.
Further, the measure must affect the outsiders and should not be a purely inter-
nal matter of departmental administration or organization. Unless the authority has
the intent to give external legal effect to its measure, purely internal departmental
matters will not convert into an administrative act even if the measure has some ex-
ternal implications. Problems arise where the measure to be taken requires the par-
ticipation or approval of some other, particularly of a higher authority. Whether the
grant or refusal of approval or confirmation amounts to an administrative act will de
pend on whether such measure is aimed at creating legal consequences for the citi-
zens. If it does it will be an administrative act through it would be a rare situation.
Problems also arise with respect to the so-called organizational acts. It has been
held that change in municipal territories,14 fixing of new prices for telephone net-
work as well as the closure of a school 15 in the exercise of administrative organiza-
tional power is an administrative measure with external legal effects while merely
transfer of an officer from one post or place to another is an internal organizational
act. 16
From the foregoing discussion on the concept and meaning of an administrative
act in German law it is clear that that expression should not be confused with its
counterpart in common law. Strictly speaking common law has developed no con-
cept of administrative act as has been done in German law. Acts of the administra-
tive authorities are generally classified into administrative (executive), legislative,
and judicial (quasi-judicial) in common law. But in this classification all those acts
of the administration which do not fall within the category of legislative and judicial
are administrative acts. It makes the category of such acts infinite and much wider
than that expression covers in German law. At the same time almost all the judicial
acts of the administration in the common law, which sometimes are also qualified
with the prefix 'quasi', may be covered under the concept of administrative act in
German law. Under the German Basic Law judicial functions in the strict sense can
be performed only by the courts and, therefore, they cannot be assigned to the ad-
ministrative authorities. Thus, an administrative act in German law roughly com-
prehends the quasi-judicial or judicial acts and such other acts of the administration
36 Administrative Powers: Administrative Act

which in the common law are subject to judicial review. The notion of administra-
tive act in German law has a great deal to do with judicial remedies because it is on-
ly with respect to such acts that a suit for invalidity or a suit for mandatory injunc-
tion can be filed. But it is not a product of judicial remedies as has been the case in
the common law in naming an act administrative, judicial or quasi-judicial. Recent
trend of bringing all the acts of administration within the purview of judicial review,
particularly under certiorari and prohibition on the basis of consequences of an act
to an individual without regard to the class (administrative, judicial or quasi-judi-
cial) in which one would like to put them, brings the common law close to the Ger-
man concept of administrative act. But still it appears that the German concept has
more flexibility and is capable of developing in the direction of providing not only
relief to an individual against an unfair administration but also a watch on the ad-
ministrative efficiency to ensure the functioning of the administration in the public
interest because that concept is defined not in terms of effect on an individual but in
terms of external effects.

2. Classification of Administrative Acts

In German literature on administrative law the expression "administrative act" is

invariably used with qualification. The qualification is attached according to the
class into which it is put. The classification, however, has no statutory sanction. Nor
is it uniform. Its legal implications are also limited. But it is a good aid in the com-
prehension of the subject. The classification may be made on the following lines:

(a) According to the Subject-Matter: On the basis of the subject-matter administra-

tive acts may be divided into commanding, structuring, and declaratory acts. A
commanding administrative act consists of commands or prohibitions and compels
a definite behaviour such as police directions or traffic signs. A structuring act es-
tablishes, changes or removes a concrete legal relationship such as naturalization of
a person, appointment to a post or conferment of graduation, etc. A declaratory ad-
ministrative act declares a legally important attribute of a person such as declara-
tion of citizenship or of monetary help such as scholarship or subvention. It differs
from a structuring administrative act because it simply declares the existing legal
position and does not change the material legal position.

(b) According to the Consequences: According to its consequences on the concerned

person an administrative act may be either beneficial or disadvantageous. The latter
may also be called burdening or regulatory administrative act. A beneficial act es-
tablishes, upholds or confirms a legal or legally important advantage such as grant
of a fellowship or permission to construct a house while a burdening act causes a
disadvantage to the affected person either by interfering with his rights or by reject-
ing a request for some favour or benefit such as denial of fellowship or dismissal
from a job. All commanding or prohibiting acts fall within the category of regulato-
ry acts. An administrative act may be burdening and beneficial simultaneously as in
case of a grant made subject to certain obligations or when a request for some bene-
fit is only partly allowed.
Form, Contents, and Procedure of an Administrative Act 37

An administrative act may have its impact on persons other than those to whom
it is addressed. It is called an administrative act affecting third parties. Such is the
case, for example, when a permission to construct a house or a plant is granted to a
person which affects the legal interests of the neighbours.

(c) According to the Legal Limits on the Administrator: From this point of view an
administrative act may be either non-discretionary, discretionary, or "free" act. A
non-discretionary administrative act is one which can be taken or not taken only if
the conditions laid down in the law exist. Discretionary acts are those with respect
to which the law leaves the discretion to the administrator. Free administrative acts
are those which are not bound by any statutory conditions. Due to the principle of
legality the scope of such acts is confined to the beneficial acts and that too in the
area of subventions.

3. Form, Contents, and Procedure of an Administrative Act

The requirements of form, contents and procedure which an administrative act

must satisfy are given in the Law of Administrative Procedure 1976.

(a) Form and Contents

Unless a law otherwise provides, an administrative act may be expressed in any

formY It can be issued orally, in writing or in any other form. However, an oral ad-
ministrative act has to be confirmed in writing if there is a legitimate interest in such
confirmation and the concerned person demands it immediately. An act expressed
in writing must specify the authority which has issued it and must also contain the
signature or name of the head of that authority or of any other person authorized to
do so. The requirement of signature and name does not apply to an act expressed
through an automatic device. In such cases the statement of the subject-matter may
also be replaced by a key mark if the person to whom the act is addressed or any
other affected person may know its subject-matter from the explanation attached to
the act.
The contents of the administrative act must be sufficiently definite and certain. 18
Particularly, they must be unambiguous about the person to whom they are ad-
dressed, the subject-matter of regulation, and the legal consequences. The require-
ment of certainty of contents applies as much to the provisions incidental to an ad-
ministrative act as to the act.
Every administrative act expressed or confirmed in writing must containt writ-
ten reasons. The statement of reasons must give the essential facts and legal grounds
which the administrative authority has considered in arriving at its decision. In case
of discretionary administrative acts the reasons must also include the aspects on the
basis of which the authority has exercised its discretion. 19 No reasons are, however,
required if (i) the administrative act corresponds with the application of the con-
cerned person and does not cause any injury to a third party; or (ii) the concerned
person either already knows the factual and legal basis of the opinion of the author-
38 Administrative Powers: Administrative Act

ity or it is capable of being known without any written reasons or anything more; or
(iii) the authority takes large number of administrative acts of the same type or takes
them with the help of automatic device and the reasons are not required in the cir-
cumstances of each individual case; or (iv) a law provides that no reasons need be
given; or (v) the administrative act is a general order announced publicly.2o Inspite
of the exceptions, the requirement of reasons is much stronger in German law than
in England or India. In England Sect. 13 of the Tribunals and Enquiries Act 1971
covers a wide range of administrative decisions in which reasons are to be given but
it does not cover all. In India there is no general law requiring the giving of reasons
for administrative decisions and the judicial precedents have also not been able to
make it a general rule although the courts have performed a commendable job in
this respect. 21
The contents of an administrative act must also include the statement of legal
remedy against that act. This requirement is given not in the Law of Administrative
Procedure 1976 but in Sect. 59 of the Law on Administrative Courts 1960. Accord-
ing to that provision a written administrative act which is subject to challenge for in-
validity must also contain an explanation advising the concerned person about the
legal remedy against that act, the authority before whom and the time limit within
which such remedy can be sought. This requirement is unknown to common law. At
least there is no general statutory or judicial rule which insists on such requirement.

(b) Procedure

The Law of Administrative Procedure 1976 is not a comprehensive legislation on

each and every step of procedure to be followed in taking an administrative act. It,
however, lays down all the general principles of such procedure as they have devel-
oped in the German law. These principles are:

(i) Informality of Procedure: Although the Law draws a distinction between the for-
mal and informal procedure but the formal procedure is applicable only when a law
specifically so requires. 22 Otherwise the procedure is dominated by informality and
has to be carried out with simplicity and expediency.23 The procedure may be start-
ed by an administrative authority suo moto or on the application of a party.24 If a
law requires presentation of an application for starting the procedure it may also
provide the form, time limit, and other conditions for such application.

(ii) Inquisitorial Principle: It requires the administrative authority to act as a trustee

of public interests and use all means at its command to ascertain the full facts in or-
der to arrive at a right decision. 25 It need not confine itself to the evidence produced
by the parties and if necessary should seek any information, hear the parties, call
witnesses and experts, look into the documents and records, conduct inspection or
take judicial notice of any fact. 26 To help the authority in this matter parties are also
under an obligation to produce all the necessary evidence and the witnesses and ex-
perts must give respectively true testimony and correct opinion.27
Form, Contents, and Procedure of an Administrative Act 39

(iii) Obligation to Give Information and Advice: The administrative authority is un-
der an obligation to act as a helper in case a citizen due to his ignorance or mistake
runs the risk of being adversely affected in his rights during the course of any ad-
ministrative proceedings. 28 Accordingly, Sect. 25 of the Law requires an administra-
tive authority to advise a party about any statement or clarifications, to correct any
mistakes in his application, or to ask for an application if it is missing. It must in-
form the parties, so far as it is necessary, about their rights and obligations with re-
spect to the administrative proceeding. The advice must be correct and unambigu-
ous. Non-observance of this principle results in the state liability for any loss caused
to the citizen.29

(iv) Right of Hearing: The principle now laid down in Sect. 28 (1) of the Law of Ad-
ministrative Procedure 1976 requires that before taking an administrative action
which interferes in the rights of any party an opportunity be given to that party to
express itself on the facts that are material for the decision. The principle as inter-
preted by the courts and German jurists requires that the parties must be able to as-
sert their rights in the proceedings to the extent that they are afforded every possible
opportunity to express themselves in the proceedings, subject-matter of the pro-
ceedings, the likely decision, the factual basis, the material legal points, and the ma-
terial circumstances that are considered in the exercise of discretion. 3o In the words
of Professor Forsthoff the right of hearing is an integral part of the legal procedure
which cannot be abandoned.31 However, as in common law so also in German law
there is no insistence on oral hearing. As a matter of principle as well as practice the
requirement of hearing is satisfied if the parties are given the opportunity to express
themselves in writing.32
The right of hearing may be denied if the circumstances of a case do not permit
its observance. Particularly it may be dispensed with:
(a) if either in the public interest or due to imminent danger an immediate deci-
sion is required; or
(b) if hearing will hinder the observance of the prescribed time limit; or
(c) if the administrative act rests upon the application of a party and does not
differ from it to his disadvantage; or
(d) if the authority issues a general order or administrative acts of the same type
in large number or wants the act to be issued through automatic device; or
(e) if the administrative measure is to be effected through direct enforcement.
Further, hearing need not be given if it conflicts with a compelling public inter-
est. 33
From the exceptions it appears that the right to hearing is weaker in German law
than in common law. The common law courts absolve the administrative decisions
from the requirement of hearing only in very rare cases. 34

(v) Right to Inspect the Records: The right of hearing cannot be exercised unless the
parties are given an opportunity to look into the records on which the administra-
tive authority relies for its decision. Therefore, Sect. 29 ofthe Law of Administrative
Procedure 1976 obliges the administrative authorities to allow inspection ofthe re-
cords relating to the proceedings in so far as it is necessary for the defence ofthe le-
gal interests of a party. However, the access to records may be denied if it interferes
40 Administrative Powers: Administrative Act

with the orderly exercise of the functions of the authority, or if their inspection will
be harmful to the welfare of the federal or any Land government, or if by law they
are required to be kept secret or confidential such as matters relating to one's per-
sonal or business interests.35 Records include the documents submitted by the op-
posite party, record of evidence, expert opinion, anything expressed by third parties
and by any authorities which are entitled to participate in the procedure. The right
to inspection includes the right to take copies of any documents forming part of the
record.

(vi) Application of Law: An administrative authority carries the personal responsi-

bility for the legality of its action. It is under a duty to take care that the law is correct-
1y applied. Wrong application of clear provisions of law or their application without
consulting the help-materials such as commentaries and judicial decisions in case
any doubt exists about the interpretation of law is a breach of duty and results in
state liability for any injury caused to an individual.36 In case of serious doubts
about the constitutionality of a law the administrative procedure must be suspend-
ed37 and if the doubt is about the effectiveness of a subordinate legislation the mat-
ter must be brought to the notice of the authority which has made that legislation.

(vii) Exclusion of Bias: Like all other natural and juristic persons the administrative
authorities are competent to participate or be parties in the administrative proceed-
ings 38 but it clearly debars an administrative authority to act in an administrative
proceeding if either it is a party or is related to a party or is otherwise interested in
the subject-matter of the proceedings.39 A reasonable apprehension of partiality is
enough to exclude an administrative authority from acting in a proceeding.40

(viii) Notification of Administrative Act: An administrative act must always be noti-

fied to the addressees or the affected persons including the third parties or their au-
thorized agents.41 An administrative act is treated to have been notified on the third
day of its mailing by post unless it is proved that it was received late or was never
received. A public notification of an administrative act need not be given unless it is
required by law. Even the general orders need not be publicly notified unless an in-
dividual notification to all the concerned persons is impracticable. A public notifi-
cation of a written administrative act may be made through the announcement of
the operating part of the act in the manner customarily observed in the concerned
locality. Such announcement should mention the place where one may inspect the
administrative act in full. An administrative act announced through public notifica-
tion becomes operative only after the expiry of two weeks from such announce-
ment. For general orders a different time, but not earlier than the day following the
announcement, may be fixed. 42
From this summary of the procedural aspects of the administrative acts one may
conclude that although the German law does not specifically recognizes any princi-
ples of natural justice but the principles mentioned above cover all that is covered
by those principles and are in certain respects more comprehensive. Particularly, the
principle of inquisitorial procedure read with the requirement of advice and infor-
mation and the obligation to apply law correctly better safeguard the interests of the
individual along with the protection of public interest in expediency.
Effect of an Administrative Act 41

4. Effect of an Administrative Act

An administrative act comes into effect as soon as it is brought to the notice of the
person concerned and continues to remain so until it is reversed by the administra-
tive authority or by the court or loses its effect by the expiry of time or in some other
manner. 43 A void administrative act, however, never comes into effect. 44
An administrative act is considered to be an authoritative pronouncement on
the interpretation and application of law whose reliability must be accepted by
every one in the interest of legal certainty. That, however, does not amount to a pre-
sumption of validity of an administrative act. 45 Subject to certain exceptions men-
tioned below,46 the operation of an administrative act is automatically suspended as
soon as a complaint against it is filed before an administrative authority or a suit for
invalidity is filed in an administrative court. 47
As soon as an administrative act comes into effect it becomes binding not only
on the parties but also on the administrative authority. In this respect it stands in the
position of a judicial decision. It also has a stabilising effect (Bestandskraft) like a
court decision. The stabilising effect may be either formal or material. By formal
stabilising effect means unchallengeability of an administrative act through regular
remedies of complaint or objection before the administrative authority or suit be-
fore the court. It is equivalent to unreviewability. It happens if either the time limit
for legal remedy has expired, or the concerned person waves his right to remedy, or
the remedy does not exist at all, or it has already been exhausted. Material stabilis-
ing effect means res judicata which means the bindingness of the administrative act
on the concerned individual as well as the authority which has taken it. However,
the bindingness on the administrative authority is limited in so far as under certain
conditions discussed below it can abrogate the action either by withdrawal or revo-
cation or by reopening the administrative proceedings. An individual, however,
cannot do so. He can only request the administrative authority to consider the pos-
sibility of exercising its power of withdrawal, revocation or reopening of proceed-
ings. It is in this respect that the effect of an administrative act differs from the effect
of a judicial decision. The courts have no power to withdraw or revoke their deci-
sion or to reopen the proceedings and, therefore, they are as strongly bound by it as
the parties to it.48 Like a court decision an administrative act has factual effect in the
sense that all state authorities and organs must recognize it.
As a matter of rule an administrative act has only prospective effect but it may
have retrospective effect if it is expressly provided by law, or if an administrative act
legally replaces an earlier administrative act from the time of its inception, or if the
administrative authority reverses it on the complaint of the concerned person, or if
the concerned person agrees to the retrospectivity of the act in the admissible man-
ner, or if the contents of a declaratory act refer to the past matters or events. Retro-
spective effect of an administrative act will, however, be void if the law excludes it,
or if the administrative act refers to a period prior to the coming into force of the
law under which it has been taken, or if it commands or prohibits a transaction of
the past. Excepting these cases retrospectivity of an administrative act makes it
voidable but not void.
42 Administrative Powers: Administrative Act

5. Defective Administrative Acts

An administrative act becomes defective if either it is illegal or it is erroneous or in-

expedient. The illegal acts are either void or voidable depending upon the serious-
ness of illegality. Erroneous or inexpedient acts are not illegal and therefore do not
lead to court action. But the void and voidable acts are subject to judicial review.
Let us examine the two kinds of defective administrative acts more closely.

(a) Void and Voidable Acts

The illegality which makes an administrative act void or voidable may arise either
from any defect in the contents of an administrative act, or from the lack of compe-
tence of the administrative authority, or from the non-observance of the form or
procedure. In case of discretionary acts it may also arise from the excess or abuse of
discretion. Since these defects are reviewable by courts and have come to be recog-
nized primarily through judicial decisions we leave their detailed discussion to the
chapters on judicial review. We may, however, mention Sect. 44 of the Law of Ad-
ministrative Procedure 1976 which codifies the law on void administrative acts.
Section 44 divides the void acts into two categories: first, acts which are clearly
and obviously void and their nullity need not be proved or substantiated by any ad~
ditional proof; second, those acts whose nullity needs to be proved. The acts of the
first category are specified in clause (2) of Sect. 44. An act falls within this category
(i) if it is expressed in writing but does not disclose the authority which has taken
it;
(ii) if under the law it can be taken only by the delivery of a document but does
not satisfy the requirement of form for that document;
(iii) if it relates to immovable property or a right attached to a place and is taken
by an authority which lacks territorial jurisdiction with respect to the place of the
property or right;
(iv) if for factual reasons nobody can perform it;
(v) if it requires the commission of an act which may result in punishment or
fine; and
(vi) if it is contrary to good morals.
The acts of the second category are not mentioned specifically but a general cri-
terion has been laid down in clause (1) of Sect. 44. The criterion is that if an adminis-
trative act suffers from a specially grave defect which on the appreciation of the sur-
rounding circumstances is apparent or obvious, then it is null and void. The criteri-
on emphasizes on the gravity of the defect or illegality and its obviousness. Normal-
ly such defects would be similar to those mentioned above and have been discussed
at the appropriate place in the chapter on judicial review.
A void administrative act is no act. It is a complete nullity, a still-born act which
never comes into effect. 49 It may be completely ignored by the concerned individu-
al, third parties, other administrative authorities, and also by the authority which
has taken it. Anyone at any time in any matter may assert the nullity of the act. It
means that the nullity of an administrative act need not be asserted in any time-
bound proceedings for the invalidity of an administrative act. It may be asserted
Defective Administrative Acts 43

even after the expiry of time in a declaratory suit or in any incidental proceedings.
As a matter of fact the Law on Administrative Courts 1960 does not lay down any
time limit for the declaration of nullity of an administrative act. Again, in strict
sense only a declaratory suit and not a suit for invalidity can be filed against the
void acts and that too only to avoid the risk which an individual might incur
through his wrong assessment of the nullity of an act. Moreover, an individual need
not approach a court. He can point out the nullity of an act to the authority which
has taken it. The authority may declare the nullity of an administrative act of its own
and is under an obligation to do so on an application of a person who has a legal
interest in such a declaration. 50
Common law also recognizes the distinction between the void and voidable
acts. But the distinction does not carry so clear consequences as it does in German
law. Even Professor Wade, who has championed the cause of recognizing all ultra
vires administrative acts including the ones taken in violation of the principles of
natural justice void, also admits that "'Void' is ... meaningless in any absolute
sense."51 It is always relative and requires the right remedy by the right person
through the right proceedings within the time limit prescribed for such remedy. 'The
order may be hypothetically a nullity, but the court may refuse to quash it because
of the plaintiff's lack of standing, because he does not deserve a discretionary rem-
edy, because he has waived his rights or for some other legal reason'. 52 The Supreme
Court of India, after clearly recognizing in one case that administrative acts infring-
ing fundamental rights if taken in violation of the principles of natural justice are
void ab initio,53 did not apply the same standard in another case. 54 Thus the distinc-
tion between void and voidable has almost no practical implications in common
law except when the question of reviewability of an administrative decision taken
within jurisdiction against which no appeal is provided or the affected person fails
to pursue the appeal arises. 55
To give maximum effect to the sovereign intent German law also applies the
doctrine of severability to partly void acts of which we find no reference in common
law as regards administrative acts although it is applied in relation to legislation.
According to Sect.44(4) ofthe Law of Administrative Procedure 1976 an adminis-
trative act which is partly void becomes void in full if the void part is so important
that without it the administrative authority would have not taken the administrative
act. Whether the administrative authority would have done so is decided on the ba-
sis of objective criteria of the legal provisions under which the act is taken and not
on the subjective will of the authority.

(b) Erroneous and Inexpedient Acts

An administrative act is erroneous if the inconsistency between what the authority

intended and what has appeared in the act can be known without anything more or
is apparent in the act. 56 Such is the case with typing and counting errors, errors
through automation or some erroneous omission. There may be other errors of the
same type which the law considers immaterial such as the use of a wrong expression
which cannot be covered within the intended legal sense of the administrative act,
or an obvious wrong identification of a person or subject-matter, or omission of the
44 Administrative Powers: Administrative Act

seal or signature on the copy of the act sent to the concerned person so long as such
omission does not amount to an illegality, or omission of some other procedural or
formal requirement which is neither material for the act nor amounts to any other
legal defect. Acts inconsistent with administrative directions are also only erroneous
unless the direction has become a basis for an established practice in which case it
becomes legally and constitutionally binding under the principle of equality. Er-
roneous acts may be corrected by the concerned administrative authority at any
time without the observance of any form or procedure. 57
An inexpedient or inappropriate act is one which does not fully meet the object
of the law although it is legally permissible and is also not unreasonable. Among
such acts are those which require the application of more suitable means or which
are not in consonance with the departmental regulations or provide the possibility
of better application of discretion. 58 A person affected by such an act may ask for its
revocation or modification formally through an objection before the administrative
authority or informally by complaining to the concerned authority or the supervis-
ing authority.

6. Validation of Illegal Administrative Acts

German law recognizes and now the Law of Administrative Procedure 1976 codi-
fies some methods through which an illegal (void or voidable) administrative act
may be sustained or kept alive. Two of these methods are curing the illegality and
the conversion of an administrative act.

(aJ Curing of Illegality

As a general rule, which now finds its expression in Sect. 46 of the Law of Adminis-
trative Procedure 1976 an administrative act is not challengeable for the non-ob-
servance of a procedural or formal requirement if such observance would have
made no difference in the decision. However, such non-observance is not pardon-
able if it results in the nullity of an act. Again, Sect. 45 provides that unless it leads to
nullity an illegality arising from the (i) non-presentation of an application required
before the taking of an act by the person concerned; (ii) non-giving of reasons or
hearing; and (iii) non-participation of a committee or of any other authority whose
participation was required for the taking of the act, may be cured if the required ap-
plication is presented or the reasons or hearing are given or the participation of the
committee or the authority is obtained after the taking of the act but before the mat-
ter goes to the court. In addition to these general provisions a law may specify other
cases in which an invalidity of an act may be cured. As is discussed below, common
law is not so clear on the procedural and formal requirements although it is insisted
that non-observance of hearing should result in nullity and cannot be cured subse-
quently.59
Withdrawal and Revocation of Administrative Acts 45

(b) Conversion ofAdministrative Acts

According to Sect.47 of the Law of Administrative Procedure 1976 an illegal ad-

ministrative act, including a null and void act, may be converted into another ad-
ministrative act by changing its meaning through reinterpretation if the new act (i)
has the same object or purpose; (ii) could be taken by the authority in the prescribed
form, and (iii) fulfils the conditions for its taking. Such conversion, however, is not
possible if -
(i) the administrative act into which the invalid act is to be converted conflicts
with the discernible intention of the authority that took it; or
(ii) the legal consequences of the converted act will be more unfavourable to the
concerned person than the consequences of the original act; or
(iii) the withdrawal of the invalid act is not permissible under the law.
Further, a non-discretionary act cannot be converted into a discretionary act.
The Law of 1976 does not prescribe the procedure for conversion but under the
existing practice and precedents, conversion can be done either by the authority
which took the administrative act, or by the higher authority on an objection by the
affected person, or even by the court during the pendency of a suit.
In addition to these two methods an illegal administrative act may be sustained
through the techniques well known to common law also such as waiver of legal rem-
edy by the affected person, non-challenge of the act within the prescribed time in
the proper proceedings, rejection of the challenge to the validity of the act, removal
of uncertainty in the act during the objection proceedings before the authority, ret-
rospective changes in the law under which the act was taken, or through retrospec-
tive validation of an act by law.

7. Withdrawal and Revocation of Administrative Acts

An administrative act may be abrogated either in the legal proceedings for setting it
aside by the authority which took it through its withdrawal (Rucknahme) or revoca-
tion (Widerruj). Generally, withdrawal applies to illegal acts while revocation ap-
plies to valid acts. However withdrawal may also be resorted with respect to valid
acts on ground of expediency and equity. In case of withdrawal the administrative
authority has to make a choice between illegality and certainty, while in case of re-
vocation it has to see whether the legal or factual basis for the administrative act has
changed requiring its revocation. The act of withdrawal or revocation is also an ad-
ministrative act and is, therefore, subject to all those legal provisions which are ap-
plicable to an original act. An illegal withdrawal or revocation becomes effective
like an original administrative act and one must resort to the appropriate remedy
against it. Like a void administrative act a void withdrawal or revocation also never
comes into effect.
The law on withdrawal and revocation, as developed through courts and juristic
writings, has now been codified respectively in Sects.48 and 49 of the Law of Ad-
ministrative Procedure 1976 and may be discussed with reference to those provi-
sions.
46 Administrative Powers: Administrative Act

(a) Withdrawal

An administrative act may be withdrawn even after it has become unchallengeable.

The withdrawal may operate partly or fully, retrospectively or prospectively. No re-
strictions apply to the withdrawal of a regulatory act because it favours an individu-
al, but the withdrawal of a beneficial act operates to the disadvantage of an individ-
ual and therefore it can be withdrawn only subject to certain legal limitations. For
the purposes of withdrawal of beneficial acts Sect.48 distinguishes between those
acts which grant or are a pre-condition for a grant of a solitary or recurring payment
in cash or a divisible payment in kind and the other beneficial acts. The former acts
cannot be withdrawn if the beneficiary has relied upon the administrative act and
on balancing with the public interests his reliance deserves protection. In balancing
the interests the administrative authority has to consider the consequences of with-
drawal to the beneficiary; the consequences of non-withdrawal in general and to
the third parties; the kind and form of the act; the severity of illegality; duration of
the act; the extent to and the time from which the act has to be withdrawn, etc.
However, as a rule reliance of the beneficiary is to be protected if he has either con-
sumed the granted benefit as is always the presumption in case of maintenance
grant such as pension, scholarship, etc.,60 or has effected a disposition which he can-
not revoke except on unreasonable detriment to him.
As regards the latter kind of beneficial acts, they can be withdrawn subject to the
making up of the loss to property suffered by the beneficiary in reliance of the act if
on balancing with the public interests his reliance deserved protection.
In no case a beneficiary's reliance on an administrative act deserves protection if
either he has obtained the administrative act through malicious deceit, threat, or
bribary; or on the basis of substantially incorrect or incomplete information; or if
he knew the illegality of the act or could have known it but for his gross negligence.
In these cases the administrative authority may not only withdraw the administra-
tive act but may also ask the beneficiary of the first type of beneficial acts to refund
the payments made to him and in case of second type of beneficial acts it may re-
fuse to pay for the losses suffered by the beneficiary.
An administrative act may be withdrawn within one year of the knowledge of
the facts that justify such withdrawal. No time limit is, however, applicable to the
withdrawal of the acts obtained through deceit, threat or bribery.

(b) Revocation

For purposes of revocation also a distinction is drawn between the regulatory and
beneficial acts for the same reasons as in case of withdrawal. A regulatory act can be
revoked at the discretion of the administrative authority even after it has become
unchallengeable. The authority may revoke either the whole or only part of the ad-
ministrative act but it can do so only prospectively. No revocation is permissible if
the authority wants to issue a new act with the same contents or on the same subject-
matter whether on the same or different grounds. Nor is it permissible if it is other-
wise not permissible. As, for example, when it is prohibited by or conflicts with any
legal principles. Provision for revocation is based on the assumption that the legal
Reopening of Proceedings 47

or factual basis for an administrative act has changed to the extent that it could not
have been issued in the new circumstances. Therefore, revocation just for the pur-
pose of repeating the revoked act would be bad.
A beneficial act may also be revoked partly or wholly with prospective effect but
only in the following cases:
(i) if revocation is permitted under the law or is provided in the administrative
act; or
(ii) if the beneficial act is coupled with a direction which the beneficiary has not
executed in time; or
(iii) if on the basis of the facts known subsequently the authority would have not
been competent to take the act; or
(iv) if its non-revocation endangers public interest; or
(v) if under the changed law the authority would not be competent to take the
act to the extent the beneficiary has not yet utilized the benefit or received any pay-
ments and the non-revocation endangers the public interest; or
(vi) in order to prevent or eliminate serious injury to public welfare.
In the last three cases the administrative authority must compensate the benefi-
ciary for any loss or injury to his property suffered due to his reliance on the admin-
istrative act if such reliance deserves protection. Any dispute about compensation is
decided by the ordinary courts and not the administrative courts.
Revocation, like withdrawal, can be made within one year of the knowledge of
the facts justifying it.
An additional provision in Sect. 50 of the Law of Administrative Procedure 1976
provides that beneficial acts affecting third parties may be withdrawn or revoked
during the pendency of an objection before an administrative authority against the
validity of such act or during the pendency of a suit for invalidity of such an act
even if no grounds for the withdrawal or revocation provided in Sects.48 and 49
exist. In such a case beneficiary cannot plead his reliance on the administrative act
because it is already under challenge.

8. Reopening of Proceedings

In addition to the provisions on revocation and withdrawal Sect. 51 of the Law of

Administrative Procedure 1976 provides for the reopening of proceedings after an
administrative act has become unchallengeable. On the application of the affected
person for the abrogation or amendment of an unchallengeable act the administra-
tive authority has to decide whether (i) the factual or legal basis of an administrative
act has subsequently changed in favour of the applicant; or (ii) the availability of
new evidence requires a decision favourable to the applicant; or (iii) the corre-
sponding ground for the resumption of court proceedings exist under Sect. 58 of the
Code of Civil Procedure 1950. An application under this provision is admissible on-
ly if the affected person was excluded from availing the regular legal remedy with-
out gross negligence on his part. The application must be made within three months
from the knowledge of the grounds of the reopening of the procedure.
It has been suggested that the provisions of Sect. 51 are not exhaustive and the
grounds for reopening of the procedure as developed by the courts continue to op-
48 Administrative Powers: Administrative Act

erate so far as they do not conflict with the existing law. For example, the affected
person may request the authority to exercise its discretion on the basis of new argu-
ments and materials which he puts forward. The authority would be under an obli-
gation to do so if it has done so in similar other cases; or if the preservation of the
administrative act will be plainly unsupportable, or insistence on it will be contrary
to good morals and good faith, or if the judicial decision on which the administra-
tive authority had relied for taking the act has been reversed or overruled.61

References

1 See decision of25 Feb 1969,31 BVerwGE 301, 304 where the Federal Administrative Court has
characterized it as "the central concept of the administrative law and administrative procedure."
2 Mayer 0: Deutsches Verwaltungsrecht. vol i, 95 (1895).
3 This is implied in ss 37 (4) and 39(2) of the Law of Administrative Procedure (VwVfG)
4 See decision of 12 Oct 1962, 15 BVerwGE 59 and 63.
5 Ule C: Verwaltungsprozeftrecht. 146 (7th ed, 1978).
6 Decision of 11 May 62, 14 BVerwGE 151, 152, and of 29 Dec. 1969, 34 BVerwGE 353, 354.
7 Decision of 30 Jan 1974,44 BVerwGE 333, 334f.
8 See below, p 68 ff.
9 See decisions of 8 March 1962, 14 BVerwGE 73, and of 23 April 1969, 25 BVerwGE 352.
lOSee, Bachof 0: German Administrative Law with Special Reference to the Latest Developments
in the System of Legal Protection,2 Int'I & Comp L Q 368,376 (1953).
11 Erichsen H-U, Martens W: Das Verwaltungshandeln. in Erichsen H-U, Martens W (eds): Allge-
meines Verwaltungsrecht. 156 (4th ed, 1979).
12 Decision of28 Feb 1961, 12 BVerwGE 87.
13 See Ule, above, n 5 at 151 ff. Also below, p 59f.
14 Decision of 20 March 1964, 18 BVerwGE 154.
15 Decision of 31 March 1964, 18 BVerwGE 40.
16 Decision of 20 May 1980, 60 BVerwG E 144.
17 VwVfG s 37(2)-(4).
18 Id. s 37(1).
19 Id. s 39(1).
20 Id. s 39(2).
21 See Singh MP: Duty to Give Reasons for Quasi-Judicial and Administrative Decisions, 21 J Ind
L Inst45ff. (1979). On the requirement of reasons in the United States see USC ss. 555(e) and
557(c) which impose a general obligation on the administrative agencies to give reasons.
22 VwVfG s. 63(1).
23 Id. s 10.
24 Id. s 22.
25 Id. s 24.
26 Id. s 26(1).
27 Id. s 26(2) and (3).
28 Decisions of 13 Jan 1965,20 BVerwGE 136; of 16 Feb 1967,26 BVerwGE 201; and of 19 June
1968, 30 BVerwGE 46.
29 Decision of 8 Jan 1976 [1977} DVBI 576 (BGH).
30 Badura P: Das Verwaltungsver/ahren in Erichsen, Martens (eds) above, n 11 at 291. See also de-
cisions of12 Nov 1975,49 BVerwGE348; andofl Oct 1963, 80 DVBI 26,28 (1965) BVerwG.
31 Forsthoff E: Lehrbuch des Verwaltungsrechts I, 235 (10th ed, 1973).
32 Decision of 14 Jan 1964,20 BVerwGE 160, 166.
33 VwVfG s. 28(2) and (3).
34 See Wade HWR: Administrative Law. 471 ff. (5th ed., 1982).
References 49

35 VwVfG s 29. Also s 30 which provides that the parties have a right to ask for keeping the infor-
mation affecting their personal or business interest secret.
36 Decision of 23 March 1959, 30 BGHZ 19.
37 Decision of21 Feb 1961, 12 BVerwGE 180.
38 VwVfG s 11.
39 Id. s 20.
40 Id. s 21.
41 Id. s 41.
42 Ibid.
43 Id. s 43(1) and (2).
44 Id, s 43(3).
45 WolffHJ & BachofO: Verwaltungsrecht 1.414 (9th ed., 1974). Compare, Bachof, above, n 10 at
372.
46 Below, p 133 f.
47 VwGO, s 80(1).
48 This is subject to what is stated below at p 135. On the question of res judicata in English law see
Wade, above, n 34 at 239 ff.
49 VwVfG s 43(3).
50 Id. s 43(5).
51 Wade, above, n 34 at 314.
52 Ibid.
53 Nawabkhan v State ofGujrat. AIR 1974 SC 1471.
54 Maneka Gandhiv Union of India. AIR 1978 SC 597, Also SL Kapoor v Jagmohan, AIR 1981 SC
136 and Swadeshi Cotton Mills v Union of India. AIR 1981 SC 818.
55 Ujjam Bai v State of UP, AIR 1962 SC 1621.
56 Decision of 12 July 1972, 40 BVerwGE 212, 216.
57 VwVfG s 42.
58 Wolff, Bachof: above, n 45 at 441.
59 See Wade, above, n 34 at 491. But the Indian Supreme Court's decisions cited in n 54 above indi-
cate.that a post-decisional hearing may validate an administrative action. For a comment on this
approach see Singh MP, Administrative Action in Violation of Natural Justice Affecting Fun-
damental Rights: Void or Voidable? [1979] 2 SCC (1) 1.
60 Decision of24 April 1959, 8 BVerwGE 261, 269; and of 24 July 1964, 19 BVerwGE 188, 191.
61 See Maurer H: Allgemeines Verwaltungsrecht, 227 (1980). Compare, decision of 25 May 1981
[1981] NJW, 2959 (BVerwG) where the Federal Administrative Court has held that basically an
administrative authority is under no obligation to reopen the proceedings if the administrative
act has become unlawful due to a subsequent higher judicial decision. For a critique of this de-
cision see Stelkens P: Die A:nderung hiichstrichterlicher Rechtsprechung als nachtriigliche A:nde-
rung der Rechtslage is des 51 I Nr 1 VwVfG, [1982] NVwZ 492.
Chapter 4
Administrative Powers: Contracts, Private-Law
Acts, Real Acts, and Planning

A. Administrative Contracts

1. Nature of Administrative Contracts

Although an administrative act is the most characteristic and frequent mode of ex-
ercising the administrative powers and functions in German law, quite often the ad-
ministration also acts through contracts. Contracts into which the administration
may enter may be, as in France, either private or public. Private contracts stand on
the same footing as contracts between two private persons. They are regulated by
the German Civil Code and disputes with respect to them are settled by the ordi-
nary courts. Public or administrative contracts are the subject-matter of administra-
tive law and any disputes with respect to them lie within the jurisdiction of the ad-
ministrative courts. The law on administrative contracts is still in the developing
stage but the basic rules governing them have been now laid down in the Law of
Administrative Procedure 1976 supplemented by the special Federal and Land
laws, judicial precedents, and the German Civil Code.
Since, unlike the common-law countries such as England or India, the private
and public contracts are governed by different set of rules and the remedy for their
breach also lies in different set of courts it is important to draw and understand the
distinction between them. The distinction depends upon the subject-matter of a
contract. An administrative contract establishes, modifies or revokes a legal rela-
tionship in the area of public law while a private contract does the same thing in the
area of private law. Accordingly, if a legal relationship which is established, modifi-
ed or revoked through a contract may be assigned to public law then it is an admin-
istrative or public contract. 1 An administrative contract, however, is possible even
between two private persons if a law so provides. 2
An administrative contract may be either a co-ordinate or a subordinate con-
tract. Co-ordinate administrative contracts are those which are made between the
administrative authorities of equal or almost equal status or rank or between the pri-
vate persons with respect to public rights and duties. Such, for example, are the con-
tracts between two or more administrative authorities either for the establishment of
a partnership or for the change of municipal limits, or for financing a school, or for
the maintenance of common bridges or roads, or a contract between two private
persons for demarcating of hunting areas or for the maintenance of flow of water,
etc. As a matter of fact co-ordinate contracts relate to those relationships which
could not be regulated by an administrative act.
A subordinate contract is made between parties who stand in the position of su-
perior and subordinate, i. e., the administration on one side and a citizen or any oth-
Requirement of Legality 51

er subordinate legal person on the other. It may be made either under an express
statutory authority or in due exercise of discretion where a unilateral measure in the
form of an administrative act is not necessary for the regulation of a matter. Thus
through a subordinate contract the administrative authority does what it would
have otherwise done by an administrative act. Such are the contracts, for example,
for the grant of permission to construct, for the refund of money paid to a civil ser-
vant for pursuing further studies, for the payment of costs for a substitute perfor-
mance, for the payment of subventions, for the use of a public institution or esta-
blishment, etc.
Subordinate contracts are further divided into compromise contracts and recip-
rocal contracts. A compromise contract is made to remove a factual or legal uncer-
tainty on a matter through mutual yielding of the parties if the administrative au-
thority in its discretion holds that the making of the contract is expedient or proper
to remove the uncertainty. Through a reciprocal contract parties to the contract
agree to carry out reciprocal obligations. The administrative authority puts itself un-
der an obligation to provide a counter-benfit or service if the benefit or service pro-
vided by the citizen conforms with a definite purpose agreed upon in the contract,
fulfils the public functions, is reasonable, and has a correspondence with the benefit
conferred by the administrative authority.
Non-existence of any of these conditions results in the nullity of a reciprocal
contract. The public services or benefits cannot be made dependent on counter-ben-
efits from a citizen except under strict conditions laid down in law. The principle of
Koppe[ungsverbot 3 applies as much to the administrative contracts as to the admin-
istrative acts.4 Further, if a person has a right to a benefit or service from the admin-
istration then a counterbenefit or service on his part in favour of the administration
is admissible only if it is specifically provided in law.
There is no general requirement about the form of an administrative contract.
The only requirement is that unless the law provides some other form it must be in
writing. If a contract interferes with the rights of third parties then the consent of
such party must be obtained in writing. Similarly, permission, consent or approval
of the higher administrative authority must be obtained for a contract if such per-
mission, consent or approval would have been necessary had the administrative au-
thority taken an administrative act instead of making a contract.

2. Requirement of Legality

The freedom and autonomy which the parties to a private contract enjoy with re-
spect to the contents of a contract are not available to the parties to the administra-
tive contracts. There is a danger of commercialization of administrative services if
the parties to an administrative contract are given the same freedom which the par-
ties to a private contract have. Some limits have to be observed so that an adminis-
trative contract does not turn into a pure bargaining on the question of reciprocal
benefits. The requirement of legality brings in such limits. Through contract the ad-
ministration cannot enlarge its powers and do things which otherwise it is not au-
thorized to do. Therefore, like all other acts of the administration an administrative
contract must also have its support in law and should not be inconsistent with any
52 Administrative Powers

legal provision. It is not necessary that the power to contract must be expressly con-
ferred by law but it must have its basis in law. Law in this context does not mean on-
ly statutes but also the Basic Law, administrative legislation, byelaws, customary
laws as well as the general principles of law. 5 A law need not expressly prohibit a
contract; it is enough if such prohibition results from the object and meaning of
such law. 6 Thus, for example, contract for the use of police for purposes not covered
by law7, or for exemption from taxes under conditions not contemplated by lawS, or
for conferring a benefit not falling within the law are not permissible.9 So also are
the contracts in violation of the fundamental right to equality or the right to free-
dom of occupation. 10 A contract is impliedly prohibited if a law requires that any of
its provisions should be implemented either through a written direction or order of
the administrative authority or through an administrative act, or subordinate legis-
lation or a byelaw. For example, appointment of a civil servant, or employment of a
person in defence services, or imposition of duties can be done only through an ad-
ministrative act and not through contract. 11 The requirement of legality is as much
applicable to the contracts made in the exercise of discretionary powers as in case of
contracts made in the exercise of ministerial or mandatory powers. 12
The requirement of legality may be relaxed only to the extent an individual
is entitled to waive his rights. Waiver of rights would be permissible only if a le-
gal right has been created for the benefit of an individual and stands at his ex-
clusive disposal and the waiver does not violate the principle of Koppelungsver-
hotY

3. Void Contracts

Like an administrative act an administrative contract may be valid, voidable or

void. A voidable contract is effective like a voidable administrative act till it is
avoided by any of the parties to the contract. A void contract like a void administra-
tive act is, however, void ab initio and has no legal effect whatsoever. Any adminis-
trative contract whether co-ordinate or subordinate is void if it would be void had it
been a private contract under the civil law, i. e., if -
(i) any of the parties to the contract is incompetent to contract because of its mi-
nority or insanity; or
(ii) if a party holds a mental reservation or lacks seriousness, i. e., either keeps so-
mething secret about his intent, or the expression of will is sham or if he does not
make a serious expression of will; or
(iii) it is in violation of the form required by law; or
(iv) it violates a legal prohibition; or
(v) it is inconsistent with good morals; or
(vi) it aims at an impossible benefit or service which from an objective standard
applied at the time of making the contract no one could physically or legally carry
out;14 or
(vii) it is made under mistake of the facts on which the contract is based; or
(viii) a party to the contract challenges that his consent was obtained under mis-
take, or wrong communication or malicious deception, or threat; or
(ix) it is made by a representative who had no proper authority to do so.
Modification and Rescission of Administrative Contracts 53

In addition to these general grounds applicable to all contracts a subordinate

contract will be void if -
(i) an administrative act with the corresponding contents would be void;
(ii) an administrative act with the same contents would be illegal on grounds
other than of procedure and form and such illegality was known to the parties (this
is to prevent a deliberate circumvention oflaw by the parties); or
(iii) the conditions for making a compromise contract are not fulfilled; or
(iv) in a reciprocal contract the authority promises a consideration not permissi-
ble under such contract.
Partial nullity of a contract would make the entire contract null and void if the
contract could have not been made without the void part. Since the void contracts
never come into force neither the parties nor anyone else can rely on them. How-
ever, if in reliance of a void contract any party has performed its part of the contract
it will be entitled to compensation.

4. Modification and Rescission of Administrative Contracts

Mter the making of an administrative contract the circumstances or conditions un-

der which the contract was made may so materially change that the performance of
the contract becomes unreasonable or impossible for anyone of the parties to the
contract. To meet such situation common law applies the doctrine of frustration
which results in the determination of the contract. The French law has evolved the
principle of imprevision under which the administration may compel the other party
to continue to carry out its part of the contract subject to compensation for any loss
that it suffers in the process. German law does not strictly follow any of these mod-
els although one may notice in it some aspects of both. In the first instance it pro-
vides for the modification of the contract according to the changed conditions and
when such modification fails the contract may be rescinded. There is no compul-
sion, as is in the French law, that the contract must be performed if the administra-
tion considers such performance necessary in the public interest. Nor does the Ger-
man law give a general power to the administration, as the French law does, to mod-
ify the terms of the contract whenever it finds it necessary in the public interest. 15
The conditions for modification are strictly governed by law.
A party to the contract for whom the terms of the contract have become unrea-
sonable may ask the other party to modify the contract and if the other party does
not agree it may go to an administrative court praying for such modification. The
prerequisites for modification are that the material conditions for the continuation
of the contract have changed aflerits making, the changes must be those which were
not taken into account by the parties at the time of making the contract, and judged
objectively the changes are so substantial that they would make it unacceptable that
the parties would have made the contract with the same contents had they known
the changes at the time of making the contract. 16 The change may be either factual
such as change in price or cost level, change in technical, scientific or medical
know-how or it may be a legal change such as coming into force of a new legislation
or judicial decision or administrative practice so far as they have a direct bearing on
the performance of the contract. Second, the change must be so material that the
54 Administrative Powers

parties cannot be expected to stick to the original contractY It means sticking to the
original contract would amount to the contravention of the principle of good faith.
In the Garrison Case upholding the validity of the garrison contracts made between
the German Reich and different cities just before the World War II with the object
of boosting the economy of the cities under which cities agreed to exempt the Reich
from certain taxes the Nordrhein-Westfalen higher administrative court has held
that the cities should stick to the contract because replacement of Reich and its ar-
my by the Federal Republic of Germany and its army does not amount to any mate-
rial change. The cities could still avail those advantages which they had expected at
the time of making the contract. 18
Thus as regards the rescission of an administrative contract either the parties
may agree to it or in case they fail the administrative court may order its rescission
on an appropriate suit by any of the parties if a contract needs modification and
such modification is either not possible or would be unreasonable for one of the
parties. A final and unilateral power of rescinding a contract at any time is given to
the administrative authority if such rescission is necessary to prevent or eliminate a
serious harm to the general welfare of the community. This power of the administra-
tion to set aside the administrative contracts in the public interest which has been
recognized or exercised in common law under the dubious doctrines of executive
necessity, estoppel, foreign affairs or unfettering of discretionary powers by con-
tract has been expressly and clearly recognized in German law. Moreover, in com-
mon law the contractor may have no remedy in damages if a contract is rescinded
but in German law he is fully entitled to damages. To further safeguard the interests
of the contractor German law requires that unless otherwise provided in law a res-
cission of a contract must be in writing and supported with reasons. 19

5. Enforcement of Contracts

As a general rule a contract has to be enforced only through a suit in an appropriate

administrative court if one of the parties fails to perform its part of the contract.
Law recognizes no general power with the administration to enforce the perfor-
mance of a contract directly. However, parties to a subordinate contract may agree
or submit themselves to an immediate and direct enforcement of the contract. In
that case not only the individual but also the administrative authority has to agree
for such enforcement. However, for such an agreement it is necessary that the ad-
ministrative authority must be represented through its director or head or through a
representative who holds the qualifications of a judge and it must be approved by
the supervisory authority. Further details on the direct enforcement of contracts are
given in the Law on Administrative Enforcement 1953 and the Law of Administra-
tive Courts of 1960 which need not be mentioned here.
Administering their affairs through contracts is a universal and a growing phe-
nomenon with all the modern states.20 It is also universally recognized that the state
cannot be equated with private persons in all matters and accordingly all contracts
between the state and an individual can also not be equated with contracts between
two individuals. State may and does make certain contracts as state and as such it
cannot be compelled to perform or be bound by a contract which conflicts with the
Administrative Private-Law Acts 55

public interest. In that case it must have the privilege to override or set aside the
contract. This privilege of the state is recognized as much in common law as in Ger-
man law. But beyond laying down some subsidiary procedural rules with respect to
the contracts of the state or public authorities the common law does not clearly tell
which contracts or class of contracts may be overridden in the public interest. 21 Nor
does it provide for an appropriate remedy to the other contracting party for any loss
arising from the termination of the contract. Some recent efforts on the part of the
Indian Supreme Court to control the administration in the exercise of its contrac-
tual power neither touch upon the problem nor provide any satisfactory solution. 22
In contrast the German law, like the French, by drawing a distinction between the
private and administrative contracts provide a clear criterion as to which contracts
the state may override or terminate in the public interest and also provides sufficient
protection to the other contracting party by recognizing the right of the individual to
claim compensation for the loss arising from such termination. In its insistence on
legality and protection of the individual against administrative action in contractual
matters German law seems to be ahead of French law. Perhaps it does not allow
that measure of control to the state on the administrative contracts as does the
French law.
It is not easy to say how far common law may usefully import the German no-
tion of administrative contracts but a recognition of some criterion to distinguish
those contracts with respect to which the state may enjoy its privileged position
from the rest and a provision for compensation to the individual in case the state ex-
ercises its privilege will go a long way in the direction of certainty and fairness.

B. Administrative Private-Law Acts

Normally, as we have seen, the administration operates itself through public-law

powers but like any other person it may also avail the private law and its instrumen-
talities to perform its functions. It can enter into private contracts for providing
some services, getting some work done, procuring some goods or creating tenancy.
It can also own and possess property, have usufructuary rights and form companies
or partnerships. Quite often private law is availed of by the administration either be-
cause the public law has no provision to achieve an objective, or the preconditions
for the exercise of public law power are not fulfilled, or because the private law
gives wider room for action. Moreover, through companies and partnerships the ad-
ministration may attract and employ private capital and reduce the influence of
party politics. The important question in this respect, however, is whether the ad-
ministration stands in the same position as any other person when it performs its
functions through private law. The commonly accepted view is that the administra-
tion does not stand in the position of a private person even when it operates through
private law. The reason is that the administrative activities even in private law form
are part of public administration which serves the common interests of the commu-
nity and, therefore, depending upon the legal basis and the purpose to be achieved
they should be subject to reasonable and necessary restrictions and privileges.
56 Administrative Powers

A distinction is drawn between pure and simple fiscal activities of the adminis-
tration and those activities through which it carries out a public function. If an ad-
ministrative authority is carrying out or participating in a purely commercial and
trading activity in order to save, augment or dispose of its assets then it is perform-
ing a fiscal function which should be regulated in form as well as in substance by
private law. Unless with respect to such activities the law provides otherwise the ad-
ministrative authority is subject to the same rights and obligations as any other per-
son. Thus the Federal Court of Justice has held that a contract between a state asso-
ciation and a retail dealer for the supply of certain surgical goods is a private law
contract and a fiscal activity of the association governed by the contract to which
without anything more the restrictions that apply when the administration performs
the public law functions will not be applicable. 23 It is argued that the fiscal adminis-
tration does not exercise the 'executive power' within the meaning of article 1(3) of
the Basic Law24 because it is not acting as the occupier of sovereign power and not
availing the sovereign means. Accordingly, it is free from the restrictions imposed
by the fundamental rights and enjoys the same autonomy and freedom as any other
person unless such autonomy or freedom has been restricted by law. 25 The fiscal ad-
ministration is subject to the sovereign power and public law in the same manner as
any other person. Thus it must operate subject to the industrial and trade law, plan-
ning law, law relating to public order, laws relating to the entry into or doing of any
occupation, taxation laws, etc., in the same way as would be any other person and
must avail the same legal remedies which are available to private persons. 26
Outside the fiscal activities, if the administration uses the private law for pursu-
ing the public law functions such as provisions for social services or social help then
its activities do not enjoy the autonomy and freedom of private law and are subject
to some public law restrictions. This applies as much to the provisions for transport,
water, gas, electricity, sewage and removal of garbage as to the grant of subventions,
securities and other payments not made through an administrative act. It would
make no difference whether the state carries these activities directly or through the
agency of some one. In this area, apart from any other restrictions imposed by law,
the administration is subject to the fundamental rights, particularly the right to free-
dom, equality and the principle of proportionality or reasonableness because it is
exercising the executive power within the meaning of article 1(3) of the Basic Law.
Thus a grant of land by the state for the construction of houses under a contract of
tenancy is subject to the general principle of equality.27 Similarly, by forming a pub-
lic limited company for providing city transport service a city administration cannot
escape the requirement of equal treatment in the matter of giving concessional facil-
ities to the school children. 28 Thus in the sphere of public functions the administra-
tion cannot be allowed to create special power and control relationships by resort-
ing to private law. These limitations on the activities of the administration vis-a-vis
an individual operate even in the absence of an individual contract or even when
free consent and capacity to contract is missing or there is a mistake about it.
Some German scholars find the distinction between the fiscal and public func-
tions ofthe administration artificial because there are no clearly defined public and
private functions. Outside strictly governmental functions there are no public func-
tions which cannot be performed by private persons and vice versa. So even when
the state or administration performs the so called fiscal functions which may be per-
Administrative Real Acts 57

formed by private persons it is still functioning as state and, therefore, such func-
tions must also fall within the reach of executive power under article 1(3) of the Ba-
sic Law which intends to discipline all state power by subjecting it to the fundamen-
tal rights. 29
Although common law does not emphasize on the distinction whether the ad-
ministration utilizes the public law or the private law for performing its functions, in
effect it excludes those functions of the administration from discussion as a subject-
matter of administrative law which in German law will be called the administrative
functions under private law. In common law, except for some privileges which the
administration enjoys as a contracting party, contracts with the administration are
not treated differently from contracts between the private parties. Moreover, the ad-
ministration in India and England has been operating in multifarious fields through
the statutory and nonstatutory corporations which by and large have stood outside
the judicial control on principles of administrative law. Only recently the Supreme
Court of India has accepted that the administration even when it acts within the
sphere of private law such as a contract it has to act reasonably and fairly as re-
quired by the equal protection guarantee under the Constitution. 3o By giving a libe-
ral interpretation to the concept of state in article 12 of the Constitution it has also
subjected the corporations and other podies or agencies, whether statutory or non-
statutory, to the fundamental rights if they are acting as an instrumentality or agency
of the government or are performing public functions. 3 ! Support for such a develop-
ment may be clearly drawn from German law which has already recognized subjec-
tion of all kinds of executive power to the basic rights.

C. Administrative Real Acts

Administrative real acts or acts in fact are those acts of the administrative authori-
ties which are aimed at factual results rather than the legal consequences as is the
case with an administrative act or other legal acts of the administration. The admin-
istration performs numerous and multifarious kinds of such acts. They may relate to
the internal affairs of the administration or to its affairs with the citizens. It is the lat-
ter of which the administrative law takes account. They are also classified into acts
which are explanatory (Wissenserkliirungen) and acts in the form of factual func-
tions (Verrichtungen). To the first category belong such acts as information, warning,
reporting, expert opinion, etc., while the second category includes such acts as pay-
ment of money, travel by official vehicle, giving of protective inocculations, clean-
ing of roads, construction of an administrative building, imparting of instructions,
construction and maintenance of transport routes, etc. This classification, however,
is not of any legal significance. Of legal importance is the distinction between the
private and public real acts. Administrative law is concerned with the latter and they
are those acts of the administration which fall within the province of public law or
implement those functions which are allocated to the public law.
Since the 'real acts are not aimed at legal outcome they are of much less legal in-
terest. But that does not mean that they are legally meaningless or irrelevant. The re-
58 Administrative Powers

quirement of legality is as much applicable to them as to the other activities of the

administration, i. e., they must be in conformity with law and in so far as they inter-
fere with the rights of an individual they must also be based on some law. 32 Beyond
that different legal standards are applied to different kinds of real acts. Thus inter-
ference with the right of personality is legal only if it satisfies the constitutional prin-
ciple of Verhiiltnismiifligkeit (reasonableness or proportionality).33 If a real act gives
factual information, the information must be correct. 34 If the administration claims
private property for the construction of roads it requires proper acquisition or inter-
im requisition of the property or the consent of the owner.35 Members of those pu-
blic unions which are based on compulsory membership are entitled to the claim
that the organs or instrumentalities of the union do not express any opinion on mat-
ters falling outside their functions. 36 Thus in the Tiibingen University Case some of
the students of the university of Tiibingen could succeed in getting directions
against the students union of the university not to express itself on issues of political
nature because its competence was confined to academic matters only. The union
had in fact condemned the killing of a student in Berlin in 1967 student demonstra-
tions and had supported the demand for the resignation of the mayor of Berlin and
collection of funds for the widow of the deceased studentY
The illegality of real acts does not raise the same questions of void, voidability,
and effectiveness as are raised with respect to other actions of the administration
but it has its consequences. The administrative authority is under an obligation to
set aside or remove the facts created by an illegal real act and restore the status quo
ante as far as is possible and reasonable. The citizen whose rights have been in-
fringed by an illegal real act has the right to get the facts of such act removed and get
the original position restored for which purpose he can file a general suit for affir-
mative relief (allgemeine Leistungsklage) in an appropriate administrative court. Be-
sides that he can also claim compensation or damages for any injury caused to him
by an illegal real act.
Common law does not draw a distinction between the real and other acts of the
administration and the former are not treated differently from the latter.

D. Plans and Planning

1. Nature of Planning

With the growth of the social welfare state in the present century planning has be-
come an important state activity. The object of planning is to augment the welfare of
the people through the best possible utilization of the limited resources of the socie-
ty. The process of attaining that object through planning, however, results in serious
limitations on the rights and freedoms of citizens. To that extent plans and planning,
which are otherwise mostly extra-legal, become a subject of immediate legal inter-
est. The nature of plans and planning, however, eludes all attempts to tighten them
within any specific concept of legal activity. In German law the problem becomes
even graver than in common law partly because the word 'plan' is used to cover
Plans and Planning 59

more diverse activities in Germany than in common-law countries. Even the state
budget is a kind, and one of the oldest form, of plan (Haushaltsplan). Also the num-
ber of planning legislations is very large and the planning machinery is quite com-
plex.
Further, plans may be expressed in the form of a statute as is the case with the
state budget, or in the form of a bylaw (Satzung) as is the case with the building
plans, or in the form of a government decision as is the case with the financial plans.
A plan may be purely informative as are the plans giving data and estimates, it may
be imperative such as a building plan, or it may be just an influencing plan such as a
plan which fixes the objects and priorities to be achieved. It may be addressed only
to state authorities without creating any rights or obligations for the citizens as
would be the case with the state budget or a development or zonal plan (Flachennut-
zungsplan) or it may be addressed to the citizens with direct effect on their rights and
legal interests. Again, it may be a general federal or state plan to which the local
plans must conform.
This diversity of plans has caused a big controversy among the German scholars
and jurists about the class of recognized administrative activities to which the plans
should be assigned. The well recognized criteria of internal and external effects, ab-
stract-general, and concrete-individual regulation, legal and factual consequences,
unilateral and mutual acts which are generally applied to distinguish one kind of
administrative activity from the other fail to fully comprehend all plans.38 At the
same time scholars are not willing to recognize plans as a separate independent le-
gal institution and the Federal Administrative Court has expressed its scepticism
whether that can be done. 39
However, in view of the fundamental right to approach the courts in case any
one's rights are infringed by any public authority it becomes necessary that the
plans and planning must be assigned to a specific category of administrative activi-
ties so that the individual may pursue an appropriate legal remedy in case a plan in-
fringes any of his rights or legally protected interests. Leaving aside the state budget
(Haushaltsplan) which is clearly a legislative activity the central controversy with re-
spect to the plans is whether they should be considered as rules or as administrative
acts for purposes of legal consequences, i. e., for the purpose of procedure for mak-
ing them and for the legal remedy against them. Where a law has assigned a plan to
a specific category as does section 10 ofthe Federal Building Law by designating a
building plan as byelaw (Satzung) there is no problem. But such cases are rare and
therefore in most of the cases one has to decide the legal nature of a plan according
to its particular circumstances, such as the maker of the plan, contents of the plan,
and its binding effect. It is generally accepted that all the plans which require a
planning permission (Planfeststellungsbeschluft) are administrative acts.40 But there
is no agreement that the plans which do not require such a permission are rules.
Confining himself to the surface plans (die raumbezogenen Plane), which affect
an individual most frequently and directly, whether they are specific plans (Fach-
plan) such as a plan for the construction of a railway track or a highway or an air-
port or they are general plans for the overall development of a region, Professor
Forsthoff holds that they are all administrative acts unless anyone of them has been
expressly given a legislative character by law. He agrees that it is very difficult to as-
sign the general plans either to the category of a norm or an administrative act but
60 Administrative Powers

depending upon its contents it has to be treated as an administrative act so far as it

has external effects. Disagreeing with the Federal Administrative Court41 and oth-
ers who hold similar views he holds that such plans have direct effect on the rights
of the individual even before they are specifically executed or enforced. Their adop-
tion affects, inter alia, the value of the land and restricts the right of its transfer and
use. 42 Taking a similar line of approach but with a wider coverage Wolff and Bachof
hold that all plans in the form of a statute, subordinate legislation or byelaw are not
formal administrative acts. Rather they consist of a bundle of real, factual and con-
ditional regulations which make them material administrative acts. 43
Once a plan is held to be an administrative act it becomes subject to all the legal
consequences applicable to such an act. Unless a law provides otherwise it must be
made, modified or withdrawn according to the procedure applicable to an adminis-
trative act already discussed and can be challenged in an administrative court
through a suit for invalidity.44

2. Planning Permission

All plans, particularly the regional or surface plans (Raumpliine), - which are the
most important and pervasive among all the plans - must be approved after the
consideration of all the interests - public, private, and of third parties. The planning
laws confer a very wide discretion on the administrative authorities in the matter of
planning permission but that discretion must be exercised legally and in arriving at
a decision the planning authority must take into consideration all the material fac-
tors relevant to the plan, all the rights and interests, all other plans of higher or equal
level, and all other affected aspects. 45 The procedure for the permission of specific
regional plans is given in the individual legislations relating to such plans which is
almost uniform in all the cases. However, now the Law of Administrative Procedure
of 1976 provides a general standard procedure applicable to the approval of all
plans where the law requires such an approval and does not provide a different
procedure. Since the provisions of the Law of 1976 have been incorporated by the
Laender also in their legislations this procedure is equally applicable to the Land
plans also.
According to that Law an applicant - any administrative authority or a private
person who seeks the planning permission - must present a draft plan to a hearing
authority provided in the law. The draft should include the maps and explanations
through which the purpose of the plan, the affected pieces of land and other instal-
lations may be known. The hearing authority gives an opportunity to the other con-
cerned authorities having competence with respect to the subject-matter of the draft
to express their opinion and also to all other persons whose interests are likely to be
affected by the approval of the draft to file their objections within a specified time
(two weeks). After the expiry of the time for filing the objections the hearing author-
ity on a fixed date discusses the objections and the opinions of the other authorities
with the applicant, the authorities, and the other affected persons to make an overall
assessment of the impact of planning permission. The hearing authority submits the
draft to the planning authority along with its opinion, the opinion of the other au-
thorities, and the undisposed objections. The planning authority disposes of the un-
Remedy Against Planning Pennission 61

disposed objections and grants or refuses the permission after the evaluation of all
the factors and evidence. It may also grant permission subject to the condition of
some precautionary measures or construction, or maintenance of some installation
by the applicant which is necessary either in the interest of the community or for re-
ducing the injury to the interests of others. If the conditions are unreasonable or in-
consistent with the plan the applicant is entitled to reasonable monetory compensa-
tion. The planning authority may also seek further information if a final decision is
not possible on the basis of materials before it.
The planning authority is under an obligation to give a reasoned decision in
writing and to serve it upon the applicant, known affected persons, and the objec-
tors. A copy of the decision with a statement of remedy against it and a copy of the
permitted plan must be laid for two weeks for inspection in the concerned county or
commune which fact must be properly notified and the notification must also men-
tion that after the expiry of that period the decision will be presumed to have been
served on all. Like any other administrative act the planning permission becomes
unchallengable after the expiry of one month from its service. The permission, after
it is given and served, regulates all the public law relationships between the appli-
cant and the other persons or authorities affected by it and all claims about any
omission in the plan or about the removal or alteration of any installations or about
the forbearance from their use are foreclosed. If, however, any unforeseeable effects
of the plan affect the rights of a third party for the first time after the expiry of the
period of its challenge it may request for adjustment in the plan.
Any modification of a draft plan which affects the competence of an administra-
tive authority or the rights of a third party for the first time is allowed only through
the procedure for planning permission unless the modification is very insignificant.
The planning authority shall withdraw the permission and ask the applicant to take
suitable steps in the interests of the community or to reduce the injury to the rights
of others if the plan has been finally abandoned after making a beginning. If the
implementation of a plan is not started within five years of its permission, it be-
comes ineffective.

3. Remedy Against Planning Permission

Generally speaking legal remedy against planning permission or a plan depends

upon the form - statute, byelaw or administrative act - in which it is expressed.
However, since the permission given through the procedure mentioned above is in
the form of an administrative act remedy with respect to it lies in the administrative
courts. The person seeking the planning permission may file a suit for invalidity if
his draft plan has been modified to his disadvantage or too many restrictions have
been imposed on it. He can file a suit for mandatory injunction (Verpjlichtungs-
klage) if his application for planning permission has been totally rejected. A third
party, whose rights and legally protected interests are infringed by planning permis-
sion may also file a rescissory suit to set aside the decision of approval. This right is
available to a county or commune also. A third person may also file a suit for man-
datory injunction for attaching a condition or requiring the construction of a pro-
tective installation or any other directive in his favour with respect to the plan. A
62 Administrative Powers

suit can be filed without resorting to the procedure of filing objection before the ad-
ministrative or planning authorities.
A closely connected problem is about the enforcement, continuation, and
change of a plan. Plans are made to achieve certain objects. Should they be en-
forced even after they are found to be unsuitable to achieve that object or should
they be abandoned or changed? Abandonement or change may affect the interests
of those who have relied on the plan. As has already been mentioned, plans in the
form of an administrative act may be withdrawn or revoked only through the proce-
dure and subject to the conditions applicable to the withdrawal or recovation of an
administrative act. However, in general the law so far has not recognized a right of
the individual in the enforcement of a plan although the individual is entitled to
compensation for any material loss suffered by him due to his reliance on a plan.46
Compared to common law, planning in German law seems to be more judicial-
ized and procedurally safeguarded. For example, in the matter of town and country
planning, in England nobody can challenge the grant of planning permission47 and
even against the rejection or modification of a plan an appeal in the first instance
lies with the Secretary of the State and only by way of exception a second appeal is
permissible in the High Court.48 There is no clear requirement of holding a hearing
or having discussion with the parties before granting or refusing a planning permis-
sion. Nor is there a requirement that the grant of planning permission must be com-
municated to all concerned or that it must be supported with reasons or a statement
of legal remedy must be attached to it. However, in case of revocation or modifica-
tion of planning permission the English law also provides for compensation as does
the German law.
The law relating to town and country planning in England does not bind the
crown and therefore the government departments can develop their land without le-
gal restrictions. There is no such privilege available to the government in German
law.

References

1 Wolff HJ, Bachof 0: Verwaltungsrecht I, 345 (9th ed, 1974). Also Lange K: Die Abgrenzung des
offentlichrechtlichen Vertrages vom privatrechtlichen Vertrag, [1983] NVwZ 313, 322.
2 Erichsen H-U, Martens W: Das Verwaltungshandeln, in Erichsen H-U, Martens W (eds): Allge-
meines Verwaltungsrecht, 234 (4th ed, 1979).
3 The word Koppelungsverbot cannot be exactly translated into English but it means prohibition
against copulation or joining of statutory benefits or obligations with other counter benefits not
permitted under law. The public services which the administration is under an obligation to pro-
vide cannot be made dependent upon counter benefits from the citizen.
4 See below, p 78.
5 See decision of 6 July 1973, 42 BVerwGE 331, 334.
6 Id, at 338 and also decision of 23 March 1977, 52 BVerwGE 183, 187.
7 Decision of7 April 1961, 16 OVG LbgE, 471, 475.
8 Decisions of 5 June 1959, 8 BVerwGE 329; of 18 April 1975, 48 BVerwGE 166, 168; of 5 Oct
1965 [1967] DVBI. 40 (BVerwG).
9 Decision of 14 Nov 1975,49 BVerwGE 359.
References 63

10 Decision of 21 June 1960 [1960) DOV 799 (OVG Munster); of 6 July 1973, 42 BVerwGE 331,
341.
11 Kopp FO: Verwaltungsverjahrensgesetz. 661 (2d ed, 1980).
12 Erichsen, Martens, above, n 2 at 240.
13 Maurer H: Allgemeines Verwaltungsrecht. 269ff (1980); cf. Erichsen, Martens, above, n 2 at 241.
14 Decision of 24 Feb 1978 [1978) DVB1610, 613 (BVerwG).
15 See Mitchell JDB: The Contracts of Public Authorities, 182ff (1954); Brown LN, Garner JF:
French Administrative Law. 110ff. (2nd ed, 1973).
16 Decisions of 25 Nov 1966 [1969) DVBl 796, 798 (BVerwG); of 21 Jan 1973 [1975) DVBl 46, 47
(OVG Munster); and Veelken M: Zur Problematik und Unwirksamkeit der sogenannten Garison-
vertriige. [1970) DVBl 924, 926.
17 Decision of 30 March 1973 [1973) DVB1696, 697 (OVG MUnster).
18 Ibid.
19 VwVfG, s 60.
20 See generally Turpin C: Government Contracts, 16ff (1972) and Mitchell JDB, above, n 15 at
220ff.
21 See, for example, the Constitution ofIndia, art. 299.
22 See Ramanav IA Authority of India. AIR 1979, SC 1628; EE & CLtdv State of WB, AIR 1975,
SC 266; Kasturi Lalv. State of J & K. AIR 1980 SC 1992.
23 Decision of 26 Oct. 1961,36 BGHZ 91, 96.
24 See Appendix I.
25 Wolff, Bachof, above, n 1 at 106. The authors also mention various laws that give special treat-
ment to the fiscal activities of the administration.
26 See decisions of 23 June 1967,27 BVerwGE 225; of 27 June 1969, 32 BVerwGE 252; of 27 Oct
1967 [1968) DVBl349 (OVG LUneburg) of 16Jan 1957,6 BVfGE 45.
27 Decision of 10 Dec 1958,29 BGHZ 76, 80ff.
28 Decision of23 Sept 1969, 52 BGHZ 325, 328.
29 Erichsen, Martens, above, n 2 at 260.
30 See cases cited in n 22 above.
31 See Sukhdev Singhv Bhagat Ram. AIR 1975 SC 1331; Ajay Hasiav Khalid Mujib, AIR 1981 SC
87; and Som Prakash v Union of India, AIR 1981 S C 212.
32 Erichsen, Martens, above, n 2 at 263.
33 Decisions of15Dec 1970, 30 BVerfGE 1, 20ff; of9Feb 1966, 23 BVerwGE 223; and of9 Feb
1967,26 BVerwGE 169.
34 Decisions of 11 March 1964 [1965) DVBI447 (Bay VGH); of 4 Oct 1966 [1967) DVBl 51 (OVG
MUnster)
35 Decision of 25 Aug 1971 [1971) DVBl 858 (BVerwG).
36 Decision of 26 Sept 1969, 34 BVerwGE 69 [1977) DVBl642 (OVG Hamburg).
37 Decision of 18 Jan 1977.
38 Erichsen, Martens, above, n 2 at 224; Forsthoff E: Lehrbuch des Verwaltungsrechts I, 310 (10th
ed, 1973). Forsthoff says: 'Plan is not a mixed form of rule and administrative act rather it is sui
generis (aliud) . ... It remains an unsolved remainder'.
39 Decision of 29 May 1964, 18 BVerwGE 318. Also see Schmidt-Assmann E: Planung unter dem
Grundgesetz, [1974) DOV 541.
40 Decision of23 July 1967, 27 BVerwGE 226, 227.
41 Decision of 3 May 1956, 3 BVerwGE 258, 265.
42 Forsthoff, above, n 38 at 304 ff Compare, the decision cited in the preceding note and the deci-
sion of 4 Aug 1956,4 BVerwGE 68.
43 Wolff, Bachof, above, n 1 at 399.
44 Above, ch 3.
45 Wolff, Bachof: Verwaltungsrecht Ill. 355ff (4th ed, 1978).
46 RUfner W: Das Recht der offentlich-rechtlichen Schadensersatz- und Entschiidigungsleistungen, in
Erichsen & Martens, above, n 2 at 457. Also OssenbUhl F: Staatshaftungsrecht. 176ff (2nd ed,
1978).
47 See Buxton v Minister of Housing and Local Govt [1961)1 Q B 278.
48 Wade HWR: Administrative Law. 171-72 (5th ed, 1982).
Chapter 5
General Principles of Judicial Review

1. The Common Law and German Law Approaches: An Overview

In common law judicial review of administrative powers means review of the exer-
cise of such powers by the ordinary courts, i. e., the courts which also decide the dis-
putes between private persons. In Germany, as will be noted below, the ordinary
courts, however have no jurisdiction to entertain the administrative law matters.
Such matters are assigned specifically to the jurisdiction of the courts created spe-
cially for that purpose namely, the administrative courts. 1 Judicial review of admin-
istrative powers in Germany, therefore, means review of the exercise of such powers
by the administrative courts. The administrative courts should, however, be not con-
fused with the administrative tribunals operating in the common law jurisdiction.
While, in spite of their statutory status and independence from the executive, the
administrative tribunals are still considered part of the executive branch of the Gov-
ernment, the administrative courts in Germany are strictly an integral part of the ju-
diciary and share the judicial power of the state with the other courts. They are as
independent from the executive as are the ordinary courts. 2
This basic divergence of approach in the two systems leads to further differ-
ences in the application of judicial review. First, the common-law courts derive their
power of judicial review essentially from their traditional authority of giving rem-
edy against the illegal action of anyone - whether a private person or an employee
of the state - to the affected person. This power of the courts is inherent in the sys-
tem and does not depend on any legislative grant. On the other hand, the German
administrative courts have no such inherent power. Their power is dependent upon
the legislation that regulates their jurisdiction. They do not have any inherent juris-
diction to remedy every administrative wrong, though, of course, the Basic Law rec-
ognizes a fundamental right of recourse to the courts in case a person's right is vio-
lated by any public authority.3
Second, although the jurisdiction of the common-law courts to review the exer-
cise of administrative powers is not dependent upon the legislative grant, it can cer-
tainly be restricted by legislation. That has, in fact, been done through the creation
of administrative tribunals which have the power to decide the matters falling with-
in their jurisdiction both on questions oflaw as well as fact. Consequently, the pow-
er of the courts has been restricted only to the jurisdictional questions. 4 That at least
is the theory though in practice the courts quite often travel into the arena of merits
in order to determine a jurisdictional issue. The administrative courts in Germany,
however, do not suffer from such restraints. They have plenary jurisdiction and can
go both into the questions of law as well as facts and can decide on merits.
Third, asa corollary of the foregoing point the common-law courts may only
uphold or invalidate an administrative action. They cannot correct or modify it. But
Basis of Judicial Review 65

as courts of the first and final instance the German administrative courts may not
only invalidate an administrative action if it is in excess of jurisdiction they may al-
so check errors committed within the jurisdiction and may also modify or change
the administrative determination. Of course, they also cannot go into the propriety
or expediency of an administrative action. But their jurisdiction is not confined to
jurisdictional questions. They can go into all questions of legality whether apparent
on the face of the record or hidden in or behind it and can also replace the adminis-
trative determination by their own. 5
Last, as is noted below, the distinction between the ordinary and extra-ordinary
remedies for judicial review of administrative action which exists in common law,
does not exist in German law. In German law all administrative acts or decisions are
reviewed by the courts in regular suit proceedings.6
Beyond these apparent differences of approach between the two systems, there
exists a unity of purpose and technique. Both systems aim at achieving an optimum
balance between an effective administration and realization of social interests on
the one hand and the safeguard of the individual interests on the other. The aim of
seeing the social welfare being administered effectively along with the maintenance
and observance of the rule of law is equally dear to both of them. In the pursuit of
that aim the two systems have also employed the same technique of judicial process
through which in course of time they have developed a body of law that guides the
administration and regulates the judicial control of administrative powers. The
body of law so developed, except for minor details here and there, is also not very
different in the two systems.

2. Basis of Judicial Review

The rule of law in combination with the doctrine of ultra vires forms the basis for
judicial review of administrative powers in common law. The rule of law requires
legislative authorization for every administrative action against the rights of an indi-
vidual. The doctrine of ultra vires furnishes thejustification for invalidating any ad-
ministrative action going beyond the authorization. This is uncodified law. Of
course, constitutions in some common-law countries expressly subject the executive
to some basic rights and also authorize the courts to invalidate any legislative or ex-
ecutive measure if it conflicts with such rights.? But beyond that the constitutions do
not expressly say that the executive shall always be bound by law or that it cannot
act without a legislative grant. 8 There it is the principle of the rule oflaw which re-
quires the executive to act on the basis and in accordance with law. Any person who
has the locus standi to challenge an illegal administrative action can approach the
court and get it invalidated if either it is based on no law or is ultra vires.
In German law judicial review of administrative action stands on a more solid
basis. Not only the Basic Law guarantees certain judicially enforceable basic rights
but among such rights is also included the right to approach the courts in case any
right of a person, including the rights other than the basic rights, is violated by any
public authority.9 Enforcement of the basic rights against the executive has not been
left to be based on the general principle of the rule of law that there should be a
66 General Principles of Judicial Review

legislation to justify any infringement of those rights. It has been emphatically ex-
pressed in the Basic Law itself that the basic rights bind the executive in the same
measure as the legislative and the judiciary and are directly enforceable law.lO Be-
sides, the Basic Law expressly subordinates the executive to legislation by a clear
provision that 'the executive ... shall be bound by law and justice.'l1 Not only that, it
also treats this provision a basic principle which cannot be changed even by an
amendment of the Basic Law. 12 Thus, what is still an unwritten law or law based on
judicial precedents in common law has been raised to the status of express constitu-
tional provision in German law. In pursuance and for the realization of these provi-
sions the Federal and Land legislatures have enacted legislations which confer ju-
risdiction upon different courts to check the administrative excesses. The Law on
Administrative Courts of 1960, which regulates the jurisdiction and procedure of
the administrative courts in the country specifically authorizes the administrative
courts to invalidate illegal actions of the administrative authorities falling within the
jurisdiction of such courtS.13 Thus legislations supported by the constitution and not
any judicially evolved principle is the immediate basis of judicial review of adminis-
trative powers in Germany.

3. Basic Principles of Judicial Review

In spite of the apparent difference in the source or basis of the courts' authority to
review the administrative actions in common law and German law there is no basic
difference between the principles which regulate the exercise of such authority. The
fundamental principle in common law is that all powers must have their base in law
and must be exercised in accordance with it. No exercise of power, particularly
when it affects the legal interests of an individual as such or as a member of the so-
ciety, is valid if it is not authorized by law or exceeds such authorization. Further,
even if the authorization has been made in very wide terms no authorization is limit-
less. The limits may be narrow or wide according to the nature and purpose of the
authorization and accordingly may be easy or difficult to be drawn but there can be
no situation where the administrative authorities may claim that their authorization
knows no limits. Therefore, in every case the exercise of power by an administrative
authority may be brought before the courts to test its legality. The same principle or
justification of judicial control is applicable in German law.
Legality, of course, covers constitutionality. But in view of certain constitutional
provisions and their application by the courts in Germany, emphasis on the princi-
ple of constitutionality deserves a separate treatment.

(a) Principle of Constitutionality

The Basic Law like the constitutions of the common-law countries is the supreme
law of the land and not merely a political document for the guidance of the state or-
gans. It binds all organs of the state and any violation of it may be made a subject of
litigation in the courts on which they can make authoritative pronouncement. Fur-
ther, like the common-law countries and unlike civil-law countries such as France,
the bindingness of the constitution is not only formal but also material in so far as
Basic Principles of Judicial Review 67

all state actions including legislation must conform to such principles as are em-
bodied in the basic rights or some other provisions of the constitution. 14
Normally, in a state governed by the rule of law there would be rare situations
when the constitution would operate directly upon the executive vis-a-vis an indi-
vidual in so far as the rule of law requires legislative basis for an administrative ac-
tion. And so long as the legislation is consistent with the constitution any action of
the administration which violates the constitution must also violate the legislation
on which it is based because no constitutional legislation can authorize an unconsti-
tutional action. But there is no dearth of cases where the courts have invalidated an
administrative action without going into the question whether it is authorized by the
legislation on which it is based. 15 Moreover, there may be situations where the gov-
ernment instead of interfering with the rights of the citizens is either dealing with
them as a private person, for example, in the matter of entering into contracts for the
execution of a work or supply of goods or is confering certain benefits on them, for
example, grant of a subvention or some other social benefit. In such cases there may
not be any specific legislation to support the administrative action, yet the action
may be challenged if it is in violation of any constitutional provision, particularly,
the basic rights and among them also the right to equality. Thus, for example, denial
of hearing to a person before disqualifying him to enter into any contract with the
government has been held a violation of the constitutional right to equality by the
Indian Supreme Court. 16 Similarly, the American Supreme Court has held that the
termination of public assistance to a person without affording him a hearing vio-
lates the constitutional protection of due process of law. 17
The Basic Law, as noted above, makes the basic rights directly operative upon
the executive and therefore any administrative action may be challenged on ground
of violation of basic rights irrespective of the constitutionality of the legislation on
which it is based. It applies directly not only to the exercise of discretion but also to
the issuance and application of the sub-ordinate legislation and also to the applica-
tion of laws made before the commencement of the constitution. Of course, as in
common-law countries, the most important of all the limits put up by the constitu-
tion is the right to equality which operates not only against legislation and its appli-
cation but also against the administrative practice which the administration itself
has established for the exercise of its discretion. Thus, for example, an administra-
tive authority cannot deny exemption from building regulations to the owner of a
house which are available to his neighbours unless his case is distinguishable from
others. 18 Similarly, it cannot deny to one shop-keeper of the town the permission to
display his goods outside which by way of exception it has granted to the other
shop-keepers. 19 The bindingness of other basic rights is, however, no less important.
Thus, for example, the Federal Administrative Court has held that in the exercise of
discretion to expel a foreigner who is married to a German the administrative au-
thorities must keep in mind the basic right to special protection of marriage and
family.2o And similarly, it has held that in granting special permission to a political
party for putting up placard stands on the street for the purpose of political publici-
ty the administrative authorities must take into account the basic right to freedom of
speech and expression and the constitutional provision relating to the political part-
ies. 21 Thus the constitutional provisions operate and are applied directly and very
effectively against the administration.
68 General Principles of Judicial Review

(b) Principle of Legality

The principle of legality, which is as much a creation of courts in German law as in

common law, consists of two aspects. One is the primacy of law over all other ex-
pressions of state authority (negative legality) and the other is the requirement of
law for the exercise of any administrative powers (positive legality). The two may be
examined separately.

(i) Primacy of Law (Negative Legality): Primacy of law, in general, means that all ad-
ministrative actions are invalid to the extent they conflict with any legislation. More
specifically, it means that an administrative legislation is invalid to the extent it con-
flicts with a legislation - parliamentary or executive - of higher order and that any
other administrative action is invalid to the extent it conflicts with a legislative norm
even if laid down by the administration. The foundations of this aspect of legality
are laid upon the unity of state power and legal system and not in the sovereignty of
Parliament as in England. Its immediate basis is seen in article 20(3) of the Basic
Law which binds the executive by law and justice. By employing justice with law ar-
ticle 20 (3) widens the scope of legality to cover not only formal legislation but also
the general principles of legality operating in the legal system. Thus in its specific
details negative legality consists of the following prohibitions and commands:
1. Observance of the constitutional commands and prohibitions including the basic
principles on which it is based such as the free representative democracy.22
2. Observance of valid laws, including the observance of such legal principles as
equality, impartiality, non-arbitrariness, reasonableness, compliance with public
morals and with the budgetory provisions. 23
3. Prohibition on gifting out benefits to the individuals without specific legal au-
thorization and corresponding social benefits; prohibition on making the sover-
eign measures dependent on quid pro quo; and prohibition against misuse of
state monopoly in any manner.
4. Compliance with the legal limits of competence, i. e., an administrative organ
must confine to the functions which fall within its competence24 ; it should not ex-
ceed its territorial or substantive competence and must observe the form and
mode provided for its exercise. 25 Further, the administrative authorities must take
their functions seriously and in their performance they must not only observe im-
partiality but also further the public interest and use all objective administrative
techniques in furtherance of law such as application of the principle of priority in
granting the benefits when it is not possible to grant such benefits to all.
5. Cooperation in the exercise of the functions and in the achievement of the objec-
tives of the other organs of the state.
6. Promotion of governmental policy not only when expressed in law but also ex-
pressed otherwise by the members of the government. 26

(ii) Requirement of Law (Positive Legality): Legality in this sense requires the au-
thority of law as a pre-condition for the exercise of any administrative power. Law
means a formal statute enacted by a competent legislative body or a subordinate
legislation authorized by a statute. 27 The immediate basis for this aspect of legality
is traced in articles 19(1) and 20(3) of the Basic Law. The former requires a law of
Basic Principles of Judicial Review 69

general application for the restriction on fundamental rights while the latter makes
the executive bound by law. 28 But a broader and more convincing justification lies,
as in common-law countries, in the principle of parliamentary democracy accord-
ing to which the administration must act not on its self authority but upon the au-
thorization by people's representatives. A clear assertion of this principle finds ex-
pression in the pronouncements of the Federal Constitutional Court which has held
that it is a fundamental requirement of the classification of functions in a democrat-
ic state based on the rule oflaw that the government and the administrative authori-
ties should be allowed to interfere with the rights and freedoms of the people only
on the basis of authorization by the people's representatives and not of their own
authority.29 An additional justification is given in the requirement of the rule of law
that the legal relationship between the state and the citizen must be regulated
through general law which not only defines the administrative activities but also
makes them foreseeable and calculable. 3o In this respect, as has already been noted,
German law is clearly distinguishable from the French law which recognizes inher-
ent powers with the executive to act without legislative authorization. 31
As regards interference with the rights of a person by the administration (regula-
tory administration) the requirement of law has been established since the last cen-
tury and is no more a disputed issue. But in the sphere of administration of benefits
for the members of the society (benefactory administration), which role the state has
undertaken primarily in this century, the issue is still a subject-matter of controver-
sy. So also is the case in the sphere of special relationships of subordination such as
school administration, penal institutions, or status of a public servant to which not
much attention was drawn in the last century. The predominant opinion of the Ger-
man jurists as well as the balance of the recent court decisions is in favour of having
a law even in these spheres. The arguments in support are: first, with the establish-
ment of democracy and rejection of monarchy the executive has lost its leadership
role and the parliament has become the most prominent instrument through which
the executive acts. Second, and which is perhaps more important, with the introduc-
tion of the social welfare state the concept of the freedom has changed. In a liberal
state (of the last century) freedom means autonomy of the individual in certain
spheres in which the state could enter only through law. Today freedom has differ-
ent connotation. The effort of the state today is to remove through law the handi-
caps on the freedom of an individual created by his social dependence and to re-
store his lost freedom. Freedom today does not mean only absence of state interfer-
ence but also participation in the state benefits. Accordingly, the requirement oflaw
must cover the entire benefactory administration just as it covers the regulatory ad-
ministration. 32
Much of the controversy has lost its practical importance because almost all
areas of benefactory administration are governed by legislation. It has been suggest-
ed that if inspite of these legislations any benefits are granted which are not covered
by legislation they must be illegal. 33 But no specific legislation regulates the grant of
state subventions. According to some judicial decisions as well as juristic writings
the pre-requisite oflaw is satisfied as soon as the parliament has expressed its will in
this respect through budgetory provisions providing the means for the payment of
subvention. 34 The counter argument is that the budget simply mentions the amount
to be paid as subventions but it does not specify as to whom, under what conditions,
70 General Principles of Judicial Review

and to which extent they have to be paid. In the absence of law it is done through
executive directions. This is contrary to the principle of the rule of law according to
which distribution of the resources of the state must be made under a law which
makes such distribution foreseeable and definite and procures to the individual a
corresponding right to claim the subvention if he satisfies the requirements of that
law. No doubt withholding of a subvention such as for the continuance or establish-
ment of a business or for the continuance of studies may have as grave effects as in-
terference with one's freedom or property. Therefore, excepting the emergency situ-
ations such as natural catastrophe in which distribution of subventions may be left
at the discretion of the executive, all normal cases must be governed by legislation.35
As regards those relationships in which the individual vis-a-vis the state does not
stand as an individual with equal rights but as a member of some institution or de-
partment of the state in which he stands in the position of subordination such as a
student or a prisoner or a state servant or an armyman till as late as 14 March 1972
the legal position was that these and similar other relationships could be regulated
through administrative directions without the need of legislation. It is on that day
the Constitutional Court made a break-through in the area of penal law which had
its impact in other areas also. On a suit of a prisoner whose letter from the prison to
a friend was withheld by the prison authorities because it contained adverse re-
marks against them and about the conditions inside the prison the Court held that
the basic rights are applicable to the prisoners also and can be restricted only
through a legislation and not on the basis of administrative regulations. 36
The immediate impact of this decision was on the school system. Till recently
the school system was conducted on the basis of ministerial or departmental orders
having no basis in any legislation. Soon after the above decision the constitutional
court held that the rule oflaw and the democratic principle of the Basic Law require
that the important or vital decisions in the sphere of school system, particularly
those affecting the basic rights, must be taken by the legislature and should not be
left to the school administration. 37 The only question now is of determining the vi-
tality or importance of a decision. Generally speaking such decisions are those
which relate to the determination of contents or objects of education, subject-cata-
logue or sylabus, the organizational basic structure of the schools and the legal sta-
tus of a student.38
As regards the administration of state civil services or departments, the general
proposition is that in their internal matters they can be administered through their
self-created regulations without the requirement of a legislation. However, the
structure of the administration in its entirety must be determined by legislation.
Moreover, such organizational regulations which affect the outsiders (citizens) di-
rectly must be based on legislation.39
Thus the courts are extending the principle of legality into new areas of adminis-
tration in order to see that it acts according to law and not according to its whims or
fancies. Moreover, as we have already pointed out, German law like common law
does not recognize an administration absolutely free from legal limitation even in
the absence of a legislation. An administration free from legislative limits is not
equivalent to an administration free from all legal limits. After all every state au-
thority is bound by the constitution and therefore by the all pervasive principle of
equality.
Scope of Judicial Review 71

4. Scope of Judicial Review

It has already been pointed out that although the German Courts may go both into
the questions of law and facts about the validity of an administrative action and
may also in certain cases substitute their own decision for that of the administrative
authority their scope of review, like the common-law courts, is confined to the legal-
ity of the action and does not extend to examining its expediency or what is called
Zweckmii./3igkeitin German law. In common law this limit is observed on the princi-
ple that the legislature in its wisdom has assigned a job to the administrative author-
ity and so long as it performs that job keeping itself within the legal limits set by the
legislature, the courts cannot check it. They check only when the legal limits are
transgressed because no administrative authority is entitled to act illegally or ultra-
vires of its powers. In German law the limit is observed under the doctrine of sepa-
ration of powers. The matters of policy and their execution is the domain of the ex-
ecutive into which the judiciary cannot trespass. The judicial function is confined to
the determination of legality of an action. This separation has been well maintained
in the Law on Administrative Courts 1960 in so far as it authorizes an administrative
authority in objection proceedings to go both into the legality and expediency
(Zweckmii./3igkeit) of an administrative act40 but confines the jurisdiction of the ad-
ministrative courts to legality.41
Even though the scope of judicial review in Germany is also confined to the le-
gality of the administrative action its operation becomes much wider than in com-
mon law. The German administrative cour~s are the sole forum of administrative
adjudication. They do not adjudicate upon the legality of a decision of an adminis-
trative tribunal which has already gone into the law and facts of the dispute. The
matter starts and ends with them. Therefore, like any court of initial and conclusive
jurisdiction not only the administrative courts can go into all questions of law and
facts but can also record all the evidence necessary for a proper disposal of the dis-
pute. Moreover, the procedure in German administrative courts is based on the
inquisitorial principle. 42 Accordingly, the court is not dependent only on the evi-
dence which the parties prefer to offer before it but it may also collect and demand
such other evidence as it considers necessary for the proper disposal of the dispute.
Thus unlike the common law courts which in the exercise of their review jurisdic-
tion have to confine to the record and cannot go beyond or behind it, the German
administrative courts themselves make and prepare the record. Consequently, their
scope of enquiry becomes much wider than that of the review courts in the common
law countries.
Their jurisdiction is akin to, though in certain respects wider than, the appellate
courts in common law whose jurisdiction is not confined to jurisdictional issues but
extends to all questions of law, facts, and merits. Common law always draws a dis-
tinction between illegalities of jurisdiction and illegalities within the jurisdiction.
While the reviewing courts can always check the former they refuse to go into the
latter unless an illegality amounts to an error apparent on the face of the record. The
German courts draw no such distinction and can review any illegality whether com-
mitted within the jurisdiction or outside. As a corollary of that they may also modify
the administrative decision and replace by their own in suitable cases. 43 Moreover,
as will be noted below, in determining the legality of an action the German adminis- ,
72 General Principles of Judicial Review

trative courts may go into such questions as, for example, morality of an action into
which the common law courts would not enter.

5. Grounds of Judicial Control

The sole ground of judicial control of administrative powers in common law is the
excess of jurisdiction or ultra vires exercise of the powers. A power may be ex-
ceeded either by non-observance of the proper form or procedure for its exercise or
through a wrong application of law, facts, and discretion. The former is called the
procedural and formal ultra vires while the latter is designated as the substantive
ultra vires. The substantive ultra vires is further divided into the ultra vires of discre-
tionary powers and ultra vires of questions of law and fact. 44 These distinctions
have emerged through the course of development of judicial review of administra-
tive action in common law whose starting point is the doctrine of ultra vires or juris-
diction. The German law has not developed on the same lines. The German courts
do not acquire their power of judicial review through the circuitous route of ultra
vires but directly through legislation. Therefore, it is difficult to find exact similarity
between the nomenclature and classifications in the two systems. However, it is true
that the German writings on administrative law also draw a distinction between the
discretionary and non-discretionary powers of the administration and treat sepa-
rately the grounds for the control of the two. The distinction is supported by the
Law on the Administrative Courts of 1960 which makes two separate successive
provisions on the courts' jurisdiction over the legality of discretionary and non-
discretionary acts of the administration.45 We may also follow the same distinction
in discussing the grounds of judicial review.
It may, however, be noted at the outset that while the German writings as well as
the provision of the Law on Administrative Courts relating to the review of discre-
tionary acts mention the grounds on which such acts can be reviewed, neither the
writings nor the Law discuss separately the grounds on which the other administra-
tive acts may be reviewed. The grounds which make an administrative act illegal are
rather discussed with the nature of the administrative act some of which have now
also been mentioned in the Law of Administrative Procedure 1976. But almost all
the grounds under whatever topic they are discussed have been created by courts in
Germany as in common law countries. Since the power of review of the German
courts has never been subjected to the limitation of jurisdictional questions from
which the common law courts have always suffered the grounds of review in the
German law do not have an exact correspondence in common law and are in cer-
tain respects wider.

(a) Disregard of Form and Procedure

On the legal effect of disregard of the requirements ofform and procedure by an ad-
ministrative authority in the exercise of its powers, common law furnishes no clear
cut guidelines. One has to rely on whether the courts treat a particular requirement
mandatory or directory.46 If they treat it mandatory the exercise of power is illegal
Grounds of Judicial Control 73

but it is merely irregular if they decide to treat it directory. When will they treat it
one way or the other is not quite clear. Generally speaking, a breach of procedural
or formal rules is likely to be treated directory 'if the departure from the terms of the
Act is of trivial nature, or if no substantial prejudice has been suffered by those for
whose benefit the requirements were introduced, or if serious public inconvenience
would be caused by holding them to be mandatory, or if the court for any reason is
disinclined to interfere with the act or decision that is impugned'.47
German law stands on a sounder footing in so far as the Law of Administrative
Procedure clearly enacts that an administrative decision will not be subject to invali-
dation on the ground of violation of a provision relating to form or procedure if the
observance of such provision would have led to no difference in the decision. 48 This
provision, however, does not protect non-compliance with the form or procedure
resulting in the nullity of an administrative act. Nullity of an act, as we have already
seen, may either be apparent on its face or it may have to be proved on the basis of
the surrounding circumstances. 49 Cases falling within the former category are enu-
merated in the Law and therefore cause no problem. 50 But the cases falling within
the latter category have to be determined on individual basis. Here the German law
is in no better position than the common law in so far as the court decision will de-
pend upon whether it treats a formal or procedural provision mandatory or directo-
ry. Only in the case of non-observance of the mandatory provisions the administra-
tive decision will be void. Such provisions may be those which prescribe a form for
the administrative decision but do not fall within the category of provisions men-
tioned above. Further, they may be those which are made for the protection of the
rights of an individual, or perform an important role in the enforcement of the rule
of law and are considered so important that their violation must lead to the nullity
of the administrative action. 51 A procedural provision which requires an application
to be presented by an individual before an administrative act is taken is normally
treated to be mandatory depending upon the meaning of the requirement of the ap-
plication and the nature of the administrative function. 52 But to the extent the agree-
ment or consent of the concerned individual is a condition for the taking of an ad-
ministrative decision as, for example, in the case of an appointment of a person in
the civil service, the provision for such consent is always considered mandatory and
its non-observance leads to the nullity of the decision. 53 Similarly, except in very
rare cases the courts treat the procedural requirements in the formation of discre-
tionary decisions as mandatory. 54 Requirement of hearing is considered important-
though not always mandatory - and its non-observance in a case whose factual cir-
cumstances required its observance has been held to be fata1. 55 Similarly, in some
cases provisions relating to the notice or publicity of the process or of the time limit
or date fixed by the administrative authority have been held mandatory and their
non-observance has resulted in the invalidation of the administrative decisions. 56
Moreover, in each case an affected individual may argue that the observance of
the form and procedure would have resulted in a different decision. Whether it
would have so resulted has to be answered on the basis of an objective criterion.
N on-observance is insignificant if (i) either the observance in the specific case could
not be the cause of decision, i. e., could have no influence on it; or (ii) in any case the
decision is legally defensible on other grounds. 57 In the first case one has to estab-
lish that there was no possibility of a different decision even if the procedure and
74 General Principles of Judicial Review

form had been observed. 58 This, for example, is the case with the failure to sign an
examination report,59 or non-keeping of the minutes of the proceedings of a meet-
ing in which a decision was taken,60 or failure to notify a project if the individual
concerned had otherwise obtained all the details about it and the failure to notify
did not affect him in any way from asserting his rights,61 or the non-hearing of a
party on a question which under no circumstances could have played any role in the
taking of the decision. 62 In all these cases strict adherence would have made no dif-
ference in the decision. Similarly, to take an example of the second type of case,
non-observance of the procedural requirement of hearing of an applicant on his ap-
plication is immaterial if the application had already been rejected on ground of
non-fulfilment of some pre-requisite for its admissibility.63
Although common law grants no general immunity from challenge to the ad-
ministrative decisions taken in disregard of procedural provisions and treats the re-
quirement of hearing mandatory even when it is not expressly mentioned, a tenden-
cy is visible in some recent statutes and judgments to protect such decisions against
challenge if no substantial prejudice has been caused to the individual affected by
such decision. 64 At the same time some German writers have severely attacked the
general exemption granted to the administrative decisions taken in disregard of the
formal or procedural provisions. They concede that such exemption excludes un-
necessary litigation and delay but at the same time they argue that the principle of
sanctionless requirement ofform and procedure is inconsistent with the rule oflaw.
Moreover, many formal and procedural provisions through clarification of facts
and circumstances assure utilization of expert knowledge and trust in the adminis-
tration. The declaration that even a strict observance of form and procedure would
have made no difference in the decision is always to a certain degree hypothetical
and rarely convinces the affected person. Therefore, non-observance of the proce-
dure should be considered fatal not only when its observance would have resulted
in a different decision but also when an administrative decision through the non-
observance of important constitutional procedural guarantees imposes a burden
upon an individual and does not correspond with his just expectations in a faultless
treatment, particularly when it impedes the possibility of his defence. 65

(b) Lack of Competence

Lack of competence to take an administrative decision may arise or exist in several

situations. A decision of a person who is not entitled to hold an office either because
he has not been properly appointed to it or has been suspended or removed from it
is no decision and can be so declared by the courts. However, bona-fide decisions or
acts of a person whose appointment is subsequently nullified or withdrawn are pro-
tected by law.66 A decision of an administrative authority may also be void because
in the scheme of the legal system or the constitution that decision could be taken on-
ly by the legislative or the judicial branch of the government. Such, for example,
are the decisions with respect to the socialization of land, natural resources, and
means of production, or forfeiture of fundamental rights, or prohibition of a
political party.67 Similarly, an administrative decision taken by an authority belong-
ing to one legal entity such as a Land in the federation will be a nullity if it could be
Grounds of Judicial Control 75

taken only by an authority belonging to another legal entity such as the federa-
tion.
Again, lack of competence may also arise because a person acting for the ad-
ministrative authority is prohibited to take or participate in a decision by reason of
his interest or bias. Section 20 of the Law of Administrative Procedure 1976 enu-
merates the categories of such persons. Such is a person who himself is a party or a
relative of a party, or who by virtue of law or legal authorization represents a party,
or who is a relation of a person who represents a party, or who is employed by a
party for a consideration, or is a member of a board of directors or board of trustees
or works for a similar institution, or who outside his official capacity has expressed
an opinion on or has otherwise acted in the matter. 68 This provision does not dis-
qualify a person because he belongs to a profession or a group of people whose
common interest may be affected by a decision. Nor does it apply to the selection to
or dismissal from an honorary activity. In case an administrative decision has to be
taken by a committee and a member of it is doubtful whether he belongs to the cate-
gory of the excluded persons, he must inform the chairman of the committee. The
committee decides the issue without the participation of the concerned member. In
case the committee decides that the member should be excluded then he would not
participate in subsequent discussions and decisions.
Section 44(3) of the Law, however, says that except in case a person himself is a
party, his participation in the taking of administrative decision does not affect the
validity of the decision unless it is proved that his participation has influenced the
decision. But no such proof is needed if the participant himself is a party to the sub-
ject-matter of the decision. In such case the decision is a nUllity.69

(c) Excess of Jurisdiction

An administrative authority may exceed its jurisdiction either by acting upon a mat-
ter which lies beyond its territorial limits or by acting upon a matter which is not as-
signed to it. The former may be called the excess of territorial jurisdiction while the
latter may be called the excess of substantive jurisdiction. Since the consequences of
the two excesses differ they may be discussed separately.

(I) Excess of Territorial Jurisdiction: The general law on territorial jurisdiction of

the administrative authorities is given in Sect. 3 of the Law of Administrative Proce-
dure. But like other provisions of the Law it is subject to special federal and Land
laws. As a matter of rule any violation of the territorial jurisdiction does not affect
the validity of an administrative act if it is otherwise valid. 7o The only exception lies
with respect to the violations in the matter of immovable property or legal relation-
ships attached to a place. In these matters only the authority within whose district or
region the property or the place lies has the jurisdiction to take an administrative
act. Any departure from it makes the act null and void'?!

(II) Excess of Substantive Jurisdiction: An administrative authority may exceed its

substantive jurisdiction in two situations. Either an authority of the higher instance
in the same department performs the function assigned to the authority of the lower
instance or vice versa. Or an authority in one department performs an act which is
76 General Principles of Judicial Review

assigned to an authority of the same rank or level in another department. In the for-
mer case if the higher authority is competent to withdraw a function from the juris-
diction of the lower and perform it then there is no excess of jurisdiction. But this is
an exception and must have an express legislative support. Normally a higher au-
thority is a supervisory authority which corrects the mistakes of the lower authority
and, therefore, is not entitled to stand in the position of the lower authority. Non-
observance of this principle deprives an individual of the opportunity of his matter
being supervised or checked by the higher authority and therefore makes the ad-
ministrative decision invalid. The same is the position when the lower authority per-
forms the functions of the higher authority. If some function is assigned to a higher
authority so that it can properly determine the facts and law with uniformity in a
wider area then any decision of a ldwer authority will be inconsistent with law and
therefore null and void.72
As regards the actions of authorities of the same rank in excess of their jurisdic-
tion the position is not so clear. Here the principle of legal protection to bonafide
acts plays a considerable role. Accordingly, the validity of an act will depend upon
whether the excess of jurisdiction is obvious. In case it is so the action falls outside
the range of legal protection to the bonafide acts and is void. However, if the juris-
diction and the scope of action of one authority stands in such a close relationship
to that of another authority that any violation of it can be traced only with difficulty
then the violation is protected by the principle of legal protection of bonafide acts.
Such would be the case, for example, when a city inspector takes an action on a
matter falling within the jurisdiction of the mines inspector or the customs office
takes an action on a matter lying within the jurisdiction of the revenue office. Of
course such an action is not completely immune from challenge. But it is voidable
and not void.?3
The same is the result when within the same administrative department func-
tions of the same level are legally divided between different organs or parts of an or-
gan of that department. Thus, a permission to construct a house is not void simply
because it has been granted by the mayor instead of the city council. 74 Finally,
breach of internal administrative rules about the competence of different authori-
ties does not make an action even voidable.?5

(d) Substantive Defects

These are the defects relating to the contents or substance of an administrative ac-
tion. They may be either of law, facts, means or of some other kind.

(i) Legal Defects: According to the principle of legality all administrative actions
which are inconsistent with law, or are not based upon a law, or are based on an in-
valid law are invalid. However, in a system based on the rule of law the administra-
tion rarely commits such patent errors. Normally the illegality is committed in the
interpretation or application of law or in the non-observance of the established ad-
ministrative practice. Since such illegality is not always patent it makes an adminis-
trative act only voidable and not void. However, a legal defect will result in the nul-
lity of an action if -
Grounds of Judicial Control 77

(i) it requires the performance of an act which results in a punishment or fine;76

(ii) it is legally impossible such as naturalization of a German citizen,77 or retirement
of a person who has never been a civil servant,78 or withdrawal of the status of a
public officer appointed for life after he has retired;19
(iii) it asks a person to do something which he is incapable of doing under private
law such as asking a land lord to remove a tenant immediately while under the con-
tract of tenancy the tenant is entitled to continue ;80
(iv) it requires a person to do something which depends upon the agreement or per-
mission of a third person or governmental organ and that person or organ refuses
such permission. 81

(ii) Factual Defects: The German administrative courts have unlimited jurisdiction
to look into the factual basis of an administrative action. They can assess themselves
and inspect the place of occurrence to find out whether the facts justify an action. If
they find such justification missing they will invalidate the action. Although the
courts do not place themselves in the position of an administrator, certainly they are
not bound by the Indian or English formula of 'no evidence' or American formula
of 'substantive evidence'.
Further, no one can be compelled to do a factually impossible act. Therefore,
any administrative act which requires a person to do an act which is factually im-
possible is void. 82 The factual impossibility refers to objective considerations based
on contemporary scientific, technical, or similar other grounds. It also covers those
cases where technically it may not be impossible to carry out an act but it is burd-
ened with so many difficulties that nobody considers it reasonable. This is appli-
cable to all kinds of administrative decisions including declaratory decisions. Thus,
for example, a decision referring to a non-existent person or object such as with-
drawal of the driving licence of a person who is already dead or order for the re-
moval of a construction which is no more in existence or official approval of a plan
which in material respects does not correspond with the facts of the locality is null
and void. However, subjective inability of a person such as his economic position or
similar other personal consideration does not result in prima facie nullity of an ad-
ministrative act although a person can always plead that to the extent the act does
not take into account his personal condition such as old age or illness or even finan-
cial position which makes the carrying out of the decision impossible, it is beyond
the object and purpose of the law and is therefore invalid. 83 Thus, for example, a de-
cision which asks an employer or a municipality to provide social welfare beyond
their means would be invalid.
Again, the factual errors, particularly of time and place in the recording of ad-
ministrative acts which cause an inconsistency between the specifications in the de-
cision and the reality are fatal and result in the nullity of that act. 84

(iii) Inconsistency with Good Morals: In common law no administrative decision can
be invalidated on the ground of its inconsistency with good morals so long as it is
within the legal limits of the powers of the administrative authority. In German law,
however, there is a well established legal principle that the administrative acts in vi-
olations of morals have no legal effect. Now the Law of Administrative Procedure
1976 expressly declares such administrative acts null and void. 85 Not only an act
78 General Principles of Judicial Review

which violates good morals but also an act which requires or enables a person to act
in contravention of good morals is void. It is not simply a violation of generally ac-
knowledged moral or ethical principles which makes an act void but also of such
principles which have been developed by the courts in the area of private law or un-
derlie the value standards of the Basic Law. Thus, for example, coercion to marry or
to accept a religious creed or taking of anti-Semitic measures will be a violation of
morals.
The acts which are based on pure arbitrariness because there exists no factual
basis for them; or which are issued in clear violation of the procedure in a state
based on the rule of law; or which cause gross injury to an individual by violating
the principle of 'Koppelungsverbot'; or which are based on immoral considerations
or pursue a disapproved purpose; or which are based on a misuse of a person's
need are all acts contrary to good morals. Thus a building proposal approved by a
city council under the exception clause of a Land building code was declared to be
null and void because the approval was given on the condition that the owner of the
proposal will surrender a portion of his land for purposes of traffic in favour of the
city council. The court held that tying the approval with a fiscal consideration in fa-
vour of the authority is inconsistent with good morals. 86 The decision came on a suit
of a neighbour. It is doubtful whether a neighbour in similar situation could ap-
proach a common law court.
In the same case the court also clarified that the question whether an adminis-
trative action is inconsistent with good morals is to be decided from an average
standard. It means that only material deviation from the prevailing legal and social
morals can be taken into account. Thus according to the existing decisions of the
Federal Court of Justice a legal transaction is contrary to morals only when it con-
flicts with the sense of decency of all fair and just thinking people. 87
Recently in the controversial Peep-Show Case the Federal Administrative Court
has held that. 88
The concept of good morals is indefinite and incomplete legal concept which
leaves neither discretion nor an area of free play to the administration and its
application is fully subject to judicial review. With it the law refers to the socio-
ethical values underlying the historical mode of life which are recognized as de-
cisive preconditions for order within legal community.
Applying that test it upheld an administrative act denying a licence for peep-shows,
among others, on the ground that such shows are inconsistent with good morals.
Applying the same test in a connected case it upheld an administrative act refusing
licence for operating a public house for prostitution. 89 Without disagreeing with the
test of good morals laid down in Peep-Show Case various administrative and higher
administrative courts have differed in their conclusions on the question of morality
of such shows in view of the fact that shows have been going on in almost all the
major cities of the country for quite a long time. 9o That creates a doubt about the au-
thenticity of that case.

(iv) Lack of Clarity: Section 37 of the Law of Administrative Procedure expressly

requires that the contents of an administrative act must be sufficiently clear and def-
inite. It means that to the addressees of the act as well as other concerned persons
References 79

and third parties the arrangement which sets out the object, sense, and the contents
of the act must be so complete, clear, and unambiguous that they may behave ac-
cording to it and also the enforcement or other concernced authorities may rightly
base on it their enforcement measures or other decisions. In particular it must be
clear about the subject-matter and the facts to which it refers, about the persons
from whom it requires something or to whom it grants or denies something, and
about what it determines or declares. Clarity is to be judged objectively from the
contents of the act and not from what worked in the mind of those who issued it. An
administrative act which lacks clarity is null and void.

(v) Wrong Means: Either the concerned parties may use unfair means such as de-
ceit, bribery or coercion in obtaining an administrative act or the administration it-
self may employ wrong means to achieve a lawful object. Deceit and bribery do not
make an act null and void and even its voidability will depend on statutory provi-
sions. However, coercion or threat results in the nullity of an act because an act of
the administrator under threat is not his act rather an act of the person who has
wielded threat or coercion on him. 91
The means employed by an authority may make administrative act voidable
though not void if instead of minimizing they increase the loss or damage or if they
are too severe or too lenient. For example, ordering the demolition of a house which
requires only repairs or vice versa. Observance of reasonableness is indispensable in
the choice of the means on which more will be said in the following chapter.

References

1 Below, pl04ff.
2 Ibid.
3 Art. 19(4). See Appendix I.
4 Even such grounds as 'error apparent on the face of the record' or 'absence of evidence' or 'sub-
stantial evidence' are related to jurisdiction.
5 For example, s 113 (2) of the Law on Administrative Courts expressly authorizes the courts to
substitute their own decision for that of the administrative authority if the challenged action re-
lates to benefit in money or kind or to a declaration. Further under cl. (3) they may also order
the grant of a benefit in addition to invalidation of an administrative action. For example, if de-
nial of licence by an administrative authority is found to be wrong by the court, it may not only
invalidate the order of denial but also order that licence be granted.
6 See below, p 117 ff.
7 See, for example, articles 12,13 and 32 of the Constitution of India.
8 See, Ram Jawaya v State of Punjab, AIR 1955 SC 549.
9 Basic Law, art 19(4).
10 !d, art 1 (3).
11 [d, art20(3).
12 [d, art 79(3).
13 VwGO, s 113.
14 Basic Law, art 1 (3).
15 The most notable American case in this respect is Yick Wo v Hopkins, 118 US 356 (1886). For
more cases see Gunther G: Constitutional Law, 708ff. (10th ed, 1980). For Indian cases see
80 General Principles of Judicial Review

Tripathi PK: Some insights into Fundamental Rights, 126ff(1972) and MChhaganlalv Greater
Bombay Municipality, AIR 1974 SC 2009.
16 EE & CLtdv StateofWB, AIR 1975 SC 266.
17 Goldberg v Kelly, 397 US 254 (1970). Also the companion case Wheeler v Montgomery, 397 US
280 (1970).
18 Decisions of 28 Jan 1952,4 VWR 830 (OVG Hamburg) and of 12 May 1953, 6 VWR 101 (OVG
Hamburg). See also decision of 8 Feb 1967,26 BVerwGE 153 and other cases cited under the
principle ob equality discussed below, p94ff.
19 Decision of 13 Aug 1953, VWR 483 (yGH Kassel).
20 Decision of 3 May 1973,42 BVerwGE 133; of 51 BVerfGE 386. The relevant fundamental right
is given in article 6(1) of the Basic Law. See Appendix 1.
21 Decision of7 June 1978, 56 BVerwGE 56. For the relevant constitutional provision see the Basic
Law, arts 5(1) and 21 (1).
22 Decision of23 Oct 1952, 2 BVerfGE 1,12. This requirement does not extend to the observance of
the value system of the Basic Law. See Goerlich H: Wertordnung und Grundgesetz (1973).
23 It has been held that the budgetary allocation is a sufficient prohibition against application of
funds for illegal purposes. But lack of budgetory appropriations does not justify refusal to fulfil
legal obligations. See decisions of 21 March 1958, 6 BVerwGE 282, 287 and of 11 Dec 1964, 20
BVerwGE lOt.
24 Decision of 30 July 1958,8 BVerfGE 122.
25 For example, a second instance authority should not deal with a matter unless it has already
been disposed of by the authority of the first instance, or the authorization to make subordinate
legislation should not be used to issue directions, or if oral proceedings are required proceed-
ings in writing alone will not be enough.
26 Decision of 4 June 1962 [1962) DVBI789 (BVerwG).
27 Whether customary law could be a sufficient basis for an administrative action, is doubtful. For
example, Maurer H in his book Allgemeines Verwaltungsrecht (1980) at p 73 observes that the
customary law does not suffice the requirement of law, while Wolff HJ, Bachof 0 in their work
Verwaltungsrecht [(9th ed., 1974) at p 183 observe that the customary law is a sufficient basis for
an administrative action, particularly in the field of public order. However, they agree that it has
lost much of its importance in so far as all states have made formal statutes to regulate police
power in that field. The Federal Constitutional Court on the other hand has accepted the special
status of pre-constitution customary law in so far as it does not conflict with the constitution:
decision of 14 Feb 1973,34 BVerfGE 293, 303.
28 See decisions of 28 Oct 1975, 40 BVerfGE 237, 248 (1976) and of 8 Aug 1978, 49 BVerfGE 89,
126.
29 Decisions of 12 Nov 1958, 8 BVerfGE 274, 325 and of 3 Feb 1959,9 BVerfGE 137, 147.
30 In its decision of 20 May 1955, 2 BVerwGE 114 the Federal Administrative Court has held that
reading articles 19, 20 and 28 of the Basic Law together the authorization of the administra-
tion with regulatory powers must be so limited and certain that it must be predictable as to in
which case, in what respect, and for what purpose the authorization may be used and what
would be the contents of any measure taken in pursuance of such authorization. See also
the decisions of 8 Aug 1978, 49 BVerfGE 89, 133 ff and of 27 Sept 1978, 56 BVerwGE 254,
256ff.
31 See Brown LN, Gamer JF: French Administrative Law, 121-22 (2nd ed, 1973) and Schwartz B,
French Administrative Law and the Common Law World, 89ff. (1954).
32 See Ossenbiihl F: Die Quellen des Verwaltungsrechts in Erichsen H-U, Martens W (eds) Allge-
meines Verwaltungsrecht, 59 (4th ed, 1979).
33 See Maurer, above, n27 at 76. For the opposite view see Wolff, Bachof, above, n27 at 182.
34 Decisions of 21 March 1958, 6 BVerwGE 282, 287; of 13 March 1977 [1978) DVBI 212
(BVerwG); and of 26 April 1979, 58 BVerwGE 45, 48.
35 See Maurer, above, n27 at 78.
36 Decision of 14 March 1972, 33 BVerwGE 1. Also see the decision'of29 Oct 1975, 40 BVerwGE
276 about the StPauli-News Case where also the court asked for making a legislation. For the
corresponding indian decisions see State of Maharashtra v Prabhakar Pandurang, AIR 1966 SC
424; Satwant Singh Sawhneyv APO, New Delhi, AIR 1967, SC 1836.
37 See the decisions of6Dec 1972, 34 BVerfGE 165; of 27 Jan 1976, 41 BVerfGE 251; of 22 June
References 81

1977,45 BVerfGE 400; of21 Dec 1977, 47 BVerfGE 46; of 15 Nov 1974; and of 14 July 1978, 56
BVerwGE 155.
38 On the development of law in the matter of university admissions see Becker P, Hauck P: Die
Entwicklung des Hochschulzulassungsrechts his 1982, [1983] NVwZ 77, 204, 328, 589.
39 Compare, decision of 28 Oct 1975, 40 BVerfGE 237.
40 VwGO, s 68(1).
41 ]d, s 113(1). A somewhat open question is whether procedural decisions of the administration
are part of law or policy. Recent decisions of the Federal Constitutional Court, however, depict
a tendency of treating these matters, particularly in the area of basic rights, as matters oflaw and
not policy. See Goerlich, H: Grundrechte als Veifahrensgarantien, 358-39 and n61 (1981).
42 See below, p 125.
43 See above, n 5.
44 de Smith SA: Judicial Review ofAdministrative Action, 97 (4th ed, 1980 by Evans JM).
45 VwGO ss 113 and 114.
46 Compare, Wade HWR: Administrative Law, 220 (5th ed, 1982) who holds that the procedural
safeguards 'are normally regarded as mandatory, so that it is fatal to disregard them'. For a more
emphatic assertion on the same lines in relation to the requirement of reasons see Rajamallaiah
v Anil Kishore, AIR 1980 SC 1502, at 1508.
47 de Smith SA, above, n38 at 143.
48 VwVfG, s46.
49 See above, p42.
50 The two cases so enumerated are given in s 44(2) of the VwVfG which are: (i) administrative acts
not disclosing the authority who has taken it, and (ii) administrative acts not taken in the form
prescribed in law. See above, p42 and Appendix II.
51 See Wolff, Bachof, above n27 at 432.
52 Decision of 15 June 1960, 11 BVerwGE 18.
53 The Federal Administrative Court in its decision of 29 Aug 1968, BVerwGE 185, 187 has left the
question open. See also Badura: Das Verwaltungsveifahren in Erichsen, Martens (eds), above,
n32 at 317.
54 Decision of 8 Feb 1967, BVerwGE 145, 148.
55 Decision of 2 Sept 1963, 16 BVerwGE 289, 291.
56 Decisions of 10 April 1968, BVerwGE 282 and of 9 Nov 1966, 17 BW VGHE 120 in [1967]
ESVGH. Also Martens J who says that the courts cannot know in what manner the authority
would have exercised its decision had it given a hearing to the parties, Die Rechtsprechung zum
Verwaltungsveifahrensrecht, [1982] NVwZ 13, 15.
57 See Kopp FO: Verwaltungsveifahrensgesetz, 545 (2nd ed., 1980).
58 See decisions of 14 Aug 62, 14 BVerwGE 342, 346 and of 10 April 1968, 29 BVerwGE 282.
59 Decision of 28 Nov 1957,6 BVerwGE 33.
60 Decision of 22 Sept 1958 [1959] DVBI 72 (OVG MUnster).
61 Decisions of 20 March 1966,24 BVerwGE 23, 29 and of 21 Dec 1967, 29 BVerwGE 25.
62 Decision of 1 July 1966, 24 BVerwGE 264, 267.
63 Kopp, above, n 57 at 546.
64 See de Smith, above, n 44 at 145 -146 and 197 - 98.
65 Wolff, Bachof, above, n27 at 305. Also see Badura, above n53 at 315 where he observes that
whether an administrative act in violation of the procedural provisions is challengeable or not it
is certainly illegal.
66 See s 14 of the Federal Law on Civil Servants 1953.
67 See the Basic Law, arts 15, 18 and 21.
68 See the decisions of 18 Dec 1981 and of 16 April 1981 [1982] NVwZ 508 and 510 respectively of
the VGH Munchen where the court has held that an administrative authority or person is dis-
qualified to participate in administrative proceedings whose participation is likely to influence
the result of the proceedings.
69 Decision of20 Oct 1948 [1949] DV 76 (HessVGH). The only situation in which the decision may
not result in nullity may be where considering the subject-matter of the dispute the participant
has excluded himself from a benefit. See Kopp, above, n57 at 517.
70 VwVfG s 44(3) No 1. Also decision of 2 June 1976, 22 BayVBI 726 (Bay VGH).
71 VwVfG ss3(1) No1 & 44(2) N03. Also the decision cited in n 70.
82 General Principles of Judicial Review

72 Decision of25 Aug 1935, 3 BVerwGE 11.

73 See Forsthoff E: Lehrbuch des Verwaltungsrechts 1.232-33. (10th ed, 1973).
74 Decision of 4 Oct 1972, 17 BWVBI91.
75 Wolff, Bachof, above n27 at 431.
76 VwVfG s 40(2) No.5.
77 Decision of 21 Nov 1960, 13 VWR 283 (BayVGH).
78 Decision of 21 June 1951, 2 BGHZ 317.
79 Decision of 3 July 1953, 7 VWR 231 (WBVGH).
80 Forsthoff, above, n 73 at 248.
81 Kopp, above, n57 at 514-15.
82 VwVfG s 44(2) No4.
83 Kopp, above, n57 at 513.
84 Forsthoff, above, n 73 at 250.
85 VwVfG s 44(2) No6.
86 Decision of 7 Oct 1975,22 BayVBl 237.
87 Id. at 238.
88 Decision of 15 Dec 1981 [1982] NJW 664 (BVerwG).
89 Decision of 16 Dec 1981 [1982] NJW 665 (BVerwG).
90 See, for example, decisions of 14 April 1982 [1983] NVwZ 175 (VG Miinchen); of 11 June 1982
[1983] NVwZ 176; and the decisions cited and discussed in Kirchberg C: Zur Sittenwidrigkeit
'von Verwaltungsakten. [1983] NVwZ 141, 142.
91 Forsthoff, above, n 73 at 242.
Chapter 6
Judicial Review of Discretionary Powers

Discretionary powers of the administration are as much an important phenomenon

in German law as they are in common law or in any other legal system of today.
They are no longer considered inconsistent with the notion of a just society. On the
contrary there is a growing realization that such powers are necessary to achieve a
just social order and to make the rule of law a positive reality. Of course, that does
no mean that the administration must be given unlimited and unnecessary discre-
tion, nor does it mean that the administration must be free from all limitations in the
exercise of the discretion. 1 Discretion does not mean arbitrariness. In the words of
Lord Halsbury:2
'discretion' means when it is said that something is to be within the discretion of
the authorities that that something is to be done according to the rules of reason
and justice, not according to private opinion: Rooke's Case: according to law
and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regu-
lar. And it must be exercised within the limit, to which an honest man competent
to the discharge of his office ought to confine himself.
These words spoken at the close of the last century referring to the Rooke's Case 3
decided in 1598 make it quite clear that the true concept of discretion and the legal
limits subject to which it could be exercised had been well established in common
law before the end of the sixteenth century which have been further clarified and
strengthened in the course of time.
The position in German law is not in any way different. Through a series of judi-
cial decisions and juristic writings since the beginning of this century it has become
a well established proposition of law that in a constitutional state based upon the
rule of law discretion of the administrative authorities does not mean a discretion
free from all legal limits. It is judicious discretion to be exercised for the purpose it
is granted and the legal limits which apply to its exercise have not to be crossed. 4
These propositions have now been enacted in the Law of Administrative Procedure
1976 and the Law on Administrative Courts. 5 Moreover, German Basic Law does
not permit conferment of unlimited discretion on the administrative authorities. Let
us see these constitutional limitations before we take up the grounds on which the
courts may review the exercise of discretion.
84 Judicial Review of Discretionary Powers

A. Constitutional Limitations

Due to Parliamentary supremacy no legal limits exist in England on the conferment

of discretion on the administrative authorities. But that is not true of the other com-
mon-law countries whose written constitutions determine and regulate the compe-
tence of the legislature, particularly through the enumeration of the basic rights of
the individual. Thus since the early years of the commencement of the constitution
the courts in India have established that an unguided discretion conferred upon the
administrative authorities may not be consistent with the basic rights guaranteed in
part three thereof and have accordingly invalidated such conferment in several
cases.6
The Basic Law imposes similar limitations upon the legislatures in Germany
and it has been authoritatively pronounced by the Federal Constitutional Court in
more than one decision. Thus in a decision given in early 1959 the Court stated?:
The rule of law requires that the administration can interfere with the rights of
an individual only with the authority oflaw and that the authorization is clearly
limited in its contents, subject-matter, purpose and extent so that the interfer-
ence is measurable and to a certain extent is foreseeable and calculable by the
citizen.
The Court, however, found that these conditions were satisfied by the impugned
provisions of the Law Against Unfounded Non-utilization of Import Licence which
granted discretion to the administrative authorities to impose fine in case of non-
utilization of licence. Prior to this a law that made the planting of vine shoots sub-
ject to an official permit, without indicating the conditions under which the permit
was to be granted, was declared unconstitutional because it failed to provide stan-
dards for the grant or refusal of permit. 8 Subsequently the Court found the Laws
Relating to the Regulation of Public Meetings passed during the National Socialist
regime to be unconstitutional because they left the grant of permission to hold such
meetings to the subjective satisfaction of the police authorities. Repeating its earlier
stand the Court said that if the legislature finds it necessary that the exercise of a
fundamental right should be subject to a prior permission of the police authorities
then it must lay down the conditions for the grant or rejection of such permission.
The grant or rejection of the permission cannot be left to the subjective discretion of
the administrative authorities. 9
In a recent case the Court sticking to its legal stand expressed above has, how-
ever, upheld the provision of the Law on the Peaceful Use of Nuclear Energy and
Protection Against its Dangers which, among other grounds for the grant of permis-
sion to establish an atomic plant also provided for the 'overwhelming public inter-
est'. The Court held that in view of the scientific and technological complexities of
the atomic energy, the international agreements and repercussions, and other guide-
lines provided in the law a wider discretion was not inconsistent with any constitu-
tional requirement. lO
While, as is apparent from these and several other decisions, the Court has uni-
formly and consistently insisted that the legislature must observe certain constitu-
tionallimits in granting discretion to the administrative authorities, it has not insist-
ed upon a rigid criterion. Normally it will uphold a wide grant of discretion even in
Grounds of Judicial Control 85

uncertain legal terms so long as looking to the subject-matter, contents, purpose,

and scope of the law it does not turn out to be a 'vague blanket clause' in favour of
the administration to do whatever it likes. l1

B. Grounds of Judicial Control

As has been noted above, unlike England or India but very much like the United
States, the power of judicial review has been statutorily recognized in Germany.
Thus, while Sect.113 of the Law on Administrative Courts 1960 empowers the
courts to examine the legality of the administrative acts in general Sect. 114 autho-
rizes them to do so specifically with respect to the discretionary acts of the adminis-
tration. It says:
So far as the administrative authorities are authorized to act in their discretion
the courts also examine whether the administrative act or its refusal or omission
is illegal because the statutory limits of the discretion have been exceeded or be-
cause the discretion has not been exercised for the purpose of the authorization.
Further, Sect. 40 of the Law on Administrative Procedure 1976 lays down:
If ~n administrative authority is authorized to act in its discretion, it has to exer-
cise its discretion in consonance with the purpose of the authorization and the
legal limits of the discretion have to be observed.
The grounds of examination laid down in these provisions are not very different
from those in common law as it prevails in England or India for the judicial review
of administrative discretion. But the theoretical limits set by the principle of ultra
vires on the review jurisdiction of the common law courts from which the German
courts are free, cannot be ignored. Accordingly, in common law whether an illegali-
ty of discretionary action results from the failure to exercise discretion or from its
abuse both fall within the category of ultra vires exercise of discretion. In German
law, however, an excess of discretion is distinguishable from an abuse of discretion.
While the excess of discretion is equivalent to ultra vires exercise of power an abuse
of discretion is an illegality within the granted powers. In the former case the ad-
ministrative authority is said to have exceeded the outer limits laid down by the law
while in the latter it commits an illegality by intentional or mistaken non-observance
of the internal legal limits set for the exercise of the discretion. Abuse of discretion
may be either objective or subjective. An objective abuse results from the non-ob-
servance or violation of the constitutional or other legal principles such as equality,
reasonableness, or value judgments. A subjective abuse is a result of an exercise of
discretion for a wrong purpose or when its exercise is not justified by the considera-
tions on which it is based. 12
Subject to some of these theoretical considerations the judicial review of discre-
tion and the various grounds on which it can be based is as much the creation of
courts in German law as in common law. Therefore, classifying a ground of review
into one category or another may be as difficult a job in the former as in the latter
and the writers on administrative law may have their own preferences in this matter.
Here we may follow the broad classification laid down in Sect. 114 of the Law on
86 Judicial Review of Discretionary Powers

Administrative Courts within which we may fix up illustrative cases under different
heads.

1. Excess of Discretion

Excess of discretion may occur in the most obvious form when the administrative
authority does something which it is clearly not authorized to do under the enabling
law such as imposition of a fine beyond the upper limit set by law. But such obvious
excess is rare. Normally excess occurs in subtle form such as taking of a decision
never contemplated within the law. Thus, for example, a decision of a city authority
to keep a watch and charge fee for that from the owners of vehicles in a public park-
ing place was held to be in excess of the discretion of the administrative authority to
regulate road transport under the Road Transport Code in so far as that law gave no
authority to create such parking places. 13
Another form of excess is the failure to exercise discretion. An administrative
authority may fail to exercise its discretion either because it does not exercise it due
to idleness, or it thinks that it is under no obligation to exercise it, or it mistakenly
considers itself bound by some other law or administrative order. Failure to exercise
discretion may also arise from the misconstruction of the legislation which grants
the discretion. The authority may consider that it has no discretion in the matter.
Thus the Federal Administrative Court has held that if the administrative authority
thinks that it is legally bound to do something while actually it lies within its discre-
tion then its action is illegal and it must again consider the matter in its free discre-
tion. 14 Further, conferment of discretion implies consideration of each case sepa-
rately and not that each case or all cases of a particular class are decided in the fixed
manner without regard to the facts of individual cases. 15 But that does not exclude
laying down of administrative guidelines so long as those guidelines do not exclude
the consideration of exceptional circumstances of individual cases. Thus in a case
where the plaintiff - a civil servant in the justice department of a Land - challenged
the rejection of his application for the grant of long leave to pursue legal studies on
the ground that the defendant Land had failed to exercise discretion in so far as it
had a general policy of granting long leave only in case of illness or recovery from
illness, the Federal Administrative Court held that the failure to exercise discretion
has to be distinguished from the observance of guidelines or administrative practice
in the exercise of discretion. 16It observed: 17
Of course an applicant has a claim of true discretionary decision on the consid-
eration of the facts of his case. However, that does not prevent the administra-
tive authorities from exercising the discretion in certain group of similar cases
according to some general principles binding themselves to that extent by guide-
lines or definite administrative practice so that as a rule exceptions are not total-
ly excluded but they are permissible only in exceptional circumstances ... Not
only such application of discretion through the observance of a definite admin-
istrative practice so far as it is consistent with the purpose underlying the grant
of discretion is sensible but is also expected for the preservation of the principle
of equality which can be achieved only by treating the similar cases similarly...
If the administrative authorities bind themselves in this admissible form in the
Abuse of Discretion 87

exercise of discretion then as a matter of rule the exercise of discretion becomes

challengeable if the authorities in a particular case differ from that practice.
In another case the Court held that the laying down of administrative regulations by
the employer for the exercise of discretion by the competent body in the matter of
grant of welfare services to the employees is not prima facie inconsistant with the
legislative grant of discretion. The court has to examine whether the regulations fall
within the discretionary competence of the employer and whether they are applied
in accordance with the principle of equality.18
However, in a case under Sect. 38 (2) of the Law for the Protection of Working
Children of 1960 which granted power to the industrial supervisory authorities to
grant special permission for the employment of children below 18 years if they
found that the employment was not dangerous for the health and mental develop-
ment of the child, the Court held that it is illegal on the part of the administration to
form a general policy not to grant any permission for the employment of children in
piece or assembly work because any exceptions in that respect are likely to be mis-
used. 19
Again, as in common law so also in German law a discretionary decision of a
lower authority which under the law only the higher authority can take amounts to
excess or failure to exercise discretion. 20 Illegality of an administrative action aris-
ing from non-exercise of discretion may be cured under German law if the discre-
tion is exercised before the conclusion of the objection proceedings before the ad-
ministrative authority but not after the conclusion of that process. 21
Compared to the categories of failure to exercise discretion developed in com-
mon law the categories in German law are less. Among any others, one important
reason for this is the principle of equality which is discussed below. Moreover, the
German law recognizes the reduction of discretion to zero (Ermessensreduzierung
auf Null). It means that inspite of the theoretical choice given by the discretionary
power to act one way or the other in individual concrete case only one course will
be legal. In that case the authority is under a duty to follow only that course. For ex-
ample, although the inspectors of buildings have full discretion to intervene if the
owner of a building misuses it but in the case of material danger to the legally pro-
tected important interests of neighbours by such misuse they are under an obliga-
tion to intervene. 22 Similarly, although the grant of special permission for the use of
streets lies in the full discretion of the police authorities, in view of the constitution-
al provisions about the political parties and elections in articles 21 and 38 of the Ba-
sic Law they are under an obligation to grant such permission to political parties at
the time of elections23 though not in non-election times. 24 The common law courts
have not yet used this device for restricting the discretion of the administrative au-
thorities. Nor would they probably tolerate such reduction of their discretion by the
administrative authorities because it might amount to failure to exercise discretion.

2. Abuse of Discretion

The forms of abuse of discretion as much overlap and run into one another in Ger-
man law as they do in common law. It is very difficult to separate them and put one
case of abuse under one form rather than the other. The one and the same case may
88 Judicial Review of Discretionary Powers

be characterized as an example of abuse of discretion either because the discretion

has been used for an unlawful purpose or its exercise is based on improper motives
or bad faith or that the irrelevant considerations have been taken into account in its
exercise. Nevertheless, the various forms of abuse of discretion are capable of being
deduced from innumerable judicial decisions and discussed separately subject of
course to the imperfections in-built in this process and the nature of the subject-
matter.
Most of the forms of abuse of discretion in German law are the same as in com-
mon law though the emphasis may be different. But there are some like the equality
of treatment which has drawn almost no attention in English law while it is very
prominent under the German law. More differences we can notice in the course of
discussion that follows.

(a) Principle of Verhiiltnismiiftigkeit (Reasonableness)

Literally Verhiiltnismiij3igkeit may be translated as proportionality. But proportion-

ality does not convey the true meaning and import of the German word 'Verhiilt-
nismiij3igkeit'. The closest but not an exact correspondence can be found in the
word reasonableness and therefore the principle of Verhiiltnismiij3igkeit has a close
but not an exact correspondence in the common law principle of reasonableness
whose antecedents are traced back to late sixteenth century and has recently
emerged as an independent and important ground for examining the validity of ad-
ministrative actions. The origins of the principle of Verhiiltnismiij3igkeit are not that
old. Its earliest traces are found in the judicial pronouncements of late nineteenth
century in which the Prussian Supreme Administrative Court invoked it to check
the discretionary powers of the police authorities in the realm oflaw and order mat-
ters. 25
Like the common-law courts the German courts did not base the principle creat-
ed by them on any implied legislative prohibition against unreasonable exercise of
powers but on a more fundamental and scientific basis of ends and means or cause
and effect relationship.26 Accordingly, in its first stage the principle insisted that out
of various means available to achieve an end the administrative authorities must use
the most suitable. But the most suitable means could not necessarily be the one
through which the end could be achieved with the least injury to an individual.
Therefore, the courts added a second limb to the first which required that out of
several effective means to achieve an end the one which causes the minimum injury
to the individual must be employed. A third limb was developed only recently after
the second world war which requires that the intrusion into the rights of an individ-
ual must not be out of proportion to the aspired ends. Thus the principle in its pre-
sent form consists of the three limbs or sub-principles and in short requires that a
means or measure must be suitable and necessary for achieving an aspired object
and that the means and end stand in a reasonable proportion.
Before explaining the application of the three limbs of the principle, it may be
mentioned that the principle in its present form is not confined only to administra-
tive measures whether regulatory or benefactory. It extends far beyond. It has
acquired a constitutional status and applies to legislative measures just as it applies
Abuse of Discretion 89

to the administrative. According to a decision of 15 December 1965 of the Federal

Constitutional Court the principle is a consequence of the constitutional state or the
rule of law and the express mention of the fundamental rights which, as an expres-
sion of the individual's claim for freedom vis-a-vis state power, can be restricted on-
ly to the extent to which it is indispensable for the protection of public interest.27 In
some subsequent decisions it has held that the principle is an overriding rule for the
guidance of all state activities ;28 it must be observed by the courts in settling the con-
flicting interests under the provisions of the private law;29 its application cannot be
restricted to any particular branch or sphere of law;30 and it has to be always ob-
served in the interpretation and application of law. 31
The corresponding principle of reasonableness in common law can certainly not
make the claim of such wide application. In England, sovereignty of Parliament
leaves no scope for its application to parliamentary legislation and even its applica-
tion to subordinate legislation is doubtfu1. 32 In India certainly the legislation is sub-
ject to the constitution but outside the area of those fundamental rights which are
expressly subjected only to reasonable restrictions 330r to which the requirement of
reasonableness has been extended by the courts,34 there exists no general principle
of reasonableness to which either the legislative or the executive laws must com-
ply.35 Moreover, compared to the German principle of Verhiiltnismiij3igkeitthe com-
mon law principle of reasonableness is less objective and more abstract. The stan-
dard of reasonableness has always been a matter of controversy and even about the
most agreeable notion of 'reasonable man' Lord Hailsham has recently said that the
reasonable persons can perfectly reasonably come to opposite conclusions on the
same set of facts without forfeiting their title to be regarded as reasonable. 36 It does
not mean that the principle of Verhiiltnismiij3igkeit is absolutely free from variations
and provides a ready-made solution to all problems that need its application. The
main consideration is that the suitability, necessity and proportionality of means to
achieve an end is much more objective a criterion subject to proof or disproof than
the nebulous notion of reasonableness. The Supreme Court of India in interpreting
the reasonableness of restrictions on the rights guaranteed in article 19 (1) of the
Constitution has in some opinions come quite close to the principle of Verhiilt-
nismiifJigkeit 37 but no specific instance is available of the same standard having
been applied in other spheres of law.
The three limbs of the principle of Verhiiltnismiij3igkeit are interconnected and
overlap. But they are still exclusive in the sense that each one of them must be satis-
fied for the validity of an administrative action. Their scope and application may be
explained with reference to some judicial decisions.

(i) Principle of Suitability: In the enforcement of a law the administrative authori-

ties can employ only such means which are suitable for the accomplishment of the
purpose of that law. The suitability of a measure has to be decided from objective
standards and not according to the subjective judgment of the administrative au-
thority. An administrative measure which does not serve or is contrary to the pur-
pose of law is clearly unsuitable and therefore impermissible. Equally unsuitable is
a measure which is legally or factually impossible to be carried out for the accom-
plishment of the object of law. Thus, for example, an administrative direction which
prescribes the installation of a plant at a place where according to the natural quali-
90 Judicial Review of Discretionary Powers

ties of the land it is not possible or feasible to do so is an illegal direction. 38 Simi-

larly, a person cannot be asked to do something which he is not competent to do un-
der the private law. Thus, one of the several co-owners of an installation cannot be
asked to remove the installation. 39 Neither can a tenant be asked to make alterations
in the building under his tenancy.40 Equally impermissible is a command or prohibi-
tion whose observance would violate the provisions of any public law. Thus, for ex-
ample, to prevent disturbance and noise in the neighbourhood the police cannot or-
der the owner of a dogs' house to keep the dogs inside the closed rooms because the
observance of such order would be inconsistent with the law relating to the protec-
tion of animals. 41
(ii) Principle of Necessity: It may also be called the principle of mildest means. It re-
quires that out of several suitable means available for achieving the object of law
only those should be pursued which in case of regulatory measures cause minimum
injury to the individual and in case of beneficial measures cause minimum loss to
the community.42 Thus, for example, to control disturbance caused by the use of an
inn the innkeeper need not be fined or taxed or penalized if the disturbance can be
effectively controlled by advancing the closing hours. 43 But restriction on the plying
of motor vehicles in some streets of a town during limited hours in night for a few
months with a view to provide undisturbed nights to the tourists is not unreason-
able. 44
For the application of the principle it is necessary that there exist several suit-
able means to achieve the end of law. In the absence of such choice the question of
application of a milder means does not arise. Thus in interpreting Sect. 4 (1) of the
Road Traffic Code of 1952 which authorizes the police to withdraw the driving li-
cence of a person who has proved himself unsuitable to hold it, the Federal Admin-
istrative Court held that a partial withdrawal of the licence could not be insisted be-
cause the purpose of the law to protect people against the risk of being overrun by
the unsuitable drivers of the power driven vehicles could be achieved only by total
withdrawa1. 45
(iii) Principle of Proportionality: The principle of proportionality or of prohibition
against excessiveness is also called the principle of VerhiiltnismiifJigkeit in the nar-
row sense. It requires a proper balancing between the injury to an individual and
gain to the community caused by an administrative measure and prohibits those
measures whose disadvantages to the individual outweigh the advantage to the
community. In determining this proportionality courts normally give weight to the
administrative decision and would interfere only when a clear case of dispropor-
tionality is made out. Thus the court refused to interfere with the decision of the city
authorities merely because in imposing fee on the plaintifffor putting up hoardings
they had failed to establish an exact equivalence between the burden on the plaintiff
and the benefit to the community.46 Similarly, if the law is quite clear about a mea-
sure the courts would refuse to interfere with it even if the apparent injury to an in-
dividual outweighs the apparent gain to the community. Thus, for example, asking
for the demolition of an illegal construction is not a violation of the principle of
VerhiiltnismiifJigkeit. 47 The courts have to recognize that the balancing of interests
has to be done not only in the context of one case but in the context of law and or-
der situation in genera1. 48
Abuse of Discretion 91

What the principle of proportionality insists upon is that the administrative au-
thorities cannot exercise their discretion as they like. They are under an obligation
to make a judicious balance between the community and individual interests and
must abstain from taking an action which will put material burdens on the existence
of an individual. 49 Thus the administrative refusal to issue a character certificate es-
sentially needed for enrollment in a university was invalidated by the court al-
though the authorities were competent to do so in case criminal proceedings were
pending against an individual. In this case the criminal proceedings were pending
against the plaintiff but the court held that the evil consequences of refusal which
deprived the plaintiff from pursuing a vocation of his choice guaranteed in arti-
cle 12 (1) of the Basic Law far exceeded any consequential benefit to the society.50
Several recent cases on the expulsion of foreigners from Germany on ground of
their criminal conviction furnish further examples of the application of the princi-
ple of VerhiiltnismiijJigkeit where the courts have insisted that in exercising their
discretion to expel the foreigners on the ground of their criminal convictions the im-
migration authorities must observe that principle. In a case decided on 26 February
1980 the Federal Administrative Court said: 51
The principle of VerhiiltnismiijJigkeit which substantially restricts the discretion
in the matter of expulsion must be observed. After considering the facts and cir-
cumstances of each case the harm associated with the expulsion must not be dis-
proportionate to the aimed result, which includes that between the concrete
facts of the case, particularly in terms of kind and severity, and the conse-
quences, i. e., between the ends and the means there must exist no dispropor-
tionality.
In this case, however, the court found that considering the past behaviour of the
plaintiff and his subsequent conviction for causing injury to a co-worker resulting in
his death the decision to expell him and the consequent impact of it on the behav-
iour of other foreigners in the observance of law and order there was no violation of
the principle of VerhiiltnismiijJigkeit. In two other cases applying the principle to the
rejection of permission to the plaintiffs to continue to stay in Germany on ground of
their conviction for minor traffic violations during their long stay in that country the
court invlidated the decision of the immigration authorities. 52 It held that the princi-
ple of VerhiiltnismiijJigkeit must be observed in the matter of refusal of stay permit
on the ground of conviction and in considering the proportionality of the disadvan-
tages associated with the refusal and the aimed consequences the authorities must
examine the circumstances of each case in terms of length of stay, economic and so-
cial integration of the person, his economic standing, his contacts in his native land,
his overall behaviour, etc.53
Thus in an area where the common-law courts have generally adopted a policy
of non-interference with the administrative decisions the German courts have insist-
ed on strict observance of fairness or reasonableness. 54
The law also requires that in the process of balancing the individual and social
interest to establish a proportionality between the loss to the one and the gain to the
other the administrative authorities must also consider the incidental effects of their
action, particularly on the third parties. 55
Non-observance of the principle of VerhiiltnismiijJigkeit results not only in the
invalidity of the administrative decision but also becomes a ground for claiming
92 Judicial Review of Discretionary Powers

damages from the state if the concerned authority knew or could have known that
its action violated that principle. 56

(b) Improper Purpose

An administrative power can be exercised only for the purpose for which it is grant-
ed. Any exercise of it for a different purpose is illegal. Common law furnishes many
examples where the exercise of discretion has been invalidated by the courts be-
cause it was used for a purpose alien to the law by which it was grantedY The Ger-
man law, as we have already noted, expressly requires that the discretion must be
used only for the purpose for which it is granted and the courts may examine
whether it has been so exercised. 58 Besides, in a number of cases the courts have
held that the administrative authorities must carry out only that purpose for which
the discretion has been granted and not a purpose not covered under the grant. 59
Thus in a decision delivered on 1 Oct. 1909 the Prussian Supreme Administrative
Court held that Sect. 60 of the Commercial Code of 1900, which authorized the city
police authorities to deny permission to the tourist and travel agencies to play music
under certain conditions did not authorize them to do so in order to achieve an ob-
ject which lay outside the scope of the police law such as better profit to the city es-
tablishment rather than non-disturbance of the residents. 6o Later in a case the Fed-
eral Administrative Court held that the provisions of the same law authorizing in-
spection of the industries for the purposes of controlling their reliability could not
be used for the purpose of criminal investigations. 61 In another case the same court
held that prohibition on parking in order to facilitate the parking of vehicles of the
diplomats was impermissible under the Road Traffic Code.62 The Law empowers
the police authorities to prohibit parking in certain areas and also to make excep-
tions on applications. But a prohibition only to favour a definite class of people
goes outside the purpose of authorization. Similarly, the provisions of the Road
Traffic Code for summoning a driver of power driven vehicles for traffic instruc-
tions required for the purpose of brushing up the knowledge of the driver about the
road traffic law or for strengthening his consciousness of responsibility towards the
security of other road users cannot be used for the purpose of calling a driver for
seldom and minor violations of traffic rules. 63
On the other hand in a number of cases the courts have held that the discretion
of the immigration authorities under the Law on Aliens to expell an alien or to deny
him permission to continue his stay in Germany on the ground of his criminal con-
viction is well within the purpose of that law if it is exercised with the purpose of de-
terring other aliens in Germany from indulging in criminal activities. 64

(c) Irrelevant Considerations

As in common law so also in German law a discretionary administrative decision is

illegal if either it is based on irrelevant considerations or is taken in disregard of the
relevant considerations. An inappropriate assessment of the relevant considerations
is also equally fatal. Thus in a case decided on 2 July 1963 the Federal Administra-
Abuse of Discretion 93

tive Court held that the denial to a civil servant of superannuation benefits on finan-
cial considerations was illegal. Under the law the state authorities had full discre-
tion to deny an application for pension of a superannuated civil servant considering
his service background but such denial on the ground that the servant had his own
income and that the grant of pension to him will be an additional burden on the
state budget was bad because it was based on irrelevant considerations.65 However,
a person cannot complain of misuse of discretion if in the matter of grant of citizen-
ship the concerned authorities even after the satisfaction of minimum conditions for
such grant hold that for political, economic, and cultural reasons such grant is not
desirable because the law gives wide discretion to the authorities to take into con-
sideration such grounds also. 66 Similarly, allotment of available limited space for
putting up stalls during a national festival to a person in preference to the plaintiff
on the ground of established trustworthiness of that person and the attractiveness of
the stals and the balance in festival provisions is not a misuse of discretion. 67
Insisting upon the taking into account of all the relevant considerations the Fed-
eral Administrative Court in a case decided on 3 May 1973 held that in expelling a
foreigner on the ground of his criminal conviction the immigration authorities must
consider the fact that the foreigner is married to a German who has a fundamental
right for the protection of her marriage and family under article 6 (1) of the Basic
law. The impact of expulsion on this fundamental right is a very important consid-
eration to be weighed in the exercise of discretion. 68 In another case of expulsion of
a foreigner on the ground of his conviction for a minor offence for which he was
fined DM 200,- the court held that the authorities should not exercise their discre-
tion to expel convicted persons blindly. They must also consider other factors such
as the length of stay of the foreigner in Germany, job of his wife, possibility of their
establishing a home in their native land, the change in the behaviour of the person,
and other new relevant facts in support and against the expulsion.69 In another case
of refusal to extend the stay permit of a Jordanian doctor staying in Germany on the
ground that the underlying policy of the Federal Law on Medical Profession was
that the doctors from the developing countries should return to their countries on
completion of their training was held to be based on a relevant consideration. 7o
In yet another case a school mistress employed in one Land was sent to another
Land for further training under an agreement that after the completion of her train-
ing she would return to her original job. But during the training she married a man
in the latter Land and for that reason could not fulfil her agreement to return. The
former Land asked her to deposit a big sum of money for breach of agreement
which she challenged. It was held that in fixing the sum the authorities must consid-
er the fundamental right to marriage and family under article 6 (1) of the Basic Law
and also the fact whether the person concerned has employed herself or himself in a
similar job in the service of another Land.71 In a more recent case the court invali-
dated the decision of a loan-sanctioning-authority for the construction of house on
the ground that in denying priority to the plaintiff in the grant of loan the authority
had not taken into consideration the number of the children in the family as re-
quired by the Housing LaW.72
94 Judicial Review of Discretionary Powers

(d) Objectivity

All administrative decisions must be based on objective considerations and person-

al subjectivity of the deciding authority such as personal enmity or friendship, eco-
nomic interests, party affiliations, etc., should not play any role in the decision-mak-
ing process. Such subjectivity which may be covered under bad faith or bad motives
or unfairness in common law not only makes an administrative officer liable to dis-
ciplinary proceedings under the German law but also makes the administrative ac-
tion illegal. Thus, for example, the administrative authorities while granting permis-
sion of certain purchases to the local traders cannot deny similar permission to a
trader simply because he comes from outside.73 However, allotment of space for
putting up stalls in an annual city fair to local traders in preference to outside
traders because of limitation of space is not illegaU4 But the police authorities can-
not prohibit camping or putting up of tents in the name of protection of nature
while in reality they have in mind the profits ofthe innkeepers. 75 Similarly, the po-
lice authorities cannot ask the newspaper vendors to remove their personal stalls
while leaving stalls rented by the city administration untouched in order to increase
the income of the administration. 76

(e) Equality of Treatment

Policy considerations and guidelines are not altogether excluded in common law al-
so in the exercise of discretion so long as the possibility of considering the peculiari-
ties of any case is not excluded. But no specific attention is paid to the equality of
treatment in the exercise of discretion. We see all emphasis against any fetters being
imposed on discretion through self-imposed policies or rules but find no mention of
any impact on equality of treatment by unguided exercise of discretion. The Consti-
tution of India guarantees the fundamental right to equality and, as has been ob-
served above, this right operates as an important limitation upon the legislative
grant of discretion. From time to time the courts have also emphasized that exercise
of discretionary powers by the administrative authorities may be invalidated on the
ground of unequal treatment, but there are only few recent decisions where this dic-
tum has been specifically applied. 77 In German law, on the other hand, equality of
treatment in the exercise of discretionary powers is as important, if not more, as the
individualization of justice through discretion. As has been noted the administrative
authorities in the exercise of discretion cannot act in a manner as if they had no
discretion but at the same time they can also not ignore the principle of equality of
treatment embodied in article 3 ofthe Basic Law. The principle of equal treatment is
not a negation of discretion but it requires that the administrator must exercise his
discretion with equality.
By consistent observance of a practice the administrator creates a self-imposed
limitation upon himself from which he cannot deviate except for sufficient reasons.
Such limitation is normally the result of administrative directions or rules.78 In the
words of the Federal Administrative Court, if an administrator applies the adminis-
trative norms regularly in the exercise of discretion then he violates the principle of
equality in case he does not apply them in all other similar cases. A citizen whose
Abuse of Discretion 95

case has been decided differently has a claim to allege that in his case the adminis-
trator has deviated from the norms of practice without sufficient grounds.?9 Invali-
dation of discretionary decisions by the courts on such an allegation of the citizen
fully testifies this proposition.
Thus it has been held that a condition put upon the owner of a newly construct-
ed house with respect to the use of that house which is not applicable to other
owners under similar conditions is a violation of the principle of equal treatment
and, therefore, an abuse of discretion. 8o In another case a person's application for
being declared expert property-valuator was rejected by a Land government on the
ground that such permission under Sect. 36 (1) of the Commercial Code conflicted
with his interest as furniture dealer. He could successfully challenge the rejection of
his application, among others, on the ground that in similar situations permission
had been granted to other persons and therefore the governmental action in his case
amounted to denial of equality oftreatment.81
The principle of equal treatment applies not only in those cases where the ad-
ministrator has bound himself by a consistent administrative practice or norm but
also in those cases where there exists no such practice if inequality of treatment
could be proved. This proposition is supported by several decisions of the Federal
Administrative Court on examination matters. In a law examination out of 138 stu-
dents 28 were given the instruction to bring their own books on the specified sub-
jects while to the rest these books were supplied from the office. On the suit of an
unsuccessful candidate the court held that it was violation of the principle of equali-
ty of opportunity so far as the students who were allowed to bring their own books
could make use of the markings on such books which the other students could not
do. It also observed that the equality of opportunity in the matter of examination
acquires additional importance because it has direct impact on the choice of occu-
pation or profession guaranteed in article 12 (1) of the Basic LaW.82 In another case
oflaw examination the examinees were informed of different contents of the exami-
nation than they actually faced in the examination-room. The examinees were given
the chance to bring the help-materials for solving the examination paper. But while
the examinees in one room were compensated for the loss of time by allowing them
additional time in another room no such time was given. An unsuccessful candidate
from the latter category could successfully challenge this discrimination as violation
of equality of opportunity.83 In one more case of examination the court even reject-
ed the plea of the examination body that a student who complains to have failed in
the oral examination due to admitted disturbance from outside should have com-
plained during or immediately after the examination and not after the results were
out. It held that the fact that the examinee did take the risk of taking the examina-
tion does not deprive him from his right to challenge the denial of equality of op-
portunity on the part of the examination body because, among other things, the
candidate could be unaware of his right at the time of examination.84
The principle of equality of treatment is, however, subject to two qualifications.
First, the administrative practice on which a citizen or administrator is relying must
be legal. The principle of equal treatment grants no one a claim for equality in ille-
gality. Thus following a decision of the Federal Constitutional Court on the inter-
pretation of the right to equality,86 the Federal Administrative Court has held that
the subjection of the executive to law laid down in article 20 (3) of the Basic Law is
96 Judicial Review of Discretionary Powers

equally applicable in the matter of equal treatment which is based on the equality
before law. Therefore, neither a claim of a citizen nor the competence of the admin-
istration can be used for demanding or granting an illegal equal treatment. 86 Sec-
ond, the principle of equality does not prevent the administration to change its gen-
eral policy or practice from a point of time onwards in order to establish new stan-
dards for the exercise of its discretion. The principle does not bind the administra-
tion in time dimension and therefore it is under no obligation to follow a particular
policy even if in between the conditions have materially changed making the exist-
ing policy or practice unsuitable or ineffective. 87 The new policy or practice once
adopted is, however, equally subject to the principle of equal treatment.

C. Indefinite Legal Concepts

Closely connected with but quite distinct from the issue of judicial review of discre-
tion is the review of indefinite legal concepts (unbestimmter RechtsbegrifJ). 88 The in-
definite legal concepts are concepts such as 'public welfare', 'public interest', 'need',
'public need', 'public safety', 'public order', 'reliability', 'urgency', 'unreasonable',
'good morals', etc., quite commonly used in the statutes confering powers on the ad-
ministrative authorities. The administrative authorities have to operate these con-
cepts in concrete situations. The operation takes place in two stages: the interpreta-
tion of the concept and its application to specific facts. As regards interpretation it is
universally accepted that the courts have the final say and they may always examine
whether a concept has been correctly interpreted by an authority. Controversial,
however, is whether the application of the concept, so interpreted, to the concrete
fact situation be left to the authority or the courts may also review it and substitute
their own judgment for that of the authority.
To dilute the controversy a distinction is drawn between the empirical and nor-
mative indefinite legal concepts. 89 Empirical concepts are descriptive of a thing or
reality such as dawn, local custom, trade practice, prohibited area, etc. Neither at
the stage of their interpretation nor at the stage of their application such legal con-
cepts cause any serious difficulty. Their application would normally admit only one
right decision which is subject to full review by the courts. Normative legal concepts
are, however, value laden concepts and accordingly their interpretation as well as
application involve value judgment. Should the courts respect the value judgment
of the administrative authority in the application of such indefinite legal concepts
or should they substitute their own in a disputed case is the core concern of the
entire discussion on the indefinite legal concepts.
Some prominent German administrative lawyers have pleaded for a restricted
judicial review in such cases. Thus Bachof opines that through indefinite legal con-
cepts law gives a margin of judgment (Beurteilungsspielraum) to the administrative
authority which must be respected by the courts although they may examine wheth-
er that margin has been crossed.9o Similarly Ule is of the view that when in border-
line cases more than one tenable decisions are possible the decision of the adminis-
trative authority must be taken to be lega1. 91 Proponents of restricted judicial review
Indefinite Legal Concepts 97

of indefinite legal concepts argue that through such concepts law imposes special
responsibility on the administrative authorities subject only to limited judicial re-
view; that such concepts admit varying evaluations; that the administration pos-
sesses better expertise and experience and stands in close relationship with the con-
crete problems; and that the administration as an organ of the state has certain re-
sponsibility of its own vis-a-vis the courtS.92
However, except in one instance and some exceptional categories of situations
to be mentioned shortly, this view of limited judicial review of indefinite legal con-
cepts has not found favour with the administrative courts. In an unbroken chain of
decisions they have treated the indefinite legal concepts as matters of law and exer-
cised full judicial review in respect of them. Thus, among others, the Federal Ad-
ministrative Court has held that 'serious reason' within the meaning of Law on
Change of Name,93 'artistic value of a film' by the Film Censor Office,94 'suitability
of a building as a monument' to be protected,95 'serVice requirement' for the transfer
of a civil servant96, 'fitness of a person for military service' ,97 and 'inequitable' with-
in the meaning of Sect. 131 of the Empire Tax Code 191998 are fully reviewable.
Support for such review is found in article 19 (4) of the basic law which assures re-
course to courts in case of violation of rights by any public authority.99
This chain was, however, broken by a decision of the Federal Administrative
Court of 16 December 1971.tOO Disregarding an earlier decision of its own, tOt on the
question of review of the administrative decision recording a publication in the list
of publications having the tendency of harming the morals of adolescents under
Sect. 1 of the Law on the Circulation of Publications Harmful to the Morals of Ado-
lescents 1961, the Court refused to interfere with the administrative decision and
held t02
The condition for recording in the list is the tendency to harm the morals of ado-
lescents. Till now it was considered an indefinite legal concept admitting only
one right decision ... The notion that for the application of the concept of ten-
dency to harm the morals of adolescents there is only one possible solution is a
fiction. In fact there are more solutions 'a bandwidth of possibility of decisions'
(Bandbreite der Entscheidungsmoglichkeiten) ... which may be found equally
tenable in law.
It further observed: t03
This limitation on the review by the administrative courts does not violate Arti-
cle 19 (4) of the Basic Law. Judicial protection is a protection against violation
of law. If more than one lawful decisions are possible Article 19 (4) does not re-
quire that the final choice must rest with the courts.
This decision has, however, failed to be a trend setter. Apart from other courts
the Federal Administrative Court itself has gone against the principle of this deci-
sion, in a number of decisions since then. Thus it has held that such indefinite legal
concepts such as 'special individual case' and 'for reasons of interests of public
health' in Sect. 3 ofthe Federal Law on Medical Profession 1961 104 'remote place' in
Sect. 11 of the Law on the Undertakings of Chemists,105 'inequitable' in Federal
(War Victims') Pension Law,106 'serious reason' in Federal Law on Student Aid,t07
'injurious environmental effect' in Federal Law for Protection from Emission, t08
and 'general welfare' in Sect. 31 (2) of the Federal Building Law109 are subject to un-
restricted judicial review. ttO
98 Judicial Review of Discretionary Powers

These decisions clearly establish that the indefinite legal concepts are subject to
unrestricted judicial review and the 16 December 1971 decision falls within the cate-
gory of exceptions where the courts have conceded a margin of judgment to the ad-
ministrative authorities subject to restricted judicial review. There is no agreed cate-
gory of exceptions. Generally, decisions upon examination, decisions similar to de-
cisions upon examination particularly in the sphere of education, and judgments or
assessments under the civil service law are included among such exceptions because
they are of highly personal nature. They are subject to review only if the authority
has proceeded on the basis of wrong facts, violates mendatory procedural provi-
sions, does not observe the generally applicable principles of valuation, or takes ir-
relevant considerations into account. 111 In some writings it is further suggested that
indefinite legal concepts in matters of planning and future expectations, suitability
of a person for a job or activity, decisions of representative bodies, and decisions in-
volving administrative policy questions may be subjected only to restricted judicial
review because of their peculiarity.112
It seem that the issue of indefinite legal concepts does not have an exact parallel
in the common-law countries. It has some resemblance with the mixed questions of
law and fact going to jurisdiction or causing an error apparent on the face of record
in the Indian or English law or application of legal concepts to facts in the
U. S.law. 113 But there the courts interpret and review much more specific legal con-
cepts. Normally, the application of the kind of indefinite concepts like 'public inter-
est' or 'public welfare', etc., reviewed by the German courts will be left to the admin-
istration unless in their application it has misused its discretion or violated some
mandatory procedural norm. 114 The wider judicial review of the indefinite legal
concepts by the German courts is commensurate with their overall jurisdiction to
review administrative decisions which is certainly wider than the review jurisdic-
tions of the courts in the common-law countries.115

References

1 See Davis KC: Discretionary Justice, chs I and III (1969).

2 Sharp v Wakefield [1891] AC 173. Cited in Wade HWR: Administrative Law, 152-153 (5th ed,
1982).
3 (1598) 5 Co Rep 99b.
4 See decisions of 30 Oct 1906, 50 PrOVG 417, 421: of 1 Nov 1934,94 PrOVG 210; of 29 Nov
1964, 19 BVerwGE 332, 335; of 27 March, 1968, 29 BVerwGE 235; of 13 Feb 1974, 45
BVerwGE 13,24; of 3 Feb 1959, 9 BVerfGE 134, 147; of 25 Feb 1962, 14 BVerfGE 105; Jelli-
nek W: Verwaltungsrecht, 64 (3d ed, 1931); ForsthoffE:Lehrbuch des Verwaltungsrecht I, 97
(10th ed 1973); MaurerH: Allgemeines Verwaltungsrecht, 89 (1980); WolffHJ, BachofO: Ver-
waltungsrecht 1.198 (9th ed, 1974); Badura P, Das Verwaltungshandeln. in Erichsen H-U, Mar-
tens W (eds): Allgemeines Verwaltungsrecht. 165 (4th ed, 1979).
5 See VwVfG, s 113 and VwGO 114. Compare, USC, s 706 (2) (A).
6 See, for example, State of West Bengal v Anwar Ali. AIR 1952 SC 75; State of Punjab v Khan
Chand. AIR 1974 SC 543; StateofMPv Baldev Prasad. AIR 1961 SC 293; Raghubirv Court of
Wards. AIR 1953 SC 373; Dwarka Prasad v State of UP. AIR 1954 SC 224. Not only that, the
Supreme Court of India has expressed itself in very wide terms against the conferment of
unguided discretion. In Jaisinghaniv Union of India AIR 1967 SC 1427 at 1434 it observed:
References 99

In a system governed by rule of law, discretion, when conferred upon executive authorities,
must be confined within clearly defined limits. The rule oflaw from this point of view means
that decision should be made by the application of known principles and rules and, in gen-
eral, such decision should be predictable and the citizen should know where he is.
Compare the words quoted above at p 84.
7 Decision of 3 Feb 1959,9 BVerfGE 137, 147.
8 Decision of 10 July 1958, 8 BVerfGE 71.
9 Decision of 5 Aug 1966, 20 BVerfGE 150, 157-58.
10 Decision of 8 Aug 1978, 49 BVerfGE 89, 157-59.
11 See Muller HJ: Das Errnessen in der Rechtsprechung des Bundesverfassungsgerichts, [1960]
DOV 119, 127. Also see Pakuscher EK: The Use of Discretion in German Law, 44 UChiLRev
94 (1976). For a criticism of the Indian Supreme Court's tendency to allow wider grant of
discretion in India see Jain MP, Jain SN: Principles of Indian Administrative Law, 347 ff (3d ed,
1979).
12 See Wolff, Bachof, above, n4 at 199ff.
13 Decision of 24 Nov 1969, 34 BVerwGE 241.
14 Decisions of 13 Dec 1962, 15 BVerwGE 196, 199, and of 28 Feb 1975,48 BVerwGE 81, 84.
15 Decision of 17 Jan 1958, 6 BVerwGE 119, 127. Also decision of 1 June 1979 [1980] NJW 75
(BVerwG).
16 Decision of 22 Jan 1969, 31 BVerwGE 212.
17 Id, at 213-14. Comp, Shri Rama Sugar Industries v State ofAP, AIR 1974 SC 1745.
18 Decision of 25 July 1964, 19 BVerwGE 48, 55.
19 Decision of 8 July 1964, 19 BVerwGE 87, 92. Also decision of 19 Dec 1972 (OVG Munster)
[1973] DVBI 963.
20 Decision of 22 Sept 1970, 22 VR 487 (BVerwG).
21 Decision of28 Feb 1975, 48 BVerwGE 81, 84. Also Wolff, Bachof, above, n4 at 200.
22 Decision of 18 Aug 1960, 11 BVerwGE 95, 97.
23 Decision of 13 Dec 1974, 47 BVerwGE 280, 283 and of 7 July 1978, 56 BVerwGE 63.
24 Decision of 7 July 1978, 56 BVerwGE 56. For a plea of objectivity in the matter of denial of
such permission see Liihr R-P: Zum Errnessen bei Erlaubnis oder Versagung einer Sondemut-
zung, [1983] NVwZ 20.
25 See decisions of 14 June 1882,9 PrOVG 353 and of 10 April 1886, 13 PrOVG 424, 426.
26 See Hirschberg L: Der Grundsatz der VerhiiltnismiijJigkeit, 43-44 (1981).
27 Decision of 15 Dec 1965, 19 BVerfGE 342, 348-39.
28 Decisions of 4 Feb 1975,38 BVerfGE 348, 368 and of 5 March 1968, 23 BVerfGE 127, 133.
29 Decision of 5 June 1973,35 BVerfGE 202, 221.
30 Decision of 8 Feb 1977,43 BVerfGE 242, 288.
31 Decision of9 Nov 1976,43 BVerfGE 101, 106.
32 See Wade, above n 2 at 752ffand de Smith SA: Judicial Review ofAdministrative Action 354-56
(4th ed, 1980).
33 See Const of India, art 19 (2)-(6).
34 The right to equality in article 14 admits reasonable classification and through article 14 the
concept of reasonableness has been extended to the right to life and liberty in article 21. See,
Maneka Gandhi v Union of India, AIR 1978 SC 597.
35 On the question of reasonableness of executive legislation see Jain and Jain, above, n 11 at
61-63.
36 Re W (An Infant) [1971] AC 682, 700.
37 See Chintaman Rao v. MP, AIR 1951 SC 118; Madras v. Row VG, AIR 1952 SC 196 in so far as
the court emphasizes the proportionality of the restrictions with the public interest to be
served.
38 Decision of 5 May 1908, 52 PrOVG, 419.
39 60VG Berlin, 115.
40 Decision of 5 Nov 1968, 31 BVerwGE 15.
41 Decision of 30 Oct 1970, 270VG LuneburgE 321, 325.
42 Wolff, Bachof: Verwaltungsrecht III, 202 (4th ed, 1978) suggest that out of public resources on-
ly that much be granted to an individual as is necessary.
43 Decision of 16 March 1967, 17 BWVGHE 227.
100 Judicial Review of Discretionary Powers

44 Decision of 3 June 1982, [1983] NVwZ 93, 94 (BVerwG).

45 Decision of 12 Jan 1962, 13 BVerwGE 288.
46 Decision of 14 April 1967,26 BVerwGE 305, 309; also of 16 Dec 1971, 39 BVerwGE 190, 195.
47 Decision of 29 Sept 1965 [1966] Dav 249 (BVerwG).
48 Drews, Wacke, Vogel, Martens: Gefahrenabwehr, 156 (8th ed, 1975 by Vogel K).
49 Decision of 16 Oct 1963 of BW VGH cited in Drews et ai, above, n 48.
50 Decision of 20 March 1970, 22 VR 64, 67 (BVerwG).
51 60 BVerwGE 75, 77.
52 Decisions of 13 Nov 1979, 59 BVerwGE 105 and 112.
53 Id. at 109.
54 See Wade, above n 2 at 507 ff. Compare, Wong Yang Sungv. McGrath,339 US 33 (1950) and the sub-
sequent developments in Gellhorn, Byse, Strauss: Administrative Law, 168 (7th ed, 1979).
55 Drews, et al above, n 48.
56 Ibid.
57 de Smith, above, n 32 at 325ff; Jain and Jain, above n 11 at 490-91.
58 See above, p 85.
59 See, for example, decisions of 2 July 1963, 16 BVerwGE 194, 196 and of 18 Sept 1970, 36
BVerwGE 119.
60 Decision of 1 Oct 1909, 55 PrOVG 459.
61 Decision of2 March 1971,37 BVerwGE 283.
62 Decision of 22 Jan 1971,37 BVerwGE 116.
63 Decision of 18 Sept 1970,36 BVerwGE 119.
64 Decisions of 16 July 1970, 35 BVerwGE 291, 294; of 13 Nov 1979, 59 BVerwGE 105 and 112;
and of 26 Feb 1980,60 BVerwGE 75. Also decision of 18 July 1979, 51 BVerfGE 386.
65 Decision of 2 July 1963, 16 BVerwGE 194.
66 Decision of 13 Feb 1958,6 BVerwGE 186.
67 Decision of 26 Aug 81 [1983] NVwZ 49 (OVG Uineburg).
68 Decision of 3 May 1973,42 BVerwGE 133.
69 Decision of 16June 1970,35 BVerwGE 291.
70 Decision of 17 Jan 1980, 59 BVerwGE 284.
71 Decision of 12July 1972, 40 BVerwGE 237.
72 Decision of 25 Oct 1978, 56 BVerwGE 355.
73 Decision of7 Feb 1952, 6 VR 71,73 (WB VGH).
74 Decision of 25 Nov 1964,21 OVG 1, 10 Miinster. Also decision of 14. Sep 1981 [1982] NVwZ
194 (BVerwG).
75 See Drews et ai, above, n 48 at 146.
76 Ibid.
77 See Jain and Jain, above, n 11 at 522ff. The recent notable decisions are: JP Kulshreshtha v Al-
lahabad University, AIR 1980 SC 2541; Omprakash v Jammu and Kashmir, AIR 1981 SC 1001,
Vishundas Hundamal v State of MP, AIR 1981 SC 1636; Allied Transport Co v State of MP,
AIR 1981 SC 1639.
78 Decision of12 Dec 1962, 15 BVerwGE 190, 196; and of22Jan 1969, 31 BVerwGE 212, 214.
79 Decision of 10 Dec 1969, 34 BVerwGE 278, 281.
80 Decision of 12 Feb 1964, 16 VR 935 (OVG Miinster).
81 Decision of 30 May 1973, 19-21 Gewerbearchiv 59, 60 (VGH Miinchen).
82 Decision of 13 Oct 1972 41 BVerwGE 34.
83 Decision of 26 July 1979, 26 Bay VBI 86 (Bay VGH).
84 Decision of 17 Jan 1969, 31 BVerwGE 190. Also decision of 3 Dec 1981 [1983] NJW 407
(BVerwG).
85 Decision of 12 April 1956,5 BVerfGE 1.
86 Decision of 10 Dec 1969, 34 BVerwGE 278, 283.
87 Decision of 25 July 1962 [1963] DVBI65 (BVerwG).
88 For the relationship between discretion and indefinite legal concepts see Ule CH: Verwaltungs-
prozessrecht, 6 ff. (7th ed, 1978).
89 See Erichsen H-U, Martens W: Das Verwaltungshandeln, in Erichsen, Martens, above, nat 161
90 BachofO, Beurteilungsspielraum, Ermessen und unbestimmter Rechtsbegri./J in Verwaltungs-
recht, [1955] JZ 97.
References 101

91 Ule, above, n 88 at 9. Also see Wolff, Bachof, above, n 4 at 192 where they plead that the courts
should recognize a prerogative of assessment of the authorities particularly where future devel-
opments are involved and the administrative decision does not violate the tolerable limits of
the interpretation of a concept. Compare, Rochester Tel. Corp v United States, 307 US 125
(1939).
92 See Maurer, above, n 4 at 95.
93 Decision of 15 BVerwGE 207, 208.
94 Decision of 28 Jan 196623 BVerwGE 194, 200f.
95 Decision of 24 BVerwG E 60, 63 f.
96 Decision of 26 BVerwGE 65.
97 Decision of 19 Dec 1968, 31 BVerwGE 149, 152.
98 35 BVerwGE 69, 72ff.
99 Decision of 5 Feb 1963 15 BVerfGE 275, 282.
100 39 BVerwGE 197 Also decision of 19 Oct 1971, 39 BVerwGE 355.
101 Decision of 12 Jan 1966,23 BVerwGE 112.
102 39 BVerwGE 197,203.
103 Id, at 205.
104 45 BVerwGE 162.
105 Decision of9 July 1974, 45 BVerwGE 331.
106 Decision of 24 July 1975,49 BVerwGE 79, 85.
107 Decision of 12 Feb 1976, 50 BVerwGE 161, 164ff.
108 Decision of 17 Feb 1978, 55 BVerwGE 250, 253 f.
109 Decision of 19 Feb 1982,65 BVerwGE 73, 75.
110 Also see the recent Peep-Show Case, above, p 78.
111 Erichsen&Martens, above, nat 162-3.
112 See Maurer, above n4 at 97f; Wolff, Bachof, above, n4 at 192ff; AchterbergN: Allgemeines
Verwaltungsrecht, 273 (1982).
113 See Wade, above, n2 at 249ff and more specifically at 284ff; Davis KC: Administrative Law
Text, 545ff. (1972).
114 Compare, Baldev Raj v Union ofIndia, AIR 1981 SC 70 where the Supreme Court of India has
held that whether the compulsory retirement of a government servant is, 'in the public interest'
under rule 56 (J) of the Fundamental Rules is subject to judicial review in so far as the court
can judge whether the retirement is in the public interest.
115 Above, p 71.
Chapter 7
Administrative Courts

1. German Judicial System

The administrative courts in West Germany constitute an integral part of the total
judiciary. Unlike the French Conseil d'Etat and the administrative tribunals in the
common-law world, they are completely separate and independent from the execu-
tive. They constitute one of the five branches of the German judiciary. The five
branches consist of the ordinary courts (civil and criminal courts), administrative
courts, labour courts, fiscal courts, and social courts. Each branch consists of an
apex court and one or more levels of the courts below. The apex courts are specified
in the German Basic Law and are called respectively the Federal Court of Justice
(Bundesgerichtshoj), the Federal Administrative Court (Bundesverwaltungsgericht),
the Federal Labour Court (Bundesarbeitsgericht), the Federal Fiscal Court (Bundes-
jinanzhoj), and the Federal Social Court (Bundessozialgericht). 1
Strictly speaking, as the designation itself, suggests all the five apex courts are
the federal courts and the courts below are the Land courts. But unlike some other
federal systems such as the United States, West Germany does not have double set
of courts to administer federal and state laws. Like India she has a unitary system of
judiciary in which the same courts administer the federal as well as state laws al-
though in principle the courts other than the federal courts are Land courts and the
federal courts are supposed to decide only matters concerning federal laws. Basic
provisions on the vesting of judicial power, independence and legal status of the
judges, ban on extra-ordinary courts, and some other provisions on the judiciary are
made in the Basic Law and the details on the constitution, jurisdiction, and proce-
dure of the courts are regulated by the general laws applicable to all the courts
throughout the country.2
The five branches of the German judiciary have equal status. Neither has priori-
ty over the other nor is any superior or inferior to the others. Of course the ordinary
courts are the oldest and most numerous as well as are confronted with the major
litigational work but that does not make them superior to the courts in the other
branches of the judiciary.
In addition to the five branches of the judiciary there is a Federal Constitutional
Court (Bundesveifassungsgericht) to interpret the Basic Law and judge the validity
of the federal and Land laws with reference to it. Laender have their own constitu-
tional courts to adjudicate upon the constitutional issues arising under the Land
constitution. Only in this respect, one may say, the federation and its units have dif-
ferent set of courts. The federal government has also established a Federal Patents
Court but it does not form an independent branch of the judiciary in so far as it is
subject to the appellate jurisdiction of the Federal Court of Justice.
In this eleborate system of courts with independent hierarchies of their
German Judicial System 103

Courts in the Federal Republic of Gennany

1. General Courts
I i I I i
,I ,I ,I I
I
I
I
Federal Court of Justice Federal Admin- Federal Labour Federal'Fiscal Federal Social
(Bundesgerichtshoj)
__, I
istrative Court Court Court Court
(Bundesverwal- (Bundesarbeits- (Bundesjinanz- (Bundessozialge-
i i tungsgericht) gericht) hoj) richt)
i
i
i
i I ,
I
I I
Federal Patent Higher/Appel- Higher Adminis- Regional Labour Fisal Courts Regional Social
Court (Bundes- late Land trative Courts Courts (Landes- (Finanzge- Courts (Landes-
patentgericht) Courts (Ober- (Oberverwal- arbeitsgerichte) richte) sozialgerichte)
landesgerichte) tungsgerichte)

I or

Regional Courts (Verwaltungsge-

I
Labor Courts
I
Social Courts
(Landgerichte) richtshofe) (Arbeitsgerichte) (Sozialgerichte)

I
County Courts
I
Administrative
Courts (Verwal-
(Amtsgerichte) tungsgerichte)
2. Constitutional Courts
(i) Federal Constitutional Court (Bundesverfassungsgericht)
(ii) Land (State) Constitutional Courts (Landesverfassungsgerichte)

own conflicts of jurisdiction between different branches of the judiciary could not
be ruled out. The framers of the German Basic Law were fully aware of such even-
tuality and accordingly like the Tribunal des Conflicts in France, they had provided
for the creation of a Federal Supreme Court (Oberstes Bundesgericht) to resolve
such conflicts in the interests of uniform application of law. But, unlike France,
surprisingly the number of such conflicts was so negligible that the need for the
creation of this court never arose. Finally, by an amendment of the Basic Law in
1968 the provision for the establishment of the Federal Supreme Court was re-
placed by a provision for the creation of a Common or Joint Senate (Gemeinsamer
Senat) of the five highest courts which consists of the presidents and some other
members of these courts. The Common Senate, as is obvious from its constitution,
is not a regular court. It assembles only to consider a legal issue on which any of
the five courts wants to differ from a decision of another court or of the Common
Senate.
The conflict of jurisdiction at the lower level or between the courts of the first in-
stance in different branches has been taken care by clearly defining the jurisdiction
of the courts in each branch supplemented by an identical formula in all the juris-
dictions for the resolution of such conflicts. The formula operates at two levels.
First, it gives conclusive say to the court which is first approached. Accordingly if
the court in one branch approached first holds that it has or does not have jurisdic-
tion with respect to a dispute, the courts in all other branches are bound by such de-
cision. Second, the court so approached may, on the request of the plaintiff, refer
the case to the appropriate court in any other branch. Such reference is binding on
the court to which it is made and therefore it cannot decline jurisdiction even if it
considers such reference to be wrong. The only remedy against such decision of the
court first approached lies in an appeal or revision in the competent court in the
same branch and not any where else.
Thus, if a matter is first brought before an administrative court, that court will
104 Administrative Courts

decide whether it has jurisdiction with respect to that matter. If it holds that the mat-
ter does not lie within its jurisdiction or within the jurisdiction of any other adminis-
trative court then no court in any other branch can deny jurisdiction on the ground
that in its opinion the matter lies within the jurisdiction ofthe administrative courts.
Similarly, if a matter is first brought before a court in any other branch of the judi-
ciary the decision on the admissibility or inadmissibility of the jurisdiction in that
court shall be binding on the administrative courts. Further, on an application of the
plaintiff in a matter first brought before an administrative court the court may refer
the matter to the competent court in any other branch of the judiciary if it comes to
the conclusion that it does not have jurisdiction in that matter and the jurisdiction
lies in fact with the court to which it refers the matter. In doing so the court must
give a formal judgment referring the matter to the court of the first instance in the
appropriate branch which has the territorial as well as the substantive jurisdiction in
respect of the subject-matter of the dispute. Reference by an order may also be
made if the defendant agrees with the application of the plaintiff.3
These provisions on the resolution of the jurisdictional conflicts do not apply to
constitutional matters and therefore neither the constitutional courts are bound by
the decision of any other court about the jurisdictional admissibility or inadmissi-
bility of a constitutional issue in any court nor are the other courts if they hold that
the matter referred to them is of constitutional nature. In the former case the consti-
tutional court has to take its own decision while in the latter the court must refer the
case to the constitutional court.
The judiciary holds an important place in the German legal system. Its indepen-
dence and prestige has always been dear to the German people which, they consid-
er, is the sine qua non for the establishment and realization of a constitutional state
based on the rule oflaw. They have, therefore, made elaborate provisions in the Ba-
sic Law for the realization and preservation of the independence of the judiciary
and have supplemented and concretized them with elaborate general legislations
which may be briefly mentioned in the context of the administrative courts.

2. Administrative Courts"

(a) Structure: The administrative courts consist of three levels. At the bottom are the
lower administrative courts (Verwaltungsgerichte), in the middle the higher adminis-
trative courts (Oberverwaltungsgerichte also called Verwaltungsgerichtshof in some
of the Laender), and at the top is the Federal Administrative Court (Bundesverwal-
tungsgericht). The number of the lower administrative courts differs from Land to
Land according to the size of the Laender. Small Laender like Schleswig-Holstein,
Hamburg, Bremen, Saarland and Berlin have only one lower administrative court
each while big states like Nordrhein-Westfalen or Bayem have as many as seven
and six lower administrative courts respectively. The total number of these courts in
West Germany is thirty three. Except Schleswig-Holstein and Niedersachsen, who
share one higher administrative court together, every other Land has one higher ad-
ministrative court. Thus the total number of these courts is ten. The Federal Admin-
istrative Court has its seat in West Berlin. The total number of the judges (excluding
the lay judges) in all these courts together is 1536 of which forty six belong to the
Administrative Courts 105

Federal Administrative Court while the rest to the higher and the lower administra-
tive courts. 5
Looking at the large number of the administrative tribunals functioning in the
common-law countries like India or England one might tend to think that the num-
ber of the administrative courts in West Germany is quite small. But one should not
overlook that apart from one hundred and seven labour courts, there are sixty two
social courts and fifteen fiscal courts to decide matters which are entertained by the
tribunals in these countries.
No specific number of judges is fixed for a lower administrative court, higher
administrative court or the Federal Administrative Court. However, a lower admin-
istrative court consists of a president and such other professional judges as are re-
quired. In addition to professional judges on whom lies the responsibility of con-
ducting a case and writing the judgment as many lay judges as are necessary are al-
so attached to every lower administrative court to help the professional judges on
questions of facts. The court works in divisions (Kammern) consisting of three pro-
fessional and two lay judges. The seniormost among the professional judges pre-
sides over the division. Depending upon the amount of work a lower administrative
court may have as many as ten or more divisions though of course no number is
fixed. Each division deals with specific matters such as law and order, or commerce
and industry, or asylum, or land and construction, or education, or public services,
etc. The divisions are constituted and specific judges and matters are assigned to
them well before the commencement of each court-year. Neither the judges nor the
matters assigned to a division can be changed during the course of the year except
under conditions expressly laid down in law. Arrangements for any contingency
such as inability of a judge to discharge his duties is also made in advance. The con-
stitution of the divisions and the allocation of business to them is open to the public
and may be seen by anyone on any working day in the office of the court. This ar-
rangement serves two purposes. First, it assures specialization within the court be-
cause the same set of judges will be dealing with a particular category of disputes.
Second, it assures equal treatment of all the litigants of the same category and
implements the guarantee given in article 101 (1) of the Basic Law that 'No one may
be deprived of the jurisdiction of his lawful judge'. Only a judge or division of
judges named well in advance without reference to the parties but according to the
subject-matter of the dispute entertains and decides a dispute and not the one be-
fore whom the matter may fall just by chance.
A higher administrative court consists of a president, presiding judges, and such
other judges as are necessary. Like the lower administrative courts they also func-
tion in divisions (Senate) each of which consists of three professional judges unless
a Land law provides that it should consist of five judges in which case two of the
five judges shall be lay judges. The Lander of Baden-Wiirttemberg, Bayem, Bremen
and Saarland have divisions of three judges while Berlin, Hamburg, Hessen, Nie-
dersachsen, Nordrhein-Westfalen, Rheinland-Pfalz and Schleswig-Holstein have
divisions of five judges - three professional and two lay judges. The divisions are
constituted on the same principle as in the lower administrative courts. Again, de-
pending upon the amount of work big states like Baden-Wiirttemberg have as many
as fifteen divisions.
The Federal Administrative Court consists of a president, presiding judges, and
106 Administrative Courts

such other judges as are necessary. It also works in divisions (Senate). Each division
consists of five professional judges. There is no provision for lay judges in the Fed-
eral Administrative Court. Orders in the cases which do not require oral hearing
may be passed by a division of three judges. There is no fixed number of divisions.
But normally there are eight or nine divisions to hear the regular revisions. Besides
two divisions deal with the disciplinary and defence service matters.
Each higher administrative court and the Federal Administrative Court may al-
so constitute a large division (Grofier Senat) consisting of the president of the court
and six other judges appointed for two years. A dispute is referred to the large divi-
sion if a division of the court either wants to differ from an earlier decision of an-
other division or of a large division on a question of law or it wants to have a deci-
sion of the large division on a fundamental question of law for the sake of clarifica-
tion or legal uniformity.
For the transaction of its business every administrative court maintains an office
consisting of administrative and other clerical staff required for the purpose. All
courts and administrative authorities are obliged to give legal and official help to
the administrative courts.

(b) Status: As is discussed in the very beginning, the administrative courts are one of
the five branches of the German judiciary and therefore they enjoy the same inde-
pendence and status as the courts in any other branch. The position of the adminis-
trative courts has been further clarified in the opening provision of the Law on Ad-
ministrative Courts of 1960 which says that the administrative jurisdiction shall be
exercised by courts independent and separate from the administrative authorities.
Separation of the courts from the administration is founded on the general doctrine
of the separation of powers laid down in article 20 (2) of the Basic Law according to
which state authority is to be exercised by specific legislative, executive, and judicial
organs. It has been reinforced by article 92 which vests the judicial power in the
judges to be exercised by the courts. 6
The administrative courts, like any other courts, have their independent organi-
zation and are specifically prohibited by law to take up any administrative function
other than the administration of the court and its business. Like the courts in the
common-law countries and unlike the Conseil d'Etat in France they do not perform
any consultative role either in the legislative process or by way of advising the exec-
utive. The judges are also prohibited from taking up any legislative or executive
work. No judge can be a member of the executive or legislature. In case he accepts
such membership he ceases to be a judge. Equally, members of the executive or the
legislature are prohibited from acting as judges, though the prohibition does not ap-
ply to the appointment of former members of the executive as judges. The indepen-
dence of the courts and non-interference in their business has been further ensured
by article 101 (1) of the Basic Law referred to above, according to which no one may
be deprived of the jurisdiction of his lawful judge. It forecloses not only interfer-
ence from the executive or any other body but also the internal manipulation in the
formation of the divisions or allocation of business within the court. The formation
of the division and the allocation of the business is done, as already noted, well in
advance by an elected council (Priisidium) of the court and not by the president of
the court alone or by any other outside body.
Administrative Courts 107

Thus the status of the administrative courts in West Germany is quite different
from the administrative tribunals in France or in common-law countries. In France
following the doctrine of separation of powers the judiciary was excluded from en-
tertaining the administrative disputes which were assigned to the Conseil d'Etat
which in principle is an administrative body or at least an organ of the executive
branch of the state. In Germany, on the other hand, all matters of judicial nature,
whether arising between two private citizens or between the citizen and the state, are
assigned to the judiciary. The German Basic Law confers a fundamental right to ap-
proach the courts should any person's rights be violated by any public authority.
And unless a separate jurisdiction is specified he can approach the ordinary courts'?
The separation of the administrative courts and administrative jurisdiction from
the ordinary courts and ordinary jurisdiction in Germany is based not on the doc-
trine of separation of powers but on the private and public law distinction long re-
cognised in German law as an incident of Roman law and the unsuitability of the
ordinary courts to deal with the public law matters. 8 Again, unlike the French Con-
seil d'Etat the German administrative courts are no longer considered primarily a
super watchman over the activities of the administration to keep it within the law.
Primarily they are the protectors and defenders of the rights of an individual against
the administrative excesses.9 As regards the administrative tribunals in the com-
mon-law countries one must admit that inspite of more and more statutory indepen-
dence granted to these tribunals during the recent years they are still considered
part of the executive branch of the state and do not carry the same respect, prestige,
and independence as the traditional courts of law dO.lO

(c) The Judges: The position and status of the courts depends upon the position and
status of the judges. The German Basic Law and some other laws assure the inde-
pendence of all the judges in Germany. Article 97 of the Basic Law declares that the
judges shall be independent and only subject to the law. Further it says that the
judges appointed permanently on a full time basis in established positions cannot
against their will be dismissed or permanently or temporarily suspended from office
except by virtue of a judicial decision and only on the grounds and in the form pro-
vided by law. Again, article 98 declares that the legal status of the judges shall be
regulated by special laws and final decision on the impeachment of a judge shall
rest with the Federal Constitutional Court.
These provisions of the Basic Law have been concretised and supplemented by
the German Law on Judges 1972 and the corresponding laws of the Laender on the
judges. Thus Sect.25 of the Law of 1972 reiterates that a judge is independent and
only subject to law. This law further deals with the appointment, functions, transfer,
dismissal, supervision, etc., of the judges and is applicable to all federal and state
judges. Some additional provisions with respect to the position of the judges of the
administrative courts are also made in the Law on Administrative Courts of 1960.
The general propositions on the independence of the judges are as much applicable
to the lay judges as to professional. But vital differences between the two categories
of judges exist with respect to their qualifications, appointment, term of office, etc.,
and therefore it will be appropriate to mention them separately.
 108 Administrative Courts

(i) Professional Judges: Any person who has passed two law examinations from a
German University and conducted by the ministry of justice ofthe Laender is quali-
fied to be appointed a judge. The first examination takes place after a minimum
study of three and a half years in a university while the second is held after appren-
ticeship for two and a half years in different courts, administrative and legal depart-
ments, and with lawyers. A university professor of law is always qualified to be ap-
pointed as a judge of any court. No one is, however, qualified to be appointed as a
judge of the Federal Administrative Court unless he has also attained the age of
thirty-five years.
The judges of the Federal Administrative Court are appointed by the Federal
President after they have been selected by a committee constituted for the selection
of the judges of the federal courtS. 11 The committee consists of eleven Land minis-
ters - one from each Land - competent for the selection of the judges and eleven
members elected by the lower house of the West German Parliament (Bundestag)
and is presided by the Federal Minister of Justice who has no right of vote in the se-
lection process. The judges of the higher and lower administrative courts are ap-
pointed according to the provisions of each Land constitution either by the Land
government or the competent Land minister after they are selected by a selection
committee constituted for the selection of the judges in that Land. Before such se-
lection the opinion ofthe presidential council for the selection of the judges in that
Land has to be obtained in writing about the personal and professional suitability
of a candidate for the post of a judge. The formation of the presidential council dif-
fers from Land to Land. In Bayern it consists of the president of the higher adminis-
trative court and four other members directly elected from amongst the judges of
the higher and lower administrative courts in that Land. All vacancies for the post
. of the judges, except for the judges of the Federal Administrative Court and for the
presidents of the higher administrative courts, are publicly notified.
As a general rule the judges of the administrative courts are appointed for life,
i. e., they continue in their office till the completion of sixty-eight years in the Feder-
al Administrative Court and sixty-five years in the higher and lower administrative
courts. However, in the higher and lower administrative courts university professors
and judges for life in other courts may be appointed as part-time judges. In lower
administrative courts judges on probation or commission may also be appointed.
To begin with the judges in the lower administrative courts are appointed on proba-
tion. Judges on commission are those civil servants for life who want to change their
profession. A judge on probation and a judge on commission must be made a judge
for life within five and two years respectively unless due to his unsuitability he is re-
moved before the expiry of that period. The number of part-time judges and judges
on probation and commission cannot exceed the limit of one third of the total
strength of a court because not more than one of such judges can participate in a di-
vision at a time. Nor can such a judge preside over a division.
As has been noted above a judge for life cannot be discharged, dismissed, re-
tired or transferred from his office against his will except on grounds and in accor-
dance with the procedure laid down in law. Further, article 98 (2) of the Basic Law
provides that if a federal judge infringes the principles of the Basic Law or the con-
stitutional order of a Land, the Federal Constitutional Court may, upon the request
of the lower house of the Federal Parliament (Bundestag), decide by a two third ma-
Administrative Courts 109

jority that the judge be given a different function or retired. In a case of intentional
infringement, his dismissal may be ordered. Clause (5) of that article empowers the
Laender to enact similar provisions with respect to the Land judges, i. e., among oth-
ers, with respect to the judges of the higher and lower administrative courts. The de-
cision in case of impeachment of a Land judge also rests with the Federal Constitu-
tional Court. Again, the German Law on Judges 1972 provides the specific grounds
and the procedure according to which a judge can be removed from his post. 12 It
specifically requires that no judge can be removed from his office against his will
except through a judicial proceeding.13 The judicial proceeding against the federal
judges is taken in the disciplinary court for the judges which is a special division of
the Federal Court of Justice. Against the Land judges such proceeding takes place
in the Land disciplinary courts for the judges whose decisions are subject to revision
in the federal disciplinary court. Thus the tenure of the judges has been fully se-
cured against interference from the executive and legislature and is subject only to
law and judicial decision.
At the time of entering into office every judge is administered an oath to uphold
the laws and the Basic Law and to act without regard to persons, according to his
conscience, and in the service of truth and justice. He must behave in such a manner
that his independence is not in any way jeopardized. He must abstain from giving
legal advice except as a judge and should not accept any part-time activity except
the administration of justice or administration of the court or teaching of law. He
may act as an arbitrator but only if it does not interfere with his duties as judge and
the matter is neither pending nor is likely to arise in future in his court.
The judges are subject to supervision of the president of the court. Paramount
supervisory authority over the lower administrative courts is the president of the
higher administrative court. Supervision is permissible only to the extent to which it
does not impair the independence of a judge. It includes admonition of a judge for
disorderly transaction of business but not for its contents or merits. If a judge dis-
putes that any action of supervision impairs his independence he may apply to the
disciplinary court for judges to get its opinion.14

(ii) Lay Judges: Any German citizen who has completed the age of thirty years, has
lived within the judicial district of the concerned court, and does not suffer from
any disqualification laid down by law may be appointed as a lay judge of an admin-
istrative court. The lay judges are selected from amongst the persons proposed by
the counties or towns without a county by a committee consisting of the president of
the lower administrative court as chairman, a civil servant in the administration
nominated by the Land government, and seven other trustworthy persons. A suffi-
cient number of them must be selected to ensure that none has to attend more than
twelve daily sessions in a year. A lay judge is selected for a term of four years and
gets an honorarium for his services at the court. Before the expiry of his term a lay
judge may be removed only according to law and dnly through a decision of the
court if the removal is against his will.
As has already been mentioned, the independence of the lay judges and their
subjection only to law has been assured by article 97 (1) of the Basic Law as well as
Sect. 25 of the German Law on Judges. To assure further independence of judgment
to them the law requires that the council of the court (Priisidium) must draw a list
110 Administrative Courts

before the beginning of the court year laying down the order in which the lay judges
will be invited to the court sittings. For every division a list of minimum twelve lay
judges has to be drawn.

(d) Representative of Public Interests: Since litigation in the administrative courts in-
volves public or community interest in addition to any private interests of the parties,
it is necessary that someone should represent and defend the public interest. The Law
on Administrative Courts accordingly provides for the appointment of rep-
resentatives of public interests for every administrative court. 1S The representative of
the public interests in the Federal Administrative Court is the Chief Public Attorney
(Oberbundesanwalt). He is a federal government appointee and looks after the inter-
ests of the federal government and its agencies. The representatives of the public in-
terests in the higher and lower courts are appointed by the respective states to take
care of the interests of the concerned state and its agencies. Any person who fulfils the
qualification of a judge may be appointed a representative of public interests.
Although the main function of the representative of public interests is the pro-
tection of the community interests, he is also expected to help the court in arriving at
the right decision. He is bound by the advice of the government which he represents
but not by the advice of individual ministers, departments or any other authority.
A representative of public interests is not a necessary party to any proceedings
in any administrative court. However, he must be informed of all the proceedings
that are brought before a court. It is for him to decide whether he would like to be
represented or not. In case he decides to be represented he must be informed of all
the dates fixed for the proceedings in the matter. Against any judgment of any lower
or higher administrative court in any case in which the representative of public in-
terests has participated, he can file an appeal or a revision as the case may be if he
considers the judgment contrary to the public interests which he represents. This he
can do even if the main parties to the proceedings are contented with the decision. 16

3. Administrative Jurisdiction

Apart from any other reason the fact that the German judicial system establishes
five independent jurisdictions in addition to the constitutional jurisdiction, makes it
absolutely necessary to specify as clearly as possible their respective jurisdictions to
avoid any conflict. Sect. 40 of the Law on Administrative Courts specifies the ad-
ministrative jurisdiction while the corresponding provision in the laws on other ju-
risdiction or courts specify those jurisdictions. Subject to any federal or Land law
Sect. 40 grants access to administrative courts in all public law disputes not of con-
stitutional nature. In view of articles 14 (3) and 34 of the Basic Law disputes relating
to compensation for the expropriation of property and for the wrongs of the govern-
ment officials and organs have been expressly excluded from the jurisdiction of the
administrative courts and assigned to the ordinary courts. Disputes relating to the
administrative contracts, however, lie within the administrative jurisdiction.
In order to comprehend the public law disputes that lie within the jurisdiction of
the administrative courts, the distinction between the public and private law noted
in the very beginning must be recalledP Legal disputes arising from the activities of
Administrative Jurisdiction 111

the state or public authorities based on private law are not disputes of public law
nature. Similarly, there exists no public law dispute if the legal relations between the
state institutions or other public authorities and those who make use of them are
based on private law. Such, for example, are the disputes that might arise between
the public institutions like the banks, saving banks, or hospitals and their users.
However, there may exist a public law relationship even when the use system is
styled on private law forms. Such, for example, are the cases relating to denial or
grant of a credit or subvention. Similarly, a dispute about the admission into a pub-
lic institution based on private law use system is a dispute of public law nature if the
admission depends on a claim rooted in public law.
Ail public law disputes, however do not fall within the administrative jurisdic-
tion. Disputes of constitutional nature are expressly excluded by Sect. 40 itself. In-
ternationallaw disputes are excluded by implication because the administrative ju-
risdiction extends only to national and not the international matters. Procedural
matters are to be settled by the court whose procedure they deal with and therefore
fall outside the administrative jurisdiction. Criminal law matters have been express-
ly assigned to the jurisdiction of the ordinary courts. Other public law matters
which have been expressly excluded from the administrative jurisdiction are mat-
ters assigned to the social courts by the Law on Social Courts of 1975 which include
social and unemployment insurance, pension schemes for war victims, activities of
the Federal institution for Labour, etc.; matters assigned to the fiscal courts by the
Law on Fiscal Courts of 1965 which include the disputes relating to the federal and
Land taxes; matters assigned to the disciplinary courts under the federal and Land
laws relating to such courts; matters assigned to professional disciplinary courts
which deal with the matters relating to special professions such as lawyers, doctors,
tax-consultants, chartered accountants, auditors, architects, etc.; and the matters re-
lating to the administration of church which under article 140 of the Basic Law have
been reserved to the churches. However, if the church does not provide a machinery
to settle its administrative matters access to the administrative courts is open. Mat-
ters relating to church tax and cemetery also lie within the administrative jurisdic-
tion. So also the church matters affecting an outsider or who disputes his member-
ship of the church.
Due to close relationship between the administrative law and constitutional law
sometimes difficulties arise in assigning a dispute to administrative or constitutional
jurisdiction. Application of the constitution in settling the administrative disputes is
not excluded from the jurisdiction of the administrative courts and perhaps they ap-
ply the constitution more often than any other court, including the constitutional
courts. Constitutional disputes are confined to the so-called real constitutional dis-
putes, i. e., the disputes between those parties who have the direct right of participa-
tion in the constitutional activity, any constitutional organ or any part of an organ
such as the two houses of the Federal Parliament (Bundestag and Bundesrat), Fed-
eral President and government, the Land legislatures and governments, political
parties, members of Federal Parliament and Land legislatures in their capacity as
members, etc. Disputes between the citizen and state, even if a constitutional organ
is involved are not constitutional disputes and therefore they lie within the jurisdic-
tion of the administrative courts. Nor does a constitutional issue in an otherwise ad-
ministrative dispute excludes the jurisdiction of the administrative courts.
112 Administrative Courts

The administrative jurisdiction though confined and restricted in several re-

spects remains to be quite large. The most important and noteworthy aspect of it is
its generality, i. e., its application to all kinds of administrative disputes unless any of
them are specifically excluded from its reach. It stands in clear contrast to the juris-
diction of the administrative courts based on the Prussian model operating in the
large parts of the country till the Second World War. The Prussian administrative
courts, as has already been noted,18 had no general jurisdiction except in police
matters. The existence or extent of their jurisdiction always depended on each par-
ticular law creating or establishing an administrative authority. Sect.40 of the Law
on Administrative Courts clearly rejects that model in favour of the one that oper-
ated in the Land of Wiirttemberg and some other parts of the country till it was dis-
rupted during the World War II. In view of the constitutional guarantee in article 19
(4) of the Basic Law to approach the courts in case a person's rights are violated by a
public authority, there could be no better choice. In fact no other model could have
fitted in the constitutional scheme of article 19 (4). Had the jurisdiction against any
injury to the right of an individual not been assigned to the administrative courts or
any other courts it would have automatically belonged to the ordinary courts which
would have conflicted with the long recognized tradition and theory of keeping the
administrative matters outside the reach of the ordinary courts. Thus article 19 (4)
becomes a very important factor in the creation and maintenance of the administra-
tive jurisdiction.
This jurisdiction cannot be curtailed except at the risk of assigning it to the ordi-
nary courts. It is not yet clear whether article 19 (4) read with article 79 (3) of the Ba-
sic Law constitutes the basic structure of the constitution but in case it does, the ba-
sic right it confers cannot be taken away even by an amendment of the Basic Law. 19
Thus the jurisdiction of the courts or an individual's right to approach them against
administrative violations stands on very sound constitutional foundations. In com-
mon law right to approach the courts against administrative violations is inbuilt into
the system and is considered fundamental even in the absence of a formal guarantee
to that effect. 20

4. Jurisdiction of Administrative Courts

The general administrative jurisdiction discussed above is exercised by the three

levels of the administrative courts. The lower administrative courts are the courts of
the first instance and have only original jurisdiction. Their jurisdiction extends to all
kinds of administrative matters unless a matter is specifically assigned to the origi-
nal jurisdiction of the higher administrative courts or the Federal Administrative
Court. It covers all questions of law and fact however difficult or important they
may be. The territorial jurisdiction of the lower administrative courts depends suc-
cessively either on the situs of the subject-matter of the dispute, or the special ser-
vice relationship, or the nature of the suit, or the residence of the defendant.21
The higher administrative courts are primarily the courts of appeal. They hear
appeals (Berufung) against the final judgments and complaints (Beschwerde) against
the interlocutory and other orders or decisions of the lower administrative courts. A
Land law may instead of appeal provide for revision against the judgments of the
Determination of Jurisdiction 113

lower administrative courts in which case the higher administrative court acts as a
court of revision instead of appeal. The higher administrative courts also have origi-
nal jurisdiction to decide the validity of delegated legislation made under certain
federal and Land laws; to determine the validity of prohibitions imposed on any as-
sociation by the chief Land authority; to decide the disputes relating to the consoli-
dation of farm land holdings; and to decide the constitutional disputes in those
Laender who have no separate constitutional court. The higher administrative court
in West Berlin also has the original jurisdiction with respect to disputes arising from
the declarations of the West Berlin Senate under Sect. 5 (2) of the Law on Associa-
tions. Territorial jurisdiction of a higher administrative court covers the territory of
the entire Land or Laender (in case two Laender have one common court) to which
it belongs.
The Federal Administrative Court is primarily a court of revision against the
final judgments of higher administrative courts. Revisions against the final judg-
ments of the lower administrative courts under some specific laws are also admis-
sible in the Federal Administrative Court. 22 It also hears complaints (Beschwerde)
against the orders of the higher administrative courtS. 23 Besides, the Federal Admin-
istrative Court also has original jurisdiction in the following matters:
(i) Public law disputes not of constitutional nature between the federation and the
Laender or between different Laender.
(ii) Suits against the prohibition on associations announced by the Federal Home
Minister under the Law on Associations.
(iii) Suits against the federal government with respect to matters falling within the
jurisdiction of the diplomatic and consular agencies of the Federal Republic of
Germany.
(iv) Suits against the federal government with respect to matters whose legal opera-
tion lies within the jurisdiction of the Federal Intelligence Service.
(v) Suits for invalidating the decisions of the Federal Supervisory Agency for the
insurance and Building Loan System as well as the mandatory suits against the
non-action of that Agency.
(vi) Suits for invalidating the orders or directives of the federal government or of
any competent chief federal authority.
In certain situations, to be noted below, the Federal Administrative Court also
has the original jurisdiction to determine the jurisdictional competence of the lower
courts.

5. Determination of Jurisdiction

If a person approaches an administrative court which lacks substantive or territorial

jurisdiction his suit may be dismissed as inadmissible. But if he applies in time that
his suit may be referred to the competent court, the court is under an obligation to
refer his suit to the competent court and the court to which the suit is so referred is
bound by such reference. If a party doubts the validity of the reference it may go in
appeal to the higher administrative court.
The Law on Administrative Courts conceives certain situations in which the
question of jurisdiction requires determination from a higher court. If in a particu-
114 Administrative Courts

lar case the competent court is prevented from exercising its jurisdiction for any rea-
son such as epidemic or some other calamity; or the subject-matter of the dispute
does not clearly fall within the territorial jurisdiction of one or the other court; or
more than one court seem to be having territorial jurisdiction over the subject-mat-
ter of the dispute; or more than one court hold themselves competent to decide a
matter; or the competent court holds itself incompetent in the matter then the ques-
tion of competence is determined by the next higher court, i. e., with respect to the
competence of the lower administrative courts by the higher administrative courts
and with respect to the higher administrative courts or the lower administrative
courts in more than one state by the Federal Administrative Court. If there arises an
administrative dispute with respect to which law does not assign territorial jurisdic-
tion to any lower administrative court then the question of jurisdiction is deter-
mined by the Federal Administrative Court.24

6. General Assessment

From the foregoing description of the administrative courts and their jurisdiction
one may clearly conclude that the German law establishes a unique system of judi-
cial protection of the individual against the administrative excesses. It does not fol-
low the French model which excludes the jurisdiction of the ordinary courts to en-
tertain the administrative disputes but at the same time does not assign such dis-
putes to any other courts. On the contrary it assigns them exclusively to the adminis-
trative tribunals which constitute a part of the executive and function in close asso-
ciation with it. The German model also does not follow the common-law model in
which ultimately every administrative matter may be taken to the ordinary courts
even if a comprehensive scheme of administrative justice through independent tri-
bunals is in operation to deal with such matters. It is a model which combines the
good aspects of the French and the common-law models together. It assures that the
administrative matters which always involve the balancing of public and private in-
terests must be handled by special class of judges who have acquired and developed
a public law approach as well as an expertise in certain specific areas oflaw cover-
ing different branches of the administration. At the same time it assures full inde-
pendence to the judges from the executive influence so that they do not uphold the
administrative actions and policies without full regard to law. A close co-operation
between the judges and the administration may lead to efficiency and expediency as
it has done in France but there is no assurance that the judges will always give fair
deal to the individual when delicate choice between the administrative expediency
and enforcement of law has to be made. The German model assures that through
his experience the judge understands the implications of the administrative expedi-
ency but at the same time if such expediency conflicts with the law he can stand on
the side of law without any compromise or risk to his position.
Outsiders might think that the administrative courts are no better than the ad-
ministrative tribunals and they may be siding with the administration whenever de-
licate questions of policy are involved. But nobody in Germany carries that impres-
sion. On the contrary there are open criticisms that the administrative courts are go-
ing too far in interfering with the administrative policies and are entering into those
References 115

areas which belong to the other branches of the govemment. 25 But at the same time
nobody argues that the model is unsuitable or unworkable and therefore be reject-
ed. The German scholars are looking for solutions within the model and not out-
side. They do not argue that the jurisdiction of the administrative courts should be
curtailed. Rather they suggest that other check mechanisms should be developed so
that the courts are spared of the more problematic policy matters. 26 There are some
who find no fault with the functioning of the administrative courts even in the arena
of difficult policy matters and have found the courts to be very balanced, effective
and consistent even in such matters as planning and establishment of nuclear
plants. 27
It is difficult to say how far the German model can successfully and usefully be
received in other systems but any modified versions of the model may prove quite
effective in systems like Indian where a comprehensive scheme of expeditious, sim-
ple, and inexpensive justice is urgently needed. Part XIVA of the Constitution of In-
dia, introduced in 1976, envisages such a scheme which may prove quite successful
if independent hierarchies of tribunals in different areas of law are established with
full judicial independence and protection to their members. They would gain the
confidence of the people as well as assure expeditious justice according to law.

References

1 Basic Law, art 95 (1). See Appendix I.

2 See, in particular, German Law on Judges 1972 (DRiG) and Law on the Constitution of Courts
1975 (GVG).
3 VwGO, s41.
4 The Law on Administrative Courts 1960 (VwGO) is the general law on the constitution,jurisdic-
tion, powers, and procedure of the administrative courts in Germany. This chapter is based
mainly on the provisions of that Law. To avoid too many footnotes the provisions are, however,
sparingly cited. This Law is likely to be replaced by a Law on Administrative Courts Procedure
(VerwaltungsprozejJordnung) whose draft has already been finalised and is pending in the Feder-
al Parliament. The draft does not propose any drastic or major changes in the position of the ad-
ministrative courts. Its main thrust is on the consolidation of the Law on the Administrative
Courts, the Law on the Fiscal Courts, and the Law on the Social Courts into one code appli-
cable to all the courts in the three branches of the judiciary.
5 Statistisches Jahrbuch 1982fiir die Bundesrepublik Deutschland, 326 (1982).
6 Also above, p6.
7 Basic Law, art 19 (4). For the text see Appendix I.
8 See Gorlitz A: Verwaltungsgerichtsbarkeit in Deutschland, 17 (1970).
9 See VIe CH: VerwaltungsprozejJrecht, 4ff(7th ed, 1978).
lOIn England most of the tribunals carry a status similar to a court. But that is not true about India.
See Jain SN: Administrative Tribunals in India (1977).
11 Basic Law, arts68 (1) and 95 (2).
12 S21.
13 S30.
14 DRlG, s26.
15 Ss35-37.
16 Decision of14 Nov 1955,2 BVerwGE 321 and of29 Aug 1963, 16 BVerwGE 265.
17 Above, p3.
18 Above, pl0.
116 Administrative Courts

19 Art 79 (3) of the Basic Law prohibits amendment of certain aspects and provisions of the Basic
Law. See Appendix I.
20 The courts have foiled all attempts of taking away this right even by a sovereign British Parlia-
ment. The Constitution of India, like the German Basic Law, guarantees a fundamental right to
approach the highest court of the land - the Supreme Court of India - against the violations of
the fundamental rights (art32). Besides the supervisory jurisdiction of the High Courts against
any violation of any right as well as appellate jurisdiction of the Supreme Court against any de-
cision of any court or tribunal has been entrenched in the Constitution (arts 136,226 and 227).
With the recognition of basic structure theory one might say that these provisions lie beyond the
amending power because they constitute the core of the rule of law which is considered part of
basic structure of the Constitution. See Kesavanand Bharati v. State of Kerala. AIR 1973 SC
1461; Indira Nehru Gandhiv Raj Narain. AIR 1975 SC 2299; and Minerva Mills Ltd v Union of
India. AIR 1980 SC 1789.
21 First, in disputes relating to immovable property or rights attached to a place the jurisdiction lies
with that court in whose district the property or the place lies. Second, in all kinds of disputes
arising from the existing or past terms of employment of the plaintiff as a public officer, judge,
military servant, civil servant or a member of the civil defence corps against the public law juris-
tic persons such as the Federation, a Land, county or any other public corporation or institution
or against any public authority, the territorial jurisdiction lies with the court within whose dis-
trict the plaintiff has his official residence or, in its absence, his place of residence. In case the
plaintiff has no residence within the area of the jurisdiction of the public authority which has
taken the original disputed administrative action then the jurisdiction lies with the administra-
tive court in whose district that authority has its principal place of business. Third, subject to
first and second above, suits for invalidity of an administrative action and the mandatory suits
lie with the following courts: .
(i) Suits against a federal public authority or a federal public law corporation, institution or trust
in the court within whose district such body has its seat.
(ii) Suits in all other cases in the court within whose district the administrative act is taken or is
to be taken. But suits against a public authority whose competence extends beyond the district
of one court or against a common public authority of two or more or all Laender lie in the court
within whose district the aggrieved party habitually resides. Failing such residence within the
area of the competence of such authority, the following provision applies.
Fourth, in all other cases the territorial jurisdiction lies with the court within whose district the
defendant has his principal place of business, or place of residence, or in its absence, has his last
place of stay or residence.
22 See below, p 132.
23 See below, p 133.
24 VwGO, s53.
25 See Papier HJ: Die Stellung der Verwaltungsgerichtsbarkeit in demokratischen Rechtsstaat
(1979); Schmidt-Assman E: Verwaltungsverantwortung und Verwaltungsgerichtbarkeit. 34
VVDStRL 221 ff. (1976). For some general criticism also see Garlitz A., above, n8.
26 Id. Schmidt-Assmann, at 274.
27 Brohm W: Verwaltungsgerichtsbarkeit in modemen Sozialstaat. [1982] DOV1. Also Pakuscher
EK: Control of the Administration in the Federal Republic of Germany, 21 Int'l & Compo L Q
452, 470f(1972); and The Use of Discretion in German Law, 44 UChiLRev94, 108f(1976).
Chapter 8
Judicial Remedies and Procedure

A. Remedies

1. Nature of Judicial Remedies

In considering the nature of judicial remedies in German law a common lawyer has
to bear in mind some basic aspects of that law which are at variance with the com-
mon law. While for a common lawyer judicial remedy means remedy in the ordi-
nary courts the German law assigns administrative matters to the administrative
courts.! Judicial remedy here means remedy in the administrative courts and not in
the ordinary courts which except in few specified matters have no jurisdiction in ad-
ministrative matters. Second, although common law does not exclude administra-
tive matters from the jurisdiction of the ordinary courts, it fully recognizes the need
for specialist tribunals to deal with such matters. The German law recognizes no ad-
ministrative tribunals apart from the administrative courts. Therefore, a person can
approach the courts directly except where the law requires exhaustion of the admin-
istrative remedy in the limited sense, to be mentioned below, before coming to the
administrative courts. Thus, except when an appeal in the court is provided against
a decision of an administrative tribunal the judicial remedy in common law is of su-
pervisory nature while the remedy provided in the German administrative courts is
the primary remedy.
Third, although unlike the German law common law practically ignores the dis-
tinction between the private and public law, yet as we have already noted, it draws a
distinction between the private and public law remedies. In administrative matters
one may either seek the private law remedies by way of a suit for damages, or for
injunction, or declaration, or a public law remedy of a prerogative writ of certiorari,
mandamus or prohibition.2 Public law remedies are also called the extra-ordinary
remedies. The private law remedies may be granted by all courts of competent juris-
diction but the public law remedies are granted only by the superior courts - in In-
dia only by the High Courts and the Supreme Court. Again, the primary object of
the private law remedies is the protection of the interest of the individual while
those of public law is the protection of the public interests. Through a public law
remedy the courts see that the administration acts according to law. Consequently,
for a private law remedy one must assert the infringement of one of his rights while
for a public law remedy he need not do so in a very specific manner. Public law rem-
edies are sometimes granted even to the strangers or even to those whose rights are
not directly infringed by an administrative action.
German law draws no distinction between private and public law remedies. The
only remedy against an illegal administrative act is a private suit. With very minor
118 Judicial Remedies and Procedure

modifications these are the same kind of suits which are also filed in the ordinary
courts in private law matters. That may be one of the reasons that the administrative
courts in Germany insist on the same requirement of standing as is done in the ordi-
nary courts. Fourth, both the private and public law remedies in common law are
discretionary remedies and even though the discretion is exercised judicially they
may be refused on any ground which in the opinion of the court justifies such refus-
al. The remedies in German law are strictly statutory and if all the conditions for the
grant of a remedy are satisfied the courts cannot deny it.
Fifth, due primarily to their non-statutory character, public as well as private law
remedies in common law are full of too many technicalities and obscurities making
the choice of a citizen for one or the other remedy difficult. Although in India pri-
vate law remedies of injunction and declaration have statutory basis3 and in
England recently a procedure for an application for judicial review has been de-
vised to cover all the remedies,4 the position remains to be far from satisfactory. In
contrast to that the judicial remedies in German law are very simple and do not suf-
fer from any kind of uncertainties and technicalities. They are all in the form of a
suit and even if a person has chosen inappropriate suit he can easily convert it into
an appropriate one. Thus while the technicalities of the common-law remedies have
far too long hampered the growth of the administrative law the simplicity of the
German law remedies encourages its growth and makes the matter simpler for the
citizen.
Last, an important aspect of the legal remedies by an individual against the ad-
ministration in German law is the absence of any privileges to the administration in
the judicial proceedings. Unlike common law where the administration still enjoys
certain privileges in German law the administration, except in the matter of produc-
tion of documents discussed below, stands in the same position as a private per-
son.

2. Kinds of Suits

The German civil law divides all kinds of suits into three major categories according
to the nature of relief the plaintiff is seeking against the defendant. It may be a suit
for the modification of rights or legal relationship (Gestaltungsklage), a suit for an
affirmative relief (Leistungsklage) or a suit for declaration (Feststellungsklage). The
German administrative law also recognizes the same three categories of suits but
from the first two categories it takes out a class of typical suits and puts them under
two separate categories. These two categories are the suits for invalidity (Anfech-
tungsklage) and the suits for mandatory injunction (Verpflichtungsklage). Whatever
is left in the first two major categories of suits after taking out these classical kinds
of suits are called the general suits for the modification of legal rights (allgemeine
Gestaltungsklage) and the general suits for affirmative relief (allgemeine Leistungs-
k/age). Thus the total categories are five of which the suits for invalidity, suits for
mandatory injunction and the declaratory suits, particularly the first two, form the
major and important categories.
Suits for invalidity which are the most prominent and common among all the
suits that are brought before the administrative courts are brought for invalidating
Conditions for Judicial Relief 119

an administrative act. As a matter of rule a suit for invalidity is filed to challenge a

voidable and not a void administrative act. However, such a suit is not completely
barred against those administrative acts which though in fact are void appear only
to be voidable till they are so declared by the court. Although against a void admin-
istrative act a declaratory suit should be filed but a suit for invalidity is not ex-
cluded.
A suit for mandatory injunction is filed ifthe administrative authority refuses or
fails to take an administrative act which it is under an obligation to take. Suits of this
kind arise in the area of administration of community services and where a person
either needs some kind of allocation or permission or approval from the administra-
tion to carry out an activity or needs allocation of a loan or some other kind of so-
cial help. Even in case the administrative authority has refused to take an adminis-
trative act the proper suit is a suit for mandatory injunction and not a suit for inva-
lidity.
A declaratory suit is available to determine the existence or non-existence of a
legal relationship as well as nullity of an administrative act. Future legal relation-
ship or the possibility of such relationship in future cannot be made the subject-
matter of a declaratory suit. Similarly such suit cannot be filed to determine the ex-
istence or non-existence of certain facts. Nor can such suit be filed for determining
the validity of laws or an administrative act. A declaratory suit can, however, be
filed against the threatening administrative acts provided the situation requires a
prompt declaration from the court. Thus a declaratory suit will be admissible if the
administrative authority holds that for doing or continuing an activity the plaintiff
requires an exceptional permission while the latter considers that such permission is
not needed. 5 A declaratory suit may also be filed to determine the existence or non-
existence of a past relationship whose legal effects continue even after it has ended. 6
General or other suits for the modification of legal relationship are those which
are specifically enumerated in different provisions of the law such as a suit to modi-
fy a judgment, or for the resumption or reopening of the proceedings, or for the ex-
ecution or enforcement of a judgment, or for setting aside an arbitration award.
Such suits are not admissible if not expressly provided in law. 7
General or other suits for affirmative relief are those in which the plaintiff prays
that the defendant be compelled to do something other than taking an administra-
tive act in his favour. Such, for example, are the suits relating to the property rights
of the civil servants, suits for reimbursement or restitution, for claiming subven-
tions, and suits for any other remedial action including the matters relating to the
administrative contracts. A prohibitory suit or a suit for the discontinuance of an
administrative decision will also fall within this category. Such suits are based on
the general jurisdiction given in Sect. 40 read with Sect. 43 (2) of the Law on Admin-
istrative Courts and do not require a specific enumeration in any law.

3. Conditions for Judicial Relief

A suit must satisfy certain conditions before it is considered and decided on merits.
The court may determine without depending upon or waiting for an objection from
the defendant, and without being bound by any agreement between the parties in
120 Judicial Remedies and Procedure

this respect whether or not the conditions have been satisfied. The conditions are as
follows:

(a) Admissiblity of Administrative Jurisdiction: The subject-matter of the dispute in

which the relief is being sought must be one that lies within the administrative juris-
diction as explained in the previous chapter.

(b) Competent Court: The suit must be filed in the court which has the substantive as
well as territorial jurisdiction with respect to the subject-matter of the dispute as ex-
plained in the previous chapter.

(c) Competence to Pursue the Suit: The person who files or on whose behalf he files
the suit must be competent to pursue it. Under the law all natural and juristic per-
sons as well as associations and public authorities as provided in the state law are
competent to participate in a suit and any person who is competent to contract as
well as the legal representatives of the associations and public authorities are
competent to pursue a suit. However, every one who is competent to file or pursue a
suit is not entitled to audience in the court. While in the lower and higher adminis-
trative courts, unless otherwise ordered by the court, all those who are entitled to
pursue a suit are also entitled to audience in the Federal Administrative Court the
parties can be represented only through a qualified lawyer or a university professor
of law.

(d) Locus Standi: The requirement of standing in German law for all kinds of suits is
not the same. It differs with the kind of suit as it does in common law with the kind
of remedy sought. A suit for invalidity or a suit for mandatory injunction can be
filed only by a person whose rights have been violated by an administrative action
or non-action. An exception to this requirement may be made by law. But so long
such an exception is not made the plaintiff must establish that his personal rights
and not that of any other person have been violated. He cannot approach the court
to enforce the rights of some one else. For example, a step father cannot file a suit
against the refusal of social help to his step son. 8
An actio popularis or a suit to enforce the rights of others is not permissible. The
plaintiff, however, need not establish conclusively or beyond doubt that his rights
have been infringed. It is enough that he makes out a plausible case of infringement
of his rights and establishes that his legal position would be better if the administra-
tive action or non-action turns out to be objectively illegal.9 A person to whom a
regulatory or adverse administrative act is addressed has a prima facie case of injury
to his legal rights and he need not plead further that his rights have been infringed.
If the administrative act is not addressed to him then he must establish that even
though the administrative act is addressed to some other person it infringes his
rights as, for example, in the case of permission to a neighbour to construct on his
land in violation of the rights of the plaintiff or grant of permission to a landlord to
increase the rent with adverse effects on plaintiffs rights as tenant. But no such
claim can be established when the administrative act has nothing to do with the
rights of the plaintiff.
The requirement of standing does not play the same role in the suits for manda-
Conditions for Judicial Relief 121

tory injunction as it does in the suits for invalidity. As a rule anyone whose applica-
tion for the taking of an administrative act has been rejected by an administrative
authority has standing to file a suit. Even though he fails to make out a prima facie
case of the infringement of his rights he will have standing except in very rare situa-
tions as, for example, in a case where he applies to the incompetent authority.
The right whose infringement is asserted must be a legal right or a legally pro-
tected interest. No suit can be filed against the infringement of any political, cultur-
al, religious or economic interest. Thus a person already in a profession cannot
challenge entry of new entrants into that profession on the plea that it would have
adverse effect on his income. 1o
For standing to file a declaratory suit it is enough that the plaintiff has a legiti-
mate interest in a prompt declaration from the court. A legitimate interest need not
be a legal interest; it is wider than a legal interest. It covers every such interest which
in fact can be justified on rational considerations and includes economic, political,
cultural, and religious interests. 11 A legitimate interest in prompt court declaration
exists only when a legal relationship is disputed, i. e., the defendant either denies an
existing relationship or boasts of a relationship that does not exist. The plaintiff has
a legitimate interest in a prompt declaration from the court only if without such dec-
laration his interests are in danger. No such interest in fact exists if an administra-
tive authority approaches the court because it can wait for a declaratory suit from
the citizen or exercise its sovereign authority.12 Popular declaratory actions are as
much out of question as any other kind of actions.
Associations or other organizations such as a union for environment protection
can file a suit if any of their rights or interests have been violated by an administra-
tive act. But they cannot do so if only the rights of their members and not their own
have been violated even if a law intends to protect the collective interests of all the
members. They may be authorized by law to file suits for the enforcement of the
rights of their members but there is no demand or support for such laws and there-
fore absence of such laws is quite conspicuous.13 It is perhaps for that reason that
the courts have been overcautious in granting locus standi to the associations and
other organizations. They are 'afraid that a more liberal policy in admitting actions
for the protection of collective interests may confront them with actions having a
strongly political character' .14
On the question of standing in administrative litigation German and common
law have the same basic premise: 'the desirability of encouraging individual citizens
to participate actively in the enforcement of the law, and the undesirability of en-
couraging the professional litigant and the meddlesome interloper to invoke the ju-
risdiction of the courts in matters that do not concern him'.15 But common law does
not lay down a strict rule in this regard and its main characteristic 'appears to be the
usually very broad discretion of the court to grant or not to grant the remedy asked
for, dependent on the factual and juridical circumstances of each concrete case'.16
The British courts have issued the writ of certiorari and prohibition on the applica-
tion of a stranger who does not pursue any personal interest. 17 Even the statutory re-
quirement that only an aggrieved person can challenge the validity of an adminis-
trative action has been interpreted very liberally allowing the locus standi to those
who were not directly hit by an illegal administrative action. 18 The only provision
relating to locus standi in the new rules of practice of the British courts requires that
122 Judicial Remedies and Procedure

an applicant seeking leave to make an application for judicial review has to satisfy
the court that 'he has a sufficient interest in the matter to which the application re-
lates'.19
The Indian courts have also interpreted the requirement of standing liberally.
They insist that the person approaching the court must be an aggrieved person but
they recognize that the expression 'aggrieved person' is an elastic concept and its
'scope and meaning depends on diverse variable factors'.2ontus the courts have al-
lowed locus standi to a rate-payer to challenge the illegal action of a municipality21
and to an association for enforcing the rights of its members.22 Relaxing the require-
ment of standing further the Supreme Court has recently held that 'any member of
the public having sufficient interest can maintain an action for judicial redress for
public injury arising from breach of public duty or from violation of some provision
of the Constitution or the law and seek enforcement of such constitutional or legal
provision'.23 Similarly in the United States inspite of the restraint created by the
'cases or controversy' clause on the free extension of locus standi the courts have
taken a very liberal approach and in the words of the Supreme Court 'the trend is
towards enlargement of the class of people who may protest administrative ac-
tion'.24
Compared to this common-law approach the German law approach on the
question of locus standi continues to be quite restricted mainly because of the spe-
cific requirement of 'rights' in article 19 (4) of the Basic Law as well as in Sect.42 of
the Law on the Administrative Courts. Although through the principles of 'Rechts-
staat' and the 'Sozialstaat'read with the fundamental right to personal liberty and
equality the courts have expanded the scope of the rights but 'the fact remains that
apart from a personal and direct interest on the part of the applicant it is always re-
quired as well that this interest should be a legally protected interest'.25 The courts
would not entertain a complaint against the infringement of public rights recog-
nized or created in the general interest unless they are also intended to protect par-
ticular persons from particular harm. Accordingly, "a private person in Federal Re-
public of Germany in general cannot institute an action in the public interest if he
himself is also not affected in a specific way by the action to be challenged... Thus
the 'objective' function of judicial review of governmental action is not yet fully re-
cognised beside its 'subjective' function."26

(e) Right Choice and Presentation of Suit: The plaintiff must make the right choice
about the suit whether he should file a suit for invalidity, a suit for mandatory in-
junction, or a declaratory suit or any other kind of suit for modification of rights or
for affirmative action. The suit must be filed in writing by the plaintiff or his attor-
ney or may be recorded in the court with the help of the court staff. A suit in the
Federal Administrative Court has to be always filed through a lawyer or a university
professor of law. Copies of the suit and all other documents must be attached for
the use of other parties. The name and address of the plaintiff and the defendant,
the subject-matter of the dispute and the prayer or relief sought must be clearly
mentioned in the suit. The facts and the evidence in support has to be mentioned
and a copy of the challenged administrative act and the decision of the administra-
tive authority in the objection proceedings is to be attached. Finally, the suit must be
signed by the plaintiff or his attorney. The requirements of the description of the
Conditions for Judicial Relief 123

parties, subject-matter, and the signature are considered to be essential while others
are non-essential. Any defects in the form or content of a suit are curable and the
presiding judge may ask the plaintiff to cure them within a specified period.

(I) Exhaustion of Administrative Remedy: Before coming to the court the plaintiff
must exhaust the administrative remedy. The Law on Administrative Courts 1960
lays down the general provisions with respect to such remedy. It provides that be-
fore filing a suit for invalidity or for a mandatory injunction against the rejection of
an application to take an administrative act the plaintiff must exhaust the adminis-
trative remedy. This requirement does not apply to other cases. Even in the two
types of cases mentioned above the requirement may be dispensed with by law in
specific cases. Further, it does not apply if an administrative act has been taken by a
higher federal or Land authority such as the Federal President, or the Chancellor, or
any federal or Land minister, or if a third party has been affected for the first time
by the ruling in the administrative proceedings.
The administrative remedy is availed by filing a written objection (Widerspruch)
with the administrative authority which has taken or refused to take an administra-
tive act. The objection must be filed within a month from the notice of the adminis-
trative act or rejection of the application to take an administrative act. Since an ad-
ministrative act is required to mention the remedy against it and the time limit with-
in which it can be availed the objector would face no difficulty. In case the adminis-
trative act fails to mention the remedy and time limit objection can be filed within
one year. The administrative authority refers the objection to the next higher au-
thority which hears and decides it. A different authority may, however, be provided
by law for the disposal of an objection. Moreover, if the next higher authority is the
highest federal or Land authority (such as the Federal President or the Minister
President of a Land), the objection is decided by the same authority which took the
administrative act. Similarly, the autonomous bodies like the universities decide the
objections themselves unless the law provides otherwise. Except in a few specified
cases, on the filing of objection the enforcement of the objected administrative act is
automatically suspended.
The objection may be based both on legal as well as policy or expediency
(Zweckmii./3igkeit) grounds and the deciding authority should look into both. If the
authority finds the act neither illegal nor unsuitable on policy considerations, it will
dismiss it. But if it finds it either illegal or unsuitable it must correct, modify or set it
aside. No administrative act can be modified to the disadvantage of the objector.
The decision on the objection must be reasoned and must mention the legal remedy
against it. It must be properly communicated to the objector.
The requirement of exhaustion of administrative remedy is relaxed if either an
objection or an application to take an administrative act is not disposed of within a
reasonable time. Normally three months would be a reasonable time after the expi-
ry of which the objector or the applicant will be free to file a suit in the court, al-
though the court may postpone the suit if sufficient reasons are given by the admin-
istrative authority for the delay.
The precondition of exhaustion of administrative remedy in German law is
based on similar considerations as are applicable in common law. It gives an oppor-
tunity to the administrative authority to correct its errors. The administrative au-
124 Judicial Remedies and Procedure

thority may also go into the policy questions into which the courts cannot enter. It
also has the effect of substantially reducing the burden of the courts. However, in
common law the requirement of exhaustion of administrative remedies is a creation
of courts and its application is subject to their discretion. 27 Common law does not
lay down any fixed rules as are laid down in German law. In India the courts will
not insist on the requirement of the exhaustion of the administrative remedy if the
violation of a fundamental right is involved though of course they will insist in other
cases where the law provides an effective and adequate remedy.28

(g) Observance of Time Limit: A suit must be filed within the prescribed time limit.
Such limit is prescribed only for suits for invalidity and for mandatory injunction.
No time limit is applicable to other kinds of suits and their filing is regulated by the
general principles of laches. A suit for invalidity or a suit for mandatory injunction
must be filed within one month from the date of notice of the decision of the admin-
istrative authority on the objection of the plaintiff or, in case the requirement of ob-
jection is inapplicable, within one month from the date of notice of the administra-
tive act or of the rejection of an application to take an administrative act. Time does
not begin to run unless the administrative act or the decision on the objection clear-
ly states the legal remedy, the court with which such remedy lies, the seat of the
court, and the time limit for the remedy. If no statement or a wrong or ambiguous
statement is given then the plaintiff can file the suit within a period of one year from
the date of notice unless filing of suit within one year is prevented by an act of God
or a wrong statement in the administrative act or decision on objection that no legal
remedy exists.
Delay in filing a suit may be condoned by the concerned court if for no fault of
his the plaintiff is prevented from approaching the court within the prescribed time
limit. In that case he must file the suit along with an application for condonation of
delay within two weeks of the removal of the hinderance. The application must be
substantiated by the facts and evidence making out a prima facie case for condona-
tion. The delay may be condoned even without a formal separate application if the
reasons for delay have been clearly given in the suit. The decision to condone the
delay is final but a refusal to condone the delay is subject to appeal or revision as
the case may be.

(h) Absence of Sub-judice: At the time of filing a suit the plaintiff must ensure that
no suit on that matter is pending in any court including a court in some other
branch of the judiciary other than a constitutional court. The pendency comes in the
way of a suit only if there is an identity between the parties and the subject-matter of
the dispute. 29
Principles of Procedure 125

B. Procedure

The procedure in the administrative court is governed and guided by some basic
principles underlying it. For a proper comprehension of that procedure one must
know and keep these principles in sight.

1. Principles of Procedure

(a) Inquisitorial Procedure: In contrast to the adversary procedure in the common-

law courts the German administrative courts follow the inquisitorial procedure. In
the adversary procedure it is the responsibility of the parties to present their case in
the best possible manner and the court maintains an attitude of complete neutrality
while in the inquisitorial procedure responsibility lies upon the court to investigate
the truth without being bound by the pleadings and evidence presented by the par-
ties. In inquisitorial procedure the court may ask the parties to complete and correct
the pleadings and produce such evidence and witnesses which it considers neces-
sary to arrive at a right decision. If the court is unable to fulfil its obligation to know
the truth through the cooperation of the parties it may use any other means at its
disposal. It may not, however, refer the matter back to the administrative authority
which will be contrary to the principle of separation between the judiciary and the
executive. The court may also raise legal issues which the parties have not raised but
are relevant to the disposal of the suit. It is not bound by the admissions of the par-
ties. Thus short of filing a suit on behalf of the parties the court may take all the nec-
essary measures required to arrive at the truth and right application of law. The ra-
tionale for inquisitorial procedure in administrative proceedings lies in the involve-
ment in such proceedings of the public interest apart from the interest of the parties.

(b) Principle of Disposal: Inspite of the inquisitorial procedure in the administrative

courts the proceedings stand at the disposal of the parties. Unlike the criminal pro-
ceedings which once started are out of the hands of the parties the proceedings in
the administrative courts can be terminated at any time by an agreement between
the parties. The plaintiff has the freedom to amend or withdraw his suit and the
court cannot go beyond the prayer of the plaintiff in disposing of the suit. Against
the decision of the court only the parties may go in appeal unless in any case the re-
presentative of public interests considers it necessary to file such appeal or revision
in the public interest.

(c) Expeditious Procedure: The procedure in the administrative courts is very expe-
ditious and as far as possible a suit is disposed of in one hearing. To expedite the
procedure the presiding judge or, on assignment, one of his associates is authorized
to take all the steps necessary for the oral hearing well before the date of such hear-
ing. He may in advance get the formal defects in the pleadings corrected, unclear
applications clarified, appropriate applications presented, incomplete information
completed, and seek all other necessary clarifications for the disposal of the case.
Moreover, under a temporary Law for Reducing the Burden of the Administrative
126 Judicial Remedies and Procedure

and Fiscal Courts of 1978 an administrative court may decide a suit without oral
hearing if it is of the opinion that the suit does not involve any difficult question of
law or facts and the matter is already clear.3o Quite a substantial number of suits are
disposed of by resorting to this procedure.
From the statistical figures in the following table it appears that although the ar-
rears are on increase year after year, eighty to ninety percent of the total suits, ap-
peals, revisions, and complaints admitted in different courts are disposed of in the
same year. Thus a suit should normally pass through all the three stages in about
three years. But from the studies conducted by some German scholars it has been
found that on an average a suit takes five to six years before it is cleared through all
the three stages.3! In a classic case of delay of more than ten years the European
Court of Human Rights held that such a long delay was violative of the human
rights. 32 They have called for immediate steps to deal with the problem.33 But cer-
tainly the total time taken in the disposal of administrative proceedings in the com-
mon law countries like India from the tribunal stage till the high court may be much
longer. 34

Table showing admission and disposal of suits, appeals, revisions, and complaints in different
courts.
Year Court Pending at the New Disposal Pending at the
beginning admissions end

1978 Lower adminis- 64,149 94,372 85,340 67,991

1979 trative courts 68,164 104,750 87,444 69,078
1980 68,986 131,441 97,752 106,673
1978 Higher adminis- 20,875 45,088 34,480 31,483
1979 trative courts 31,525 42,461 46,270 27,716
1980 27,714 42,500 42,032 28,182
1978 Federal Adminis- 1,510 2,255 2,053 1,712
1979 trative Court 1,712 3,969 3,411 2,270
1980 2,270 8,439 6,020 4,689

Source: Statistisches Jahrbuch 1982 fUr die Bundesrepublik Deutschland

(d) Oral and Direct Procedure: As a matter of rule all proceedings in the administra-
tive courts are oral unless exceptions are made by law. The court always bases its
decision on the materials brought before it in the oral proceedings, i. e., through the
procedure in which the parties have a full opportunity to express themselve~. The
oral proceedings can be dispensed with only if either the court unanimously decides
that the suit does not involve any difficult question of law or facts, or it is dismissed
in a preliminary ruling and the plaintiff does not file an application within a month
for oral hearing, or if all the parties agree to dispense with the oral proceedings, or if
the court decides through an order which is not a judgment. The larger divisions of
the higher administrative courts and the Federal Administrative Court must, how-
ever, always decide after oral proceedings.
The proceedings are direct in the sense that all evidence is recorded during the
oral proceedings except when a judge is authorized to record it on commission or
some other court has been requested to record it.
Principles of Procedure 127

(e) Open Proceedings: The proceedings of the administrative courts are open to the
public except when the court under specific conditions provided in law decides to
hold the proceedings in camera. Such conditions are danger to the security of state,
public order or morality; likelihood of adverse effect on the legal interests of a party
or a witness; disclosure of private affairs which might lead to prosecution; and if a
person below sixteen years of age is examined. The judgment is always announced
in the open court unless by specific order the court decides that due to the existence
of any conditions mentioned above any part of the judgment will not be open to the
public.

(f) Opportunity to be Heard: The German Basic Law grants a right of hearing to
every one in all the courtS.35 Hearing does not always mean an oral hearing36 but it
certainly means an opportunity to a party to avail all means in support and defence
of a plea on legal as well as factual matters. The Law on the Administrative Courts
provides that the parties must have an opportunity to make and support their
prayers and applications; the presiding judge must discuss the subject-matter of the
dispute with the parties on law as well as facts; the parties must be informed of all
the dates for the recording of the evidence; and the judgment must be based only on
such facts and evidence on which the parties had an opportunity to express them-
selves. Advancing the date for appearance before the court, denial of adjournment,
holding of proceedings without the plaintiff, rejection of legal aid, or refusal to in-
vite a lawyer amount to denial of hearingY

(g) Free Evaluation of Evidence: The evaluation of evidence in the administrative

courts is not governed by any statutory rules which give superiority to one kind of
evidence over the other. The court decides on the basis of conviction formed from
the totality of the proceedings and not on the basis of evidence alone. The court re-
fers to the personal expressions and the behaviour of the parties as well as of the
witnesses in the proceedings, particularly to their refusal to answer or express any
opinion on certain questions. Whatever has not been the subject-matter of the pro-
ceedings is, however, not taken into account in forming the conviction or basing the
decision. The court has to rely on the record prepared by the court clerk during the
course of oral proceedings to which are also added supplementary information and
corrections supplied by the parties with respect to their pleadings or any other writ-
ten briefs. Any documents or records ordered by the court, particularly the records
of any proceedings before the administrative authorities, form the part of the record
of the court only if they are produced in the oral proceedings and their contents
have been reproduced or discussed during the course of such proceedings. Any evi-
dence taken on commission or by any other court on request should also be re-
corded by the court clerk at least in its substance to make it part of the record.
In the judgment the court must specify the reasons for arriving at a particular
conclusion. It is not enough to state that the conclusion is derived from the totality
of the proceedings. It must specify the particulars which lead to its conclusion.

(h) Duty to Help the Parties: Since in the lower and higher administrative courts the
parties are under no obligation to engage a lawyer, the parties may suffer from tech-
nical knowledge about the court procedure as well as law. The courts are, therefore,
128 Judicial Remedies and Procedure

under an obligation to help the parties in setting the record straight. It is the duty of
the presiding judge to see that the mistakes of form are corrected, unclear applica-
tions or prayers are clarified, proper and required applications or prayers are made,
incomplete statements of facts are completed, and all other clarifications about the
facts necessary for the adjudication of the matter are provided. Finally, the presid-
ing judge must discuss the factual as well as legal points with the parties before
reaching a decision. The common-law system imposes no corresponding obligation
on its judges.

(i) Simplicity of Procedure: The procedure in the administrative courts is dominated

by simplicity and non-technicality. No forms of action need be observed, no lawyer
except in the Federal Administrative Court, need be engaged. Any person can file
his suit on an ordinary piece of paper. He need not do even that. He can just walk
into the office of the court and get his suit recorded with the help of the court staff.
The plaintiff has to pay only a nominal fee and in genuine cases free legal aid is
available.

2. Procedure in the Court of First Instance

It has been noted above that in addition to the lower administrative courts the high-
er administrative courts and the Federal Administrative Court also have original ju-
risdiction in certain matters. 38 With respect to those matters these latter two courts
are also the courts of first instance. The procedure discussed below is, as much ap-
plicable to them in their original jurisdiction as to the lower administrative courts.
The procedure in an administrative court starts with the filing of a suit. On the
filing of the suit the court examines whether the suit satisfies all the conditions men-
tioned above for its admissibility. In case the court lacks territorial or substantive ju-
risdiction with respect to the suit it would, on the application of the plaintiff, refer it
to the appropriate court. If the court finds the suit inadmissible or obviously base-
less it may dismiss it through a preliminary ruling before a date for oral proceedings
is fixed. Within a month of such ruling the parties may apply for oral proceedings.
If they do not, the ruling becomes a final judgment. In case the suit is admissible
and well founded the presiding judge informs the defendant about the suit asking
him to present his written reply within a fixed time. Mter that the court examines
the subject-matter of the dispute in the presence of the parties without being bound
by their pleadings or offer of evidence. For the oral proceedings the parties should
submit written briefs for which the court may fix a time limit. The presiding judge or
any other judge nominated by him takes all the steps which are necessary for the
disposal of the suit on the date of oral proceedings. He may also ask the parties to
reach an amicable settlement and the parties may enter into a part or full compro-
mise in writing.
As soon as the date for the oral proceedings is fixed the parties are informed of it at
least two weeks in advance. In case of Federal Administrative Court they have to be
informed four weeks in advance. In urgent cases the presiding judge may give a shor-
ternotice. In the notice the parties are informed thatthey can absentthemselves at their
own risk because the court can decide even without the participation of the parties.
Procedure in the Court of First Instance 129

On the assigned day the presiding judge opens the oral proceedings in the pres-
ence of his colleagues on the bench by announcing the name of the parties to the
suit. Then either the presiding judge or an associate judge, to whom generally the
case is assigned, states the material contents from the file of that suit. When the
judge has finished the parties are given the chance to make their submissions and
arguments. The presiding judge discusses the subject-matter of the dispute with the
parties on facts as well as law. He also asks his colleagues to raise any questions. M-
ter the discussion and questions the presiding judge declares the oral proceedings
closed.
For the taking of evidence the principle of directness applies and therefore only
in exceptional circumstances written evidence of the witnesses or experts is accept-
ed. The court may call upon the eye witnesses, experts, parties and the documents.
Besides it may conduct judicial inspections and collect other official information.
Parties are rarely examined as witnesses because the court cannot rely on their evi-
dence so long as some other evidence is available. The parties are informed of all
the dates for the taking of evidence and are entitled to attend. They can put ques-
tions to the witnesses and the experts. On the validity of an objection to a question
the court decides.
The court may compel the administrative authority to give any information and
submit the documents and records relevant to the disposal of a dispute. But a
competent supreme or supervisory authority may refuse to do that if the disclosure
of the contents of a document or record or of any other information will be injuri-
ous to the interests of the Federation or a Land or if according to law or their nature
certain proceedings are required to be kept confidential or secret. The decision of
the authority, however, is not conclusive and on the application of a party the court
may still examine whether the legal requirements for the refusal to produce a docu-
ment or record or to give an information are substantiated. The concerned authority
is invited at the time of such examination. If the court is satisfied that substantial
reasons exist for the refusal to produce a document or give an information it may
uphold the claim of the authority otherwise it may reject the claim and ask to pro-
duce the document or disclose the information as the case may be. The order of the
court is subject to appeal. Thus on the production of documents what has been at-
tained in common law through a long legal battle in the courts has been statutorily
laid down in the German law. 39
Mter the closure of the oral proceedings either on the same day or on any other
day not later than two weeks from the closure of such proceedings, the court pro-
nounces its judgment in the matter. The courts give as many as five kinds of deci-
sions but unless otherwise provided by law a suit is always decided through a judg-
ment. 40 The judgment is given after discussion and consultation among all the
judges of a division, including the lay judges. But it is written and signed only by the
professional judges. Only those judges who have participated in the oral proceed-
ings participate in the judgment-making. However, if the constitution of a division
has been changed in between the oral proceedings and the judgment the newly con-
stituted division may base its decision on the recorded evidence. The judgment is ei-
ther read out by the presiding judge in the open court or it is served on the parties
along with its copies at the counter of the court. If the judgment is given without
oral proceedings then it is not read out in the court but is only served on the parties.
130 Judicial Remedies and Procedure

As soon as the judgment is read out or served on the parties it becomes operative
and it also becomes final on the expiry of the time limit to challenge it.
The judgment is given in a specified form.41 It must have successively a title -
"In the name of the People" -, name of the parties, name of the court and of the
judges constituting the division, the operative part, statement of facts, reasons for
decision, and the legal remedy against it including the name of. the court, its loca-
tion, and the time limit within which the remedy has to be availed. The formulation
of the operative part depends upon the kind of suit and whether it is allowed or dis-
missed. If the suit is dismissed the court simply writes that the suit is dismissed. If it
is allowed the court has to mention the original administrative act and the adminis-
trative decision on objection which are reversed by the court. In case the adminis-
trative act has already been enforced or executed and the plaintiff prays for the re-
versing of the consequences the court also mentions that the administrative authori-
ty is under an obligation to reverse the execution in a specific manner. In case a suit
for mandatory injunction is allowed the operative part mentions that the defendant
administrative authority is obliged to take the applied administrative act if the mat-
ter in claim is mature. If the matter is not mature the operative part shall state that
the defendant administrative authority is under an obligation to take a decision in
accordance with the opinion of the court. If a suit for any affirmative relief is al-
lowed the court will mention the sum which the defendant is under an obligation to
pay. The operative part always provides as to who bears the costs of the suit.
The court may correct any typing, accounting or similar other mistakes in the
judgment without any oral hearing. Any other factual mistakes or ambiguities in the
judgment may be removed within two weeks of the judgment by an order of the
court. If any prayer of the participants on facts or on the question of costs has been
omitted the court may supplement it by a supplementary decision on an application
within two weeks of the judgment.
A judgment becomes res judicata between the parties and their legal representa-
tives once the legal remedy against it has been exhausted or is not availed within the
specified time or has been waived. The res judicata operates against any proceed-
ings with respect to that matter even in other branches of the judiciary. To the extent
a judgment modifies legal relationship it is binding even on the third parties or oth-
er persons.

3. Appeal, Revision, and Complaint

In case the Federal Administrative Court is the court of the first instance, there is no
further remedy against its decisions. However, against the decisions of the lower
and higher administrative courts one may pursue either an appeal (Berufung) or re-
vision or a complaint (Beschwerde). Appeals are generally filed in the higher admin-
istrative courts against the decisions of the lower administrative courts, revisions
against the decisions of the higher administrative courts in the Federal Administra-
tive Court, and the complaints both against the decisions of the lower administra-
tive courts as well as higher administrative courts. Appeals and revisions are filed
against the judgments including the provisional judgments while a complaint is
filed against the orders. An appeal or complaint may be filed on questions of law as
Appeal, Revision, and Complaint 131

well as facts while a revision can be filed only on questions oflaw. In an appeal and
revision the court not only invalidates or upholds the decision of the lower court but
it may also modify it. In revision the court may also refer it back to the court below.
Like suits, appeals, revisions, and complaints are inadmissible if certain condi-
tions are not satisfied. Thus one must choose proper remedy. One must be compe-
tent to pursue the remedy. Generally, it is the parties to the judgment who have such
competence. But even a third party affected by an order may file a complaint. Simi-
larly, representative of public interests may file an appeal or revision against a deci-
sion if he considers that the decision goes against the interests which he represents.
Again, the person seeking the remedy must be one who has been adversely affected
by a decision. The form of the remedy and the time limit to avail it must be ob-
served. Finally, the matter must be ripe for the remedy, i. e., the remedy can be
sought only against the decisions which have already been given. If a remedy is de-
clared inadmissible one may pursue it afresh within the time limit.
The right to pursue a remedy may be waived, the remedy may be withdrawn,
and the parties may enter into a compromise. The remedy may be denied to the per-
son who seeks it but a decision cannot be modified to his disadvantage unless a
cross remedy is also sought. After either the remedy has been exhausted or if no
remedy is provided a decision cannot be challenged even for procedural defects.
There is no rule which makes court decisions null and void for procedural viola-
tions.

(a) Appeal: An appeal may be filed against any final judgment including partjudg-
ments and interlocutory judgments of lower administrative court in a higher admin-
istrative court. However, right to appeal may by law be made dependent on the
leave of the court with respect to certain specific areas of law. Such leave may be
granted only if the challenged judgment either involves a fundamental question of
law, or differs from a judgment of the Federal Administrative Court, or of a higher
administrative court and is based on such difference. But no such restriction will
operate for more than five years at a time.
The appeal is presented in the court whose judgment is being challenged, al-
though it may also be filed in the appellate court. An appeal must be filed within
one month from the notice of the judgment. It must be in writing and signed by the
appellant. It must denote the challenged judgment and must include a specific
prayer. It is not necessary that the grounds of appeal and the facts and evidence be
mentioned in the appeal although it is always desired. On the presentation of ap-
peal the higher administrative court examines whether the appeal is permitted un-
der law and satisfies the requirement of form and time limit. If it lacks in any of
these requirements it is rejected as inadmissible. The court procedure for an appeal
is the same as for a suit. The higher administrative court decides the appeal within
the scope of the original dispute although of course it may consider new facts and
evidence. The appellate court can amend a judgment only to the extent to which it
has been prayed in the appeal. It may finally dispose of the appeal itself or refer it
back to the lower administrative court if the latter has not decided on a particular
point, or its procedure suffers from a material defect, or if some new facts or evi-
dence have come to knowledge which are material for the decision.
132 Judicial Remedies and Procedure

(b) Revision: A revision is normally pursued in the Federal Administrative Court

against the judgment of higher administrative courts. But under certain conditions a
revision in the Federal Administrative Court is also possible against the judgments
of the lower administrative courts and a Land may also provide for a revision in-
stead of an appeal against a judgment of the lower administrative court in the high-
er administrative court. A revision against a judgment of a higher administrative
court may be filed in the Federal Administrative Court if either the judgment in-
volves a fundamental question oflaw, or differs from a decision of the Federal Ad-
ministrative Court and is based on such difference,42 or is based on a defective
procedur~. In all these cases admission of the revision is dependent on the leave of
the court against whose judgment revision is being sought. But no such leave is re-
quired if the judgment is based on a material procedural defect such as the deciding
court was not properly constituted, or a judge excluded by law or suffering from bi-
as participated in the decision making, or if a party was not represented according
to the provisions of law, or if the oral proceedings were not held in public, or if the
judgment is not furnished with reasons.
A revision in the Federal Administrative Court against a judgment of a lower
administrative court is available only if the parties agree to bypass the right to ap-
peal and that too only if either a fundamental question of law is involved or the
judgment differs from a decision of the Federal Administrative Court. A revision
against the decision of the lower administrative court is also available if the right to
appeal in the matter is denied by a federal law. For such revisions leave of the court
is needed unless the judgment suffers from any of those weaknesses which exclude
the requirement of leave of higher administrative court mentioned above in case re-
vision is sought against the decision of that court. Further, and that is very impor-
tant, a revision can be based only on the violation of a federal law or the violation of
the law of administrative procedure of a Land whose provisions are in consonance
with the provisions of the federal Law of Administrative Procedure of 1976. Thus
questions of pure Land law are not revisible in the Federal Administrative Court. 43
The revision is filed with the court whose judgment is sought to be revised with-
in a month from the notice of such judgment. It has to be filed in writing either
through a lawyer or a professor of law. It must specify the challenged decision,
make a specific prayer, and mention the facts and the legal defects. In case it is
based on the violation of any procedural provisions it must also mention the violat-
ed norm. The court with which the revision is filed sends it to the Federal Adminis-
trative Court which examines whether the revision is admissible under the law and
satisfies the legal requirements of form and time limit and is supported with rea-
sons. If it suffers from any of these defects the court holds it inadmissible. If it is not
well founded then the court rejects it. If the reasons for decision in the challenged
judgment show a violation of existing law but the decision is otherwise on other
grounds right, then the revision has to be rejected.
If the Federal Administrative Court finds the revision to be well founded then it
may either dispose of the matter itself or may reverse the challenged judgment and
refer the matter back for further proceedings and decision. The court to which the
reference is made has to base its judgment on the decision of the Federal Adminis-
trative Court in the revision. In other respects the procedure at the revision stage is
the same as in the appellate court or in the court of the first instance. The only strik-
Interim Relief 133

ing difference is that the revision court does not go into the questions of fact which
it accepts as determined by the lower court or courts unless the admissible grounds
for revision are based on or result from factual determination.

(c) Complaint: Complaints are filed against those decisions of the lower administra-
tive courts which are not a judgment or a preliminary ruling. Only in three specific
cases - decisions on the question of production of confidential documents or infor-
mation, decisions rejecting an appeal as inadmissible, and decisions refusing leave
to file a revision - a complaint can be filed against the decision of a higher adminis-
trative court. No complaint is allowed against the procedural directions, clarificato-
ry orders, decisions about the adjournment or fixing of a date, and orders relating to
the acceptance or rejection of evidence or relating to the joining or separating the
proceedings and claims. Nor can a complaint be filed against decisions relating to
costs or fee or other payments not exceeding one hundred German Mark.
A complaint is filed in writing in the court whose decision is challenged within
two weeks of such decision. If the court finds the complaint in order and well-
founded then it grants the requested relief otherwise it immediately sends the com-
plaint to the court of complaint, i. e., the higher administrative court or the Federal
Administrative Court as the case may be and informs the parties accordingly. The
court of complaint examines the admissibility and soundness of the complaint and
if it finds it to be admissible as well as well-founded it decides through a court order
without holding any oral proceedings though of course oral proceedings may be
held if necessary.

4. Interim Relief

One of the important problems of administrative law is whether before the final dis-
posal of a matter the administration may be restrained from taking or compelled to
take an action or asked to reverse an action if it has already taken one. The German
law provides a definite answer to this problem. 44 As a matter of rule as soon as an
objection before an administrative authority, or where no objection is required, a
suit for invalidity in the court is filed against the validity of an administrative act,
the operation of such act is automatically suspended. Similarly other administrative
acts modifying the legal relationships or declaratory acts become inoperative as
soon as an appropriate suit is filed in the court. The only exceptions to this rule are
the administrative acts relating to the payment of public taxes and costs, urgent po-
lice measures such as regulation of traffic or dissolution of an unlawful assembly,
any other acts provided in a federal law, and any other cases in which the adminis-
trative authority which has taken the administrative act or the authority before
whom an objection is pending orders that the act requires immediate enforcement
either in the public interest or in the overwhelming interest of a party. In this last
case the authority must give written reasons for its order, though no such reasons
need be given if immediate enforcement is required in the public interest to meet an
emergency or avoid any danger, particularly, to the life, health or property.
These exceptions are, however, not absolute and have been further restricted by
law. Unless a federal law provides to the contrary the administrative authority be-
134 Judicial Remedies and Procedure

fore whom an objection against an administrative act is pending may suspend the
operation of any administrative act covered by the exceptions if it is satisfied that
there exists no ground for the immediate enforcement of the administrative act or,
in case of demand for payment of a tax, the demand may be suspended against se-
curity if the authority doubts the legality of the tax or considers it inequitable and
not based on predominant public interest. But the administrative authority is not
the only and last resort for this purpose. A person may apply to an administrative
court even before the filing of a suit for the suspension of the operation of the ad-
ministrative act covered by the exceptions. The court may uphold his application if
it is satisfied that the immediate enforcement of the administrative act is not neces-
sary either in the public interest or in the overwhelming interest of a party. No im-
mediate enforcement is considered in the public interest if the suit is apparently
sound. Even if the suit has equal chances of success and failure the court will still
examine whether the public interest or the interest of a party clearly outweighs the
interests of the applicant so as to allow an immediate enforcement. There is no pre-
sumption that the taking of an administrative act serves the public interest justifying
its immediate execution. Only if the applicant's suit is clearly hopeless the court will
refuse to suspend the operation of the administrative act.
Further, the court may also set aside the enforcement or execution of an admin-
istrative act if it has already taken place and ask the administrative authority to re-
store the status quo ante. These questions are decided expeditiously through an or-
der without oral proceedings and in very urgent cases sometimes even by the presid-
ing judge alone. The order is unchallengable if it upholds the request of the appli-
cant. In case it rejects the application, a constitutional complaint may be filed with
the Federal Constitutional Court. It has been held by the Federal Administrative
Court that such measures of the administration which let the suspending effects of
an objection pass by not leaving any time to the affected person to file an objection
against an administrative act violate article 19 (4) of the Basic Law and are therefore
invalid and illega1.45 Thus the plaintiff on whom a notice was served at 1 P. M. on
Saturday with the direction to remove his stall by Monday could successfully chal-
lenge the legality of the action of the authorities in removing his stall early in the
morning at 8 A. M. on Monday. The court held that the act of the defendant authori-
ties violated article 19 (4) because it did not give enough time to the plaintiff to seek
remedy against the notified decision. 46
With respect to suits for mandatory injunction or other suits for affirmative re-
lief the interim relief is granted through interlocutory orders by the administrative
courts. The order is passed on a written application of a party making out a prima
facie case in its favour. They are passed either with respect to the subject-matter of
the dispute if there is a danger that through the change of existing conditions the re-
alization of a right of the applicant would be frustrated or materially impeded, or
for the regulation of an interim condition with respect to a disputed legal relation-
ship if the regulation is necessary either to prevent a material loss or a threat from
an authority or on some other ground. In the former case the applicant must show a
prima facie right whose realization by the change in the existing conditions is en-
dangered. In the latter a legal relationship must be disputed whose provisional reg-
ulation is necessary. In examining the question whether the regulation is necessary
not only the interests of the applicant but also the public interest will be taken into
Reopening of the Proceedings 135

account. If the public interest is predominant, the court may refuse to pass an inter-
locutory order as, for example, in case of an application to grant interim driving li-
cence to the applicant who has violated many provisions of traffic law.
No interlocutory order will be passed which forestalls the decisions on the main
issue or amounts to the disposal of the main dispute. Therefore, normally no inter-
locutory order is granted to compel an administrative authority to take an adminis-
trative action because it would amount to winning the case without its disposal.
However, in appropriate cases such as permitting a student to attend the next higher
class till the suit is decided, an interlocutory order may be passed asking the admin-
istrative authority to take the required action.
An application for an interlocutory order may be allowed even before the filing
of a suit though in such cases the court may ask the applicant to file the suit within a
specified time.

5. Reopening of the Proceedings

The court proceedings which have concluded in a final disposal of the matter and
have become res judicata may be reopened either through a suit for nullity or
through a suit for restitution of the proceedings. 47 A suit for nullity may be filed if
either the deciding court was not constituted according to the legal provisions, or a
judge who was legally disqualified to act as a judge participated in the decision
making, or a party was not represented in the proceedings as required by law. Ex-
cept in the last case no suit for nullity can be filed if a legal remedy in a higher court
su_ch as an appeal or revision is available. A restitution suit may be filed if either the
opposite party is guilty of intentionally or negligently violating his duty to take an
oath for his testimony on which a judgment is based; or a document on which a
judgment is based was wrongly prepared or forged; or if a witness or expert is guilty
of violating his duty to express the truth in respect of his statement or opinion on
which the judgment is based; or if the judgment has been obtained by the opposite
party or its representative through the exercise of a criminal act in relation to the le-
gal dispute; or if a judge who has incurred criminal liability by violating his duty as
a judge with respect to the subject-matter of the dispute has participated in the judg-
ment; or if the judgment of any court on which the challenged judgment is based
has been overruled in another binding judgment; or if a party has come to know of
an earlier binding judgment in the same matter or of a document on the basis of
which he could get a favourable decision. The suit for restitution can be filed only if
the plaintiff was excluded to make his claim in the original proceedings or in appeal
etc. without any fault on his part.
The suit for nullity or for restitution may be filed as much by the representative
of the public interest as by any other party. It is filed in the court whose judgment is
challenged and must be filed within one month of the knowledge of the ground for
such suit. Mter the expiry of five years from the coming into effect of a judgment no
such suit can be filed. The suit must mention the challenged judgment and the facts
and other circumstances on which it is based. On the filing of the suit court ex-
amines its admissibility and if it finds it admissible it follows the same procedure as
in other kinds of suits and decides about the disputed matter. Against any decisions
136 Judicial Remedies and Procedure

and final judgment in such suit the parties have the same right to approach the high-
er court as they would have in any other suit.

6. Execution of Judgments
Unless otherwise provided in any law the judgments or orders of the administrative
courts are executed or enforced in the same manner as the judgments or orders of
the ordinary courts between private parties. 48 For the execution of judgments in fa-
vour of the Federation, a Land, an association of communes, or a commune the
provisions of the Law on Administrative Executions 1953 may be invoked which
provides for a special and quicker enforcement. An interesting and noteworthy
aspect of the German law on the execution of judgments of the administrative
courts is that the court may order a penalty upto DM 2,000 in case the administra-
tion fails to comply with a judgment ordering restitution of status quo ante, or de-
claring the refusal to take or non-taking of an administrative act illegal, or granting
an interim relief. The penalty may be repeated and enforced. 49

C. Concluding Remarks

The foregoing description of the judicial remedies and their procedure makes it
quite clear that the scope and reach of judicial remedies in German law is much
wider than in common law. Except, where a suit for declaration or injunction is per-
missible or an appeal is allowed against an administrative decision, the common
law judicial remedies are only of supervisory nature which do not let the courts go
into the merits of the dispute. In German law on the other hand the judicial remed-
ies are the primary and final remedies which authorize the courts to go into every
aspect of the matter to determine its legality. Further, the German law remedies are
quite efficient and effective. Resort to them not only suspends the operation of a
challenged administrative action automatically but the courts are also empowered
to give such other interim relief as is appropriate in a case. The remedies are free
from all technicalities and obscurities associated with common-law remedies and
can be availed without the help of a lawyer even by a citizen who does not know
much about the law and procedure. The procedure is quite simple and expeditious.
Its inquisitorial nature does not tum the court into a prosecutor or defender of the
administration. On the contrary it becomes helpful to the helpless citizen because
the state has enough resources to support and defend its position. The judge is an
active participant in the proceedings and a helper of the parties in arriving at the
right decision rather than sitting neutral to be guided by them. In matters of remed-
ies and procedure the administration stands in the position of any other party and
enjoys no special privilegs as it does in common law in some respects.
The total duration of the proceedings is much shorter than in countries like In-
dia yet there is a discontentment among the German scholars about the delay in the
administrative courts and their increasing arrears. Concrete suggestions are being
made to face and solve this problem. Some of the suggestions are that the number of
References 137

instances must be reduced from three to two - only one appeal or revision against
the decision in the first instance; the oral proceedings must be restricted only to dis-
putes in which difficult questions of law or fact are involved; and unless a dispute
involves a difficult question of law or fact or a legal question of fundamental impor-
tance it may be decided by a single judge instead of a full division. 50 The last two
suggestions have already been included in a draft legislative proposal on the proce-
dure in the administrative courtS. 51 Certainly denial of oral proceedings will have an
adverse impact on the right of hearing but a balance has to be sought between the
advantages of oral hearing and the disadvantages of the delayed justice.
There are no other serious criticisms of the remedies or their procedure in the
administrative courts. The people appear to be quite contented with their simplicity,
expediency, adequacy and effectiveness.

References
1 See above, p.l04ff.
2 This distinction between the private and public law remedies in administrative matters has been
abondoned in the federal courts in the United States where now only private law remedies of
injunction and declaration are sought against the administrative excesses.
3 See the Specific Relief Act 1963, ss 34-41.
4 Rules of the Supreme Court (Amendment No 3) 1977, S I No 1955 (L 30) which came into force
on Jan 11, 1978. Now enacted in the Supreme Court Act 1981.
5 Decision of25 May 1962, 14 BVerwGE 202.
6 Decision of7 Oct 1955,2 BVerwGE 229.
7 Tschira 0, Glaeser WS: Verwaltungsprozessrecht. 216 (3d ed, 1977). See also decision of 20 July
1962, 14 BVerwGE 323.
8 Decision of 10 Feb 1960 BVerwG [1960) DVB1437.
9 Ule CH: Verwaltungsprozessrecht. 165 (7th ed, 1978); Tschira, Glaeser, above, n 7 at 46ff.
10 Ule, id. at 167. Also decision of 28 June 1963, 16 BVerwGE 187.
11 Decision of 7 Oct 1955, 2 BVerwGE 229, 231.
12 Compare, decision of 5 March 1968,29 BVerwGE 166, 171.
13 For an opposition to the introduction of such laws see Schmidt-Assmann E: Verwaltungsverant-
wortung und Verwaltungsgerichtsbarkeit. 34 VVDStRL 222, 272 (1976).
14 van Dijk P: Judicial Review of Governmental Action and the Requirement of an Interest to Sue.
194 (1980).
15 de Smith SA: Judicial Review of Administrative Action. 409 (4th ed, 1980 by EvansJM). For a
similar statement on German law see Ule, above, n 9 at 165.
16 van Dijk, above, n 14 at 72.
17 de Smith, above, n 15 at 416, 418.
18 See, for example, R v Liverpool Corporation. expo Liverpool Taxi Fleet Operator's Association
[1972) 2 QB 299 and R v GLC, exp Blackburn [1976) I WLR 550.
19 RSC, Ord 53, r 3 (5) cited in de Smith SA, above, n 14 at 415.
20 JM Desai v Roshan Kumar. AIR 1976 SC 578. Among such factors the court mentioned the con-
tent and intent of the statute of which contrvention is alleged, the specific circumstances of the
case, the nature and extent of petitioner's interest, and the nature and extent of the prejudice or
injustice suffered by him.
21 Vardarajan v Salem Municipality. AIR 1973 Rom 55.
22 Diva Karan v Director Dy. Fishries. AIR 1975 Ker 9; Warangal Chamber of Commerce v Director
of Marketing. AIR 1975 AP 245. For more cases and details see Jain MP, Jain SN: Principles of
Administrative Law. 399 ff (3d ed, 1979).
23 SPGupta and Others v Union of India&Others. AIR 1982 SC 149 at 194. Also National Textile
Workers Union v PR Ramakrishnan. AIR 1983 SC 75.
24 Association of Data Processing Service Organizations V. Camp. 397 US 150, 154 (1970).
138 Judicial Remedies and Procedure

25 van Dijk, above, n 14 at 197.

26 Ibid. This is different in France also where the authorities may be asked to observe the law al-
though no one's rights are specifically infringed. See Crossland HG: Rights of the Individual to
Challenge Administrative Action before Administrative Courts in France and Germany, 24
Int'I&Comp L Q707, 730 (1975).
27 See Veerappa v Raman, AIR 1952 SC 192 and CA Abraham v ITO, AIR 1961 SC 609.
28 See State of UPv Md Nooh, AIR 1958 SC 86.
29 Pendency of a matter in a constitutional court does not affect the institution of a suit in an ad-
ministrative court; see decision of 5 Feb 1976, 50 BVerwGE 124, 129.
30 This provision has been made permanent in the draft Law on Procedure in Administrative
Courts, s 113.
31 Ule CH: 25 Jahre Bundesverwaltungsgericht, [1978] DVBI 553 at 561.
32 Decision of 28 June 1978 - Fall Konig - [1978] EuGRZ, 406.
33 PapierH-J: Die Stellung der Verwaltungsgerichtsbarkeit im demokratischen Rechtsstaat, 9ff
(1979); Sendler H: Zum Instanzenzug in der Verwaltungsgerichtsbarkeit, [1982] DVB1157.
34 No specific figures with respect to administrative matters are available, but other matters on an
average take more than ten years till the high court stage and if the matter also goes to the Su-
preme Court another five years or more may be added. For some rough figures see Lodha GM,
Wanted Evolution or Revolution in Judiciary?, AIR 1982 (J) 17 ff. Also Dhavan R: The Supreme
Court under Strain: The Challenge ofArrears (1978).
35 Art 104 (1). This right is considered to be as good as a fundamental right.
36 Decision of90ct 1973,36 BVerfGE 85, 87.
37 Decision of25 Jan 1974,44 BVerwGE 307&of 4 Nov 1976, 51 BVerwGE 277.
38 Above, p 112.
39 For the position in England and India see Conway v Rimmer[1968] AC 910; Amar Chand Butail
v Union of India, AIR 1964 SC 1658; State of UP v Raj Narain, AIR 1975 SC 865; SPGupta and
Othersv Union of India and Others, AIR 1982 SC 149.
40 The five kinds of decisions are: judgments (Urteile), orders (Beschliisse), preliminary rulings
(Vorbescheide), court rulings (Gerichtsbescheide), and directions (Anordnungen or Verfiigungen).
The first four are given by the court or division while the last one are given by the presiding
judge. Generally speaking a judgment normally disposes of the disputes finally while an order is
given during the course of proceedings. A preliminary ruling is given on the admissibility of a
suit and a court ruling is given unanimously to decide whether an oral hearing is required. Di-
rections are generally given by the presiding judge during the course of oral proceedings.
41 See Appendix IV.
42 Under the Law for the Uniformity of Judicial Decisions of 1968 a revision can be filed if the
challenged judgment differs from a judgment of any of the five federal courts.
43 VwGO, s 137. According to s 138 a federal law is always violated if either the court was not
properly constituted, or a judge who was excluded by law or was biased has participated, or a
legal hearing was denied to a party, or a party was not represented according to the provisions
of law or if the oral proceedings were not held in open, or the judgment is not furnished with
grounds or reasons. Further, it has been suggested that the limitation of s 137 does not prevent
the Federal Administrative Court from deciding cases arising under state laws so long as any
federal issue is involved. See Pakuscher EK: Administrative Law in Germany - Citizen v. State,
16 Am J Comp L 309,329 (1968-69).
44 VwGO, s 80.
45 Decisions of 2 Sept 1963, 16 BVerwGE 289 and of 29 Oct 1963, 17 BVerwGE 83.
46 Id, decision of 2 Sept 1963.
47 VwGO, s 153.
48 Id, s 167.
49 Id, s 172. It is instructive for the Indian lawyers and law-makers where some times even the
Supreme Court orders are not implemented for as many as twelve years. See Devaki Nandan
Prasadv State of Bihar, AIR 1983 SC 1134.
50 See Ule, above, n 31; Sendler, above, n 33, and the statement of reasons on the individual
clauses of the draft of the Law on Procedure in Administrative Courts (Verwaltungsprozessord-
nung) of 19 March 1982 at 61 (Now BR-Dr 148/83).
51 Entwurf einer Verwaltungsprozessordnung of 19 March 1982 ss 4 and 113 (Now BR-Dr 148/83).
Chapter 9
Liability of the Public Authorities

A. Scope and Background

Liability of the public authorities to compensate an individual for any loss or injury
caused to him may arise in several situations. It may arise for a breach of contract, a
tort, expropriation or quasi-expropriation of property, sacrifice by an individual in
the public interest (Aufopferung) or under any other special situation contemplated
in a legislation. The following discussion is, however, confined to the tortious liabil-
ity of the public authorities and other cases ofliability will be mentioned only so far
as they explain or supplement the tortious liability.
An outstanding feature of the tortious liability of the public authorities in Ger-
man law is its basis in the private law master and servant relationship. The state, in
this matter, is treated like any other corporation and just as the latter is liable for the
torts of its organs and agents the former is liable for the torts of its officials. Clearly
this has been the position since the end of the last century which is unambiguously
expressed in the German Civil Code and also in the Basic Law. This is very different
from the position in common-law countries where except to the extent it has been
abolished or narrowed down by legislations like the Crown Proceedings Act 1947 in
England or the Federal Tort Claims Act 1946 alongwith wome state judicial pro-
nouncements and legislations in the United States, the principle of sovereign immu-
nity reigns.!
As a corollary of the foregoing feature of the tortious liability of the public au-
thorities in Germany disputes relating to it are determined by the ordinary courts as
in common law and not by the administrative courts as in France. Like France a dis-
tinction is drawn between the public and private law torts in Germany also but the
remedy against them lies in the same courts and not in different courts. Perhaps due
to this amalgamation of jurisdiction in the same courts the public law tortious liabil-
ity of the state in Germany has not moved that far from the private law liability in
opening new grounds as its counterpart in France has done. Finally, with minor ex-
ceptions German law on tortious liability of the public authorities remains uncodifi-
ed and has to be deduced from judicial decisions and legal writings.
German law on state liability can be traced back to two different sources. One of
these sources is the same as in common-law countries, namely, the personal liability
of a civil servant for any torts committed by him during the performance of his du-
ties. The other, which does not find any mention in common law, is the liability of
the state or public authorities to compensate an individual for unequal burdens or
special sacrifice in the interest of the society (Aufopferung). Both these sources
found their statutory recognition in the Prussian Code of Common Law of 1794.
Sect.89 of Title 11 Chapter 10 of that Law made every official personally liable
140 Liability of the Public Authorities

for every wilful or negligent breach of duty irrespective of whether such breach
amounted to a general tort or not. To protect the officials against frequent actions in
the discharge of their duties the legislatures often made a suit against an official de-
pendent on the approval of the authority with whom the official was employed. But
no general law like article 75 of the French Constitution of 1800, which made an ac-
tion against an official dependent on the approval of a central authority (Conseii
d'Etat), was ever made in Germany.2 The existing law was finally codified in
Sect. 839 of the German Civil Code and made applicable to the whole of the Ger-
man territory from the first day of this century. The material part of Sect. 839 reads:
If an official wilfully or negligently commits a breach of duty incumbent
upon him towards a third party, he shall compensate the third party for any
damage....
While the Code was still in the process of compilation and adoption a dominent ju-
ristic opinion was growing in Germany that the state must take the responsibility for
the wrongs of its servants committed during the course of duty. Accordingly, just be-
fore and after the commencement of the Code some of the states undertook the re-
sponsibility for the wrongs of their servants through legislation.3 Thus instead of be-
coming immune from liability for the wrongs of its officials in the exercise of sover-
eign functions as is still recognized in India the German state took full responsibili-
ty for such wrongs. In 1919 this principle was laid down in article 131 of the Consti-
tution of the Weimar Republic which, with minor modifications, has now been in-
corporated in article 34 of the Basic law in the following words: 4
If any person, in the exercise of a public office entrusted to him, violates his offi-
cial obligations to a third party, liability shall rest in principle on the state or the
public body which employes him ....
To make sure that the officials do not misuse the immunity granted to them from the
personal liability article 34 like its predecessor article 131 of the Weimar Constitu-
tion also reserves a right to the state to recover damages from the concerned official
in case the breach of duty on his part is wilful or grossly negligent.
Neither article 131 of the Weimar Constitution nor article 34 of the Basic Law
touches upon the substantive law as laid down in Sect.839 of the German Civil
Code and developed by judicial and juristic interpretation. In mid-fifties the Ger-
man scholars started advocating for a uniform and consolidated law on the liability
of the public authorities for their sovereign or public law acts. Following the recom-
mendations of an independent commission appointed in 1970 the federal parlia-
ment enacted a general law applicable to the Federation as well as the Laender on
the liability of the public authorities for their wrongs. The enactment entitled as the
Law on State Liability was passed in 1981 and enforced from the first day of 1982.
But within a few months of its life on 19 October 1982 it was invalidited by the Fed-
eral Constitutional Court on the ground of incompetence of the Federal Parliament
to enact a law applicable to federal as well as Land authorities. 5 The decision of the
court restores the pre-1982 position under which the public law tortious liability of
the public authorities is governed by the provisions of Sect. 839 of the German Civil
Code and the private law liability is governed by that provision as well as some oth-
er provisions of the Code relating to the master and servant relationship.6
Section 839 of the Code, however, refers only to the liability based on fault. It
does not touch upon that aspect of liability which arises irrespective of fault from
Scope and Background 141

unequal burdens imposed on an individual in the interest of the community. Liabili-

ty for such burdens which developed side by side also had its source in the Code of
1794 as has already been indicated above. Section 74 of the introductory part of that
Code laid down a general proposition that in case of conflict between the rights of
an individual and the promotion of the public weal the former should give way to
the latter. Simultaneously Sect. 75 laid down that the state must compensate an indi-
vidual from whom it demands a special sacrifice of his rights and interests in the pu-
blic weal.
Although Sect. 74 and 75 spoke of the rights and interests in general to begin
with they were applied only to the expropriation of property, particularly of land.
The application of these provisions was further restricted by a cabinet order of
4 December 1831 according to which the obligation to pay compensation arose only
for infringements of the rights by the administrative action. No compensation could
be claimed for infringement by the legislation directly unless the legislation itself
provided for compensation. This situation was remedied by article 153 of the Wei-
mar Constitution which, with minor modifications, now finds its expression in arti-
cle 14 of the Basic Law. Article 14 guarantees a basic right to property and permits
its expropriation only in the public weal, by or pursuant to a law which provides for
the nature and extent of compensation. With this the obligation to pay compensa-
tion for the expropriation of property becomes absolute.
But there is no similar guarantee of compensation for other sacrifices (Aufopfe-
nmg) of an individual in the public interest. It was, however, recognized that an in-
dividual must be compensated for any unequal burdens lawfully imposed on him in
the interest of the general public. Disputed was whether compensation should also
be paid for unlawful impositions. Logically, ifthere is an obligation to pay compen-
sation for lawfully imposed special burdens on an individual there should always
be such an obligation when the burden is imposed unlawfully. Rather an unlawful
burden should always be considered as a special burden'? This was also the view of
the Empire Court in its decision of 11 April 1933.8 Any doubt in this respect was re-
moved by a larger division of the Federal Court of Justice in its famous judgment of
9 June 1952 in which it held that compensation must also be paid for illegal intru-
sion into the pecuniary rights of an individual which it designated as quasi-expro-
priation (enteignungsgleichen EingrifJ).9 With this decision a division has been creat-
ed between the intrusions in the pecuniary rights (vermogenswerte Rechte) and non-
pecuniary rights (nichtvermogenswerte Rechte). While intrusion in the former is
covered under the newly created concept the intrusion into the latter has been left to
the old notion of sacrifice (Aufopferung). But the legal position with respect to both
is the same and accordingly the liability to pay compensation arises as much for ille-
gal and culpable intrusions as for legal and non-culpable intrusions. The main im-
pact of the distinction between the two kinds of rights has been that the scope of ex-
propriation covered by article 14 has been widened and of sacrifice reduced to
rights relating to one's person, body or health.
Some scholars have disargreed with the invention of quasi-expropriation by the
Court and have argued that the traditional comprehensive concept of sacrifice (Auf-
opferung) could be~eloped into the risk liability of the state recognized in French
law.lO Soon after the 9 June 1952 decision on 16 October 1952 the Federal Court of
Justice also clarified that a claim of quasi-expropriation is complementary of a
142 Liability of the Public Authorities

claim of tortious liability of the state and the two claims may be joined together. I I To
that extent at least, quasi-expropriation becomes relevant to explaining the general
tortious liability of the state. Therefore, in the following discussion while we will not
go into the liability to pay compensation for expropriation protected under arti-
cle 14 of the Basic Law we may briefly mention the liability for quasi-expropriation
and for sacrifice which have the potentiality of developing into risk liability well-
recognized in French law.

B. General Tort Liability

1. Persons Exercising Public Office

Tortious liability of the state or public authorities arises for the wrongs of any per-
son exercising a public office irrespective of the fact whether such person is in the
employment or service of the state or a public authority. Of course Sect. 839 of the
German Civil Code speaks of 'an official' and so did article 131 of the Weimar Con-
stitution but the courts have always taken a very liberal approach on the matter and
have held the state liable even if the person who acted on behalf of it did not have
any formal appointment from the state. The shift to 'any person' who is entrusted
with a public office in article 34 of the Basic Law represents that liberal approach.
The courts have held that the state cannot escape its liability by handing over a pub-
lic duty or authority to a private person. Thus the city authorities, who were under
an obligation to provide safety measures on the roads, have been held liable for the
negligence of a private contractor who failed to install proper traffic signs on a road
under construction due to which the plaintiff met an accident and suffered inju-
ries. 12 Similarly the state has been held liable for a wilful wrong advice given by a
vehicles expert recognized by the state but working for a private body which certi-
fies the roadworthiness of the vehicles. The court said that maintenance of safety on
the roads is a responsibility of the state and therefore it must be held liable for the
wrongs of anyone to whom it entrusts that responsibility or duty even though that
person is not an employee of the state and charges a fee from a private body with
which he works. 13 Further, the court has held that a housing authority which per-
mits construction of a house on the expert advice of an engineer is liable if the en-
gineer gives wrong advice or apinion causing loss to the applicant even though the
engineer is not in any wayan employee of the authority.14

2. Breach of Duty

For the purpose of tortious liability of the state or public authorities duty has re-
ceived a very liberal interpretation and is determined on the basis of the legal princi-
ples relating to that duty including the judicial interpretation, precedents, official
orders, and contract of service. The law also requires that the officials observe the
principles of good morals, principle of reasonableness or proportionality (Verhiilt-
Breach of Duty 143

nismiij3igkeit) and the official secrecy.15 Further a citizen's just expectations should
not be belied. Thus the Federal Court of Justice has held that it is a breach of duty
on the part of the Federal Government if without any warning or investigation it
asks its officials to treat the plaintiff, officially recognized expert adviser on foreign
trade matters, as persona non-grata. This was also a case of absence of good faith
because the government's decision was taken on grounds of political leanings of the
plaintiff. 16 Similarly, it has held that the police is under an obligation to keep its in-
vestigation confidential and if anyone is injured due to their disclosure the state
must be liable for damagesY
Public authorities are also under an obligation to observe the normal care which
an individual is obliged to observe towards others. They are under an obligation to
observe all the traffic rules and avoid accidents or injuries to other persons in the
course of duty. The Federal Postal Department was held liable for injuries caused
by its driver during the course of his duty even though he was driving a hired bus
which was also being used as a passanger transport. 18 Similarly, the state was held
liable for injuries caused by the car of its officer in an accident during the course of
his duty.19 Following are some of the broad categories and examples of breach of
duty.

(a) Wrong Information: The observance of duty requires an orderly action on the
part of the authorities. Thus an official information or advice must be rightly and
timely given. A plaintiff could recover damages against the city authorities for the
equipment, etc., which he had purchased for opening a games parlour on the wrong
advice of one of its officials who later refused permission to open the parlour. The
court held that it was a clear violation of duty more so when the officer knew that
the plaintiff was going to act on his advice immediately.20 In another case the plain-
tiff who had started construction on the basis of the permission given by the county
council succeeded in recovering damages on subsequent withdrawal of permission
on the ground that the regional government did not approve the construction.21

(b) Non-action and Delay: There is no clear case establishing the liability of the pub-
lic authorities for non-action but the German scholars assert that a breach of duty
arises as much from non-action as from a wrongful action. 22 If the authorities do
not provide the benefits or facilities which they are under an obligation to provide
under the law, they must be held liable for the injuries caused due to such non-per-
formance. Perhaps the cases of non-exercise of discretion cited below may also be
taken as examples of non-performance. Clear instances are, however, available
where the public authorities have been held liable for delay in taking an urgent deci-
sion. Thus a plaintiff could recover damages from the Federal Government for un-
reasonable delay in disposing of his application of naturalization inspite of the fact
that the authorities knew that an urgent decision was necessary in the interest of the
applicant. 23 In another case the plaintiff could successfully claim damages against
the state authorities for an unreasonable delay of about one year in granting him a
driving licence although he fulfilled all the qualifications and reminded the authori-
ties that the delay in the grant of licence was causing loss to his business. The court
held that the authorities are liable for damages if they do not dispose of an applica-
tion within a reasonable time. 24
144 Liability of the Public Authorities

(c) Discretionary Duties: Abuse or illegal exercise of discretion makes the public
authorities liable for any injuries caused to an individual. The German law makes
no general exception in favour of the discretionary decisions as is the case in the
United States25 nor does it require a stricter standard as the English law does 26 so
long as the discretion has been illegally exercised. But mere unsuitability (Un-
zweckmiij3igkeit) of the decision is not enough. There must be a clear case of misuse
amounting to its illegality.27 A plaintiff, whose house was burgled by a known gang
ofburglers about whose movement the police was aware but decided not to take ac-
tion in its discretion, succeeded in recovering damages from the state. 28 In another
case a plaintiff succeeded in getting damages for his illegal arrest and detention in a
concentration camp on the allegation of being anti-social without any proof thereof.
The fact that the matter lay within non-judicial discretion of the police could not ab-
solve the state from its liability to pay damages to the plaintiff. 29 In yet another case
the city authorities who allowed a person to open an inn in the house adjacent to the
house of the plaintiff were held liable for the disturbance caused to the plaintiff be-
cause they failed to impose such restrictions on the innkeeper as they could impose
in their discretion in the interest of the neighbours. 3o
These cases clearly establish that the liability arises not only for illegal exercise
of discretion but also for its illegal non-exercise.

3. Duty Towards Third Party

Section 839 of the German Civil Code as well as article 34 of the Basic Law speak of
duty towards third party. They do not speak of the violation of the rights of an indi-
vidual and, therefore, for a breach of duty it is not necessary that an absolute right
or legally protected interest should be violated. Whether a person is a third party or
not for the purposes of a duty imposed upon an authority depends on whether the
object of the duty is to directly safeguard the interests of that person. 'Whether the
power of an authority to act also implies a corresponding duty towards a private
person depends on whether the power is given to the authority exclusively in the in-
terests of the general public or also in the interests of a specific person. If for in-
stance a policeman remains inactive while a theft is being committed, he is in breach
of his official duty towards the owner, because his power to interfere is conferred on
him not merely in the interests of the general public, but at the same time in the in-
terest of each single individual'.31
In each case it has to be seen whether according to the object and the legal pro-
visions of the official business the affected interests should have been protected. In
the Air Transport Case 32 the air transport controllers, who were the employees of the
Federal Government responsible for the safety of air transport, resorted to 'go slow'
and 'go sick' to press their demands against the Government for better service con-
ditions which resulted in a fall in the air transport and also in the complete closure
of one of the airports for two days. The plaintiff who was running a travel agency
suffered loss in business due to the sudden closure of the airport as well as by the
fall in air transport in general. He filed a suit for damages against the Federal Gov-
ernment. The Government alleged that the defendants owed no duty towards the
plaintiff and therefore he could not claim any damages as a consequence of the
Exercise of Public Office 145

strike by the air transport controllers. Rejecting the argument of the Government
the Federal Court of Justice held that in view of the law relating to civil aviation and
the terms and conditions of the duty of the controllers the controllers were under an
obligation to assure safe and punctual movement of the air transport. The plaintiff
was working under that trust and expectation. Any breach of that trust and expecta-
tions is a breach of duty towards him and therefore he was entitled to damages. 33
Relying on the same principle the court allowed damages to the plaintiff in two
bank cases.34 In one of these cases the Federal Supervisory Board failed to supply
information to the plaintiff about the soundness of a new banking enterprise before
he invested his money in shares. In another case the Board did not properly check
the activities of a bank which resulted in its failure and loss to the creditors. In both
the cases the Federal Government as defendant pleaded that although the Board
was created for the purpose of keeping a check and supervision on the activities of
the banks and banking business, this was a duty towards the community in general
and not towards the plaintiffs as creditors, shareholders or depositors. Rejecting
this argument the court held that the purpose of the duty imposed on the Board was
that those who rely upon a bank or deal with it are not cheated and made to suffer.
The Board therefore owed a duty towards the plaintiffs.
Thus the courts have been very liberal in reading a duty towards a third party.

4. Exercise of Public Office

Article 34 expressly mentions that the state is liable only if the breach of duty is
committed in the exercise of public office. Therefore, state is not liable for any inju-
ry caused by an official while he is not performing any public duty entrusted to him.
For example, the state is liable for any injury in a motor accident caused by a civil
servant while using such-vehicle for official purposes but not when for his private
purpose. But if the accident occurs during the course of duty it is immaterial wheth-
er the vehicle is private or official. Thus the state was held liable for damage from
an accident caused by a doctor on duty even though he was using his personal car.35
But simply because the injury is caused during duty hours does not make an injury
during the course of duty or in the exercise of public office. It is necessary that the
injury is caused by an official in his capacity as such. Thus a night watchman who
kills a person on a number of personal considerations cannot be said to be exercis-
ing public authority although the killing was done during the duty hours. 36 In an-
other case the defendant who was a technical caretaker of a parking place belong-
ing to a military regiment had heated arguments while on duty with a colleague. The
husband of the plaintiff who was also attached with the regiment as a medical doc-
tor sided with the colleague with whom the defendant had heated argument. In his
anger as well as under the influence of alcohol the defendant shot dead the other
colleague as well as the husband of the plaintiff. The defendant in a suit for dam-
ages against him personally failed to establish that he was acting in his official ca-
pacity in order to make the state liable. The court held that an external ;:tppearance
of the exercise of public authority is not enough. There must be an internal connec-
tion also. 37
Recently in the Air Transport Case mentioned above the court seems to have tak-
146 Liability of the Public Authorities

en a liberalized approach on the exercise of public office. In that case the court held
that the controllers were exercising public authority in striking and thereby causing
loss of business to the plaintiff. The court also considered the fact that in such cases
it makes the plaintiff easier to recover damages from the state or specific public au-
thority than from a large or indefinite number of officials. That, according to the
court, was the intent of article 34 and the state under that article is always competent
to recover damages from its servants.38 The court enunciated the legal position in
the following words. 39
Whether a particular behaviour of a person has to be seen as an exercise of pub-
lic office, depends on whether the specific purpose for which the person was en-
gaged is to be counted a sovereign activity and in case it is so whether between
the purpose and the act causing injury a so close an external and internal con-
nection exists that the activity has to be seen equally belonging to the area of
sovereign activity.
Thus, though the German law does not recognize any clear principle of cumul rec-
ognized in the French law40 and is quite close to the common law in this respect, the
courts have given up a very conservative approach to the interpretation of the exer-
cise of public authority and would like to enable the individual to recover damages
from the state.

5. Fault and Strict Liability

Fault - wilful or negligent breach of duty - is the basis of the tortious liability of the
state under Sect. 839 of the German Civil Code. Some scholars have strongly argued
for the liability of the state without fault for the injuries caused to an individual due
to the risks created by the modem state in the general interest. 41 Also some statutes
have specifically recognized such liability in the specified area. 42 But no general
principle of strict liability of the state has been recognized and the courts have re-
fused to apply any such principle. Thus the court refused to award damages to a
plaintiff who met an accident due to the failure of traffic lights. The court said that
the German system of law is based on the principle of fault and the court could not
create a strict liability.43 Following the same decision the court declined to give any
relief to a plaintiff whose business premises were flooded due to a breach in the
main water pipeline maintained by the defendant city. The court accepted the con-
tention of the defendant that the pipeline was neither defectively laid nor improper-
ly maintained and the cause of breach was a defect in the material of the pipe for
which the defendant could not be held liable. 44
However, the liability of the state for the sacrifice by an individual in the public
interest (Aufopfenmg), to be discussed below, has all the potentiality of developing
into a risk liability without fault recognized in the French law.

6. Liability for Legislative Changes

The question of the liability of the state for injuries caused to an individual by legis-
lative action of the state is still open. In a decision given on 29 March 1971 the Fed-
Limits of Liability 147

eral Court of Justice left the matter open by saying that the action or inaction of the
legislature refers to the generality and not to any particular person or persons and
therefore only exceptionally in cases such as the so-called legislative measures or
one man legislation through which the interests of a definite individual could be di-
rectly affected an individual could be said a third party within the meaning of
Sect. 839 of the German Civil Code. 45 But this is the position only with respect to the
formal laws, i. e., the laws made by the Federal Parliament or the state legislatures.
So far as the subordinate legislation or the ordinances made by the executive and
the byelaws of the autonomous bodies are concerned it is recognized that the state is
liable for the injury caused to an individual by such legislation. 46 A close instance of
that can be seen in the decision of the Federal Court of Justice of 10 July 1980. In
that case the plaintiff had started the business of converting the old vehicles into the
usable shape for publicity purposes. While he was making good profits from his bu-
siriess the Federal Transport Minister issued an ordinance prohibiting the business
of the plaintiff on grounds of road safety. The plaintiff filed a successful complaint
against the validity of the ordinance under article 12 (1) of the Basic Law and asked
for compensation for the loss of his business for the period it was closed in compli-
ance with the ordinance. His claim was rejected by the courts below but the Federal
Court of Justice referred it back to consider it as a case of quasi-expropriation.47
Lack of clear instances of the state having been held liable for the injuries
caused by legislative changes, which can be easily seen in French law, may be attrib-
uted to the fact that like the Indian and American law German law recognizes full
judicial review of legislative acts on the ground of constitutionality. Thus alliegisla-
tions causing injury to a single individual or a definite group of individuals can al-
ways be tested under the basic right of equality and also on other grounds as is illus-
trated from the abovementioned case on the validity of an ordinance under arti-
cle 12 (1) of the Basic Law. For this reason there is practically very little scope for
the evolution of state liability for legislative acts in Germany as is also the case in
the common-law countries like the United States and India which recognize the ju-
dicial review of legislation.48

7. Limits of Liability

Apart from any limits on the liability of the state that may be imposed under any
special law, Sect. 839 of the Code provides three limitations. First, an official or state
on his behalf cannot be held liable for negligent acts if the injured party can obtain
compensation in another manner such as under a contract or law or social insur-
ance. Second, the state is not liable for any breach of duty committed by an official
in the discharge of judicial functions unless the breach of duty is punished with a
public penalty to be enforced by criminal proceedings. But this protection is avail-
able only to the judges in the restricted sense of article 97 of the Basic Law and does
not apply to the administrative authorities exercising any judicial functions. Last,
the duty to give compensation does not arise if the injured party has wilfully or neg-
ligently omitted to avert the injury by availing a legal remedy. Thus a person cannot
first connive in the injury and then claim damages.
148 Liability of the Public Authorities

C. Liability for Quasi-Expropriation and Sacrifice

1. Liability for Quasi-Expropriation (enteignungsgleicher EingrifJ)

We have already noted that expropriation of property is protected by article 14 of

the Basic Law and the state is always under an obligation to pay compensation for
such expropriation. We will not go further into its details. We may, however, briefly
mention the liability for quasi-expropriation established by the Federal Court of
Justice in its famous judgment of 9 June 1952.49 That judgment involved three dif-
ferent cases. In one the defendant requisitioned the house of the plaintiff and ille-
gally allotted to a family which never occupied that house. The house remained va-
cant and the plaintiff asked for the loss of rent. In another case the house of the
plaintiff was illegally allotted to a person who did not pay part of the rent to the
plaintiff and the plaintiff asked the defendant, allotting authority, to pay. In the
third case the plaintiff was a practising dentist in one town and for lack of accom-
modation living in another town. The defendant allotted to him a family house at
the place of practice, but before the plaintiff could occupy the house he was arrest-
ed for condemning the military rule and the defendant without informing him or his
family allotted that house to some other persQn without any legal basis. On release
the plaintiff again had to continue with the previous arrangement of staying at two
places for which he claimed damages.
The Court found that in all these cases the plaintiffs were unlawfully deprived
of their property or pecuniary right which would have amounted to expropriation
under article 14 had it been done lawfully. It held that an unlawful intrusion into the
rights of an individual by the state or public authorities is to be treated as expropria-
tion if in view of its contents and effect it would have amounted to an expropriation
were it lawful and which in effect amounts to special sacrifice (Aufopferung) of the
affected person. Thus the liability of the state to pay compensation for unlawful in-
trusion into the pecuniary rights of an individual irrespective of the fault of the ad-
ministrative authorities was established whenever such intrusion amounted to an
unequal burden on an individual in the public interest.
Soon after in its decision of 16 October 1952 the Court clarified that the liability
to pay compensation in such cases arises as much for culpable intrusion as for non-
culpable 50 and to that extent the tortious liability of the state would overlap with the
liability for quasi-expropriation and the two claims may be joined in one SUit. 51
A few years later the Court shifted its emphasis from illegality to special sacri-
fice by an individual. In a case decided on 25 April 1960 the plaintiff was carrying
on the business of selling clothes by putting up his stall in different cities under a
valid permission to that effect. On a particular business day the defendant city au-
thorities asked the plaintiff to close down and remove his stall because he did not
have a special permission from the Land government. Later it was held that the
plaintiff did not require any such special permission. He claimed damages for the
loss of business caused by the action of the defendants. Upholding the claim of the
plaintiff the Court held that quasi-expropriation occurs when the intrusion seen in
its totality and effect, irrespective of its legality or illegality, is in the nature of ex-
propriation. 52 It further held that with the declaration of illegality of an intrusion a
Liability for Sacrifice (Aufopferung) 149

case of quasi-expropriation is immediately made out and it is established that the

sacrifice by the individual crosses the legal limits for which he should be compen-
sated under the requirement of the principle of equality. 53
Simple non-action on the part of a public authority, however, does not amount
to quasi-expropriation. Thus a plaintiff whose house was requisitioned for the offi-
cial purposes of the British authorities within their zone failed to get damages on the
ground that why other houses in the area were also not requisitioned in turn. The
court held that mere non-observance of a public duty was not enough to create a
claim of quasi-expropriation. 54
Some recent decisions of the courts have created serious doubts about the exis-
tence of quasi-expropriation as a ground for state liability. Upholding the validity of
some provisions of the Water Resources Law of 1976 the Federal Constitutional
Court in its famous decision of 15 July 1981 has held that no liability to pay com-
pensation arises for denial of gravel work on one's land in order to protect under-
ground water resources. 55 The Federal Court of Justice has further held that even if
such permission is illegally denied the remedy lies in getting the administrative act
of denial invalidated in an administrative court and not in compensation. 56 In view
of subsequent invalidation of the Law on State Liability57 one will have to wait to
assess the impact of these decisions on the law of state liability and its development
in the twin area of quasi-expropriation and sacrifice. 58

2. Liability for Sacrifice (Aufopferung)

We have noted that now for nearly two centuries the German law has recognized
that the state is liable to compensate an individual for any special burdens imposed
on him in the interest of the community. With the creation of the basic right to prop-
erty and its expansion to cover quasi-expropriation the original liability for such
burdens has now been confined to non-pecuniary rights. A claim of special burdens
or sacrifice now arises when through a sovereign act the non-pecuniary rights or le-
gal goods such as life, health, physical intactness or personal freedom is interfered
and a special burden is imposed on an individual in the interest of the general pub-
lic. The legality or illegality of the act as well as the fact whether it is with or without
fault is irrelevant. The liability of the state in such cases, like in France, is based on
the notion of equality represented in Sect.75 of the Law of 1794, i. e., if it is neces-
sary that the rights of an individual must be sacrificed in the interest of the general
public the general public must compensate the victim out of its general funds. The
German Federal Court of Justice has also supported this principle under the notion
of the social welfare state (Sozialstaat) based on the rule of law (Rechtsstaat)
evolved from article 20 (1) of the Basic LaW. 59 The application of the principle can
be illustrated from the following cases.
In one of the most important decisions given on 19 February 1953 the court al-
lowed damages to a lady who as an effect of smallpox vaccination in her childhood
suffered permanent physical disabilities. 6o Disapproving an earlier decision of the
Empire Court (Reichsgericht) on the same point61 the court relied on Sect. 75 of the
Code of 1794 and on the customary law to hold that in view of the present day rela-
tionship between the citizen and the state and the constitutionally guaranteed pro-
150 Liability of the Public Authorities

tection of the important life-goods (life, health, freedom, and property) the injury
which is caused to an individual through intrusions in the public interest should be
borne by the general public and not the individual alone. The court further empha-
sized that if on grounds of equality a citizen is compensated for expropriation of his
property why should he be not compensated for injuries to his life or health.
In another case the plaintiff who was suffering from syphilis had to undergo an
operation as required by law. As a consequence of the operation her legs were para-
lysed. On her suit for damages the court following the Smallpox Case held that in a
social welfare state based on the rule of law (Soziai Rechtsstaat) unusually hard sac-
rifices which an individual has to make in the interest of the community must be
equalized by the state by spreading them upon the general public in the form of
compensation to the individual.62 The consent of the plaintiff to the operation did
not make any difference because she was required by law to undergo such an opera-
tion. Similarly, a mental patient brought into a state mental house by the state au-
thorities succeeded in claiming damages for the injuries caused to him by a copa-
tient during his detention in the house.63
In all these cases there was a legal compulsion on the plaintiffs by law. In the Tu-
berculosis Case decided on 23 November 1959 the court held that even legal com-
pUlsion is not necessary and a psychological persuation on the part of the state or its
officials to take a health measure in the public interest is enough. In this case the
plaintiff took an anti-tuberculosis injection recommended by the state as a result of
which her legs were paralysed. Upholding her claim for compensation the court
held that a social welfare state does not always issue commands or prohibitions; it
also works as an adviser for the welfare of the people. If in following such an advice
an individual suffers any injury in the interest of the generality he must be compen-
sated.64
A claim for compensation for special sacrifice is however, admissible only if an
individual is made to suffer special damages which all others equally situated are
not required to suffer. If he suffers a damage in sharing a general risk he cannot rely
on a claim for sacrifice (Aufopferung). Thus a student failed to recover damages for
the injuries suffered by him in an accident during the gymnastic exercises in the
school which occured inspite of all care on the part of the school authorities. 65 Simi-
larly in a case in which a former soldier succeeded in claiming damages for the mis-
handling by the doctors of his injuries suffered during war the court clarified that
the defence services people have no general claim for damages on the ground of
special sacrifice for the injuries or death during the course of their duties because
the law requires all able-bodied persons to serve the society.68 In the same case the
court also clarified that even in those cases where claims for sacrifice are allowed
the compensation is paid only for injuries that can be counted in terms of money
and not for non-pecuniary injuries such as psychological pains.
Although the claims for compensation for sacrifice have acquired a constitu-
tional status through the pronouncements of the courts and require the legislature
also to honour them, there is nothing that prevents the legislature from making spe-
ciallegislative arrangements for the recovery of damages for such sacrifices under
specific laws or through a system of social insurance. So long as the society equal-
izes the special burdens imposed on an individual in its interest its implementation
can be left to the legislative judgment.
References 151

D. Remedy of Nullifying the Consequences

Along with the known remedy of compensation or damages, German law has also
developed the remedy of nullifying the consequences (Folgenbeseitigungsanspruch)
of a breach of duty on the part of the administrative authorities. The latter remedy is
of recent origin. In a case just after the World War II a house was attached by the
administrative authorities and allotted to a tenant. On the suit of the owner the at-
tachment was set aside but the tenant continued to occupy the house. 69 Otto Bachof
argued that on the invalidation of the attachment the owner was entitled to get the
vacant house to nullify the consequences of illegal attachment.1 In a decision of
25 August 1971 the Federal Administrative Court has held that the remedy of nulli-
fying the consequences has its basis in the Basic Law which can be found in the
right to freedom or in the requirement oflegal basis for any act and can be availed
not only against the executed administrative acts but also against simple adminis-
trative activities.1 1 It can be a basis for asking the withdrawal of a defamatory state-
ment in the public law area,72 or protection against emission from the public enter-
prises. 73 It may also be availed to set aside the continuing consequences of an illegal
act. A higher administrative court has held that if on the suit of a neighbour permis-
sion to construct given by the authorities is held illegal, the neighbour also has the
claim to the demolition of the already completed construction.14 The remedy of nul-
lifying the consequences has, however, not yet been extended to a positive restora-
tion of the original position, i. e., if a building is illegally demolished there is no
claim to get it constructed.

References

1 In India the courts still draw a distinction between sovereign and non-sovereign acts of the state
and make it immune from liability for the former. See Kasturi Lal Ralia Ram Jain v State of UP.
AIR 1965 Sc 1039.
2 See Bernard Schwartz: French Administrative Law and the Common Law World. 257 (1954).
3 See s 12 of the Grundbuchordnung of 24.3.1897, Preussian Law of Liability of the Officials of
1.8.1909 and the Law on Liability of the Officials of the Empire of22.5. 1910.
4 Article 131 of the Weimar Constitution used the word 'official' in place of person and 'authority'
in place of 'public office'. The change in article 34 represents the interpretation of article 131
and therefore it is not a departure from it. See also article 300 of the Constitution of India which
recognizes the liability of the state.
5 [1983] NJW, 25.
6 See particularly s31 of the Civil Code which makes the associations liable for the acts of their
organs, s89 which extends this liability to public bodies, and s831 which makes the employer
liable for the acts of anyone whom he employs to carry out any work or function.
7 Wolff HJ, BachofO: Verwaltungsrecht 1.528 (9th ed, 1974).
8 Decision of 11 April 1933, 140 RGZ 276.
96BGHZ270.
10 Wolff, Bachof, above, n7 at 528-29.
11 Decision of 16 Oct 1952, 7 BGHZ 296.
12 Decision of 29 Nov 1973, 25 BerRsp 711 (BGH).
152 Liability of the Public Authorities

13 Decision of 30 Nov 1967,49 BGHZ 108.

14 Decision of 27 May 1%3, 39 BG HZ 358.
15 Wollf, Bachof, above, n 7 at 560.
16 Decision of 13 March 1967 [1967] DVBl657 (BGH).
17 Decision of 19 Jan 1961,34 BGHZ 184. However, in this case the plaintiff lost.
18 Decision of 23 Feb 1956,20 BGHZ 120.
19 Decision of 4June 1956,21 BGHZ 51.
20 Decision of 5 April 1965 [1965] NJW 1226 (BGH).
21 Decision of 25 Jan 1973,45 BGHZ 112.
22 Wollf, Bachof, above, n7 at 560 and Jaenicke G: Haftung des StaatesjUr rechtswidriges Verhal-
ten seiner Organein Mosler H (ed.): Haftung des StaatesjUr rechtswidriges Verhalten seiner Or-
gane, 85 (1967). Compare, English law where there is no liability for non-action: Wade HWR:
Administrative Law, 662 (5th ed. 1982).
23 Decision of 23 March 1959,30 BGHZ 19.
24 Decision of 29 Nov 1954, 15 BGHZ 305.
25 See the Federal Tort Claims Act 1946.
26 Wade, above, n 22 at 660.
27 Decision of21 Dec 1961, 14 VerwRspr 832 (BGH).
28 Decision of 30 April 1953, 5 VerwRspr 832 (BGH).
29 Decision of 23 March 1951,2 BGHZ 209.'
30 Decision of 23 Feb 1959 [1959] NJW 767.
31 BachofO: German Administrative Law with Special Reference to the latest Developments in
the System of Legal Protection, 2 Int'l& Comp LQ 368,380 (1953).
32 Decision of 16 July 1977,69 BGHZ 128.
33 Id, at 142.
34 Decisions of 15 Feb 1979 [1979] NJW 1354 (BGH), and of12 July 1979 [1979] NJW 1879 (BGH).
35 Decision of8 Dec 1958,29 BGHZ 38. Also decision of28 Oct 1982 [1983] NJW 1667 (BGH).
36 Decision of 23 Sept 1938, 159 RGZ 235, 238.
37 Decision of 26 Nov 1953, 11 BGHZ 181.
38 Above, n32.
39 Id, at 130-31. Also see decision of 16 April 1964, 42 BGHZ 176, 179.
40 Brown LN, Gamer JF: French Administrative Law, 101 ff (2d ed, 1973).
41 Forsthoff E: Lehrbuch des Verwaltungrecht I, 359ff (10th ed, 1973); Wolf, Bachof, above, n7 at
572. CfOssenbiihl E: Staatshaftungsrecht, 168 (2d ed, 1978).
42 See, for example, s 34 of the Atomic Law of 1976 and the Law on the Compensation for Damage
from Riots of 1971. Also see Opoku K: Delictual Liability in German Law, 21 Int'l& Comp L Q
230, 240ff (1972).
43 Decision of 15 Oct 1970, 54 BGHZ 332, 336.
44 Decision of 25 Jan 1971, 55 BGHZ 229, 232.
45 56 BGHZ 40, 46.
46 Jaenicke, above, n22 at 127; and Bender B: Staatshaftungsrecht, 264 (3d ed, 1981).
47 78 BGHZ 41. Also decision of3 Dec 1953, 11 BGHZ 192.
48 Compare Jaenicke, above, n 22 at 124 where he says that today liability for legislative acts is not
excluded on principle. Also Bachof, above, n31 at 381 where he says 'Compensation must be
paid for interferences of the State etc, with private rights even if authorized by law'.
49 6 BGHZ 270.
50 7 BGHZ 296.
51 Decision of 12 April 1954, 13 BGHZ 88.
52 32 BGHZ 208, 210-11.
53 Id, at 211.
54 Decision of22 Dec 1953, 12 BGHZ 52; also see decision of 29 March 1971, 56 BGHZ 57, 59.
55 58 BVerfGE 300; also decision of 10 March 1981, 56 BVerfGE 249 and of 3 June 1982 [1982]
NJW2488.
56 Decision of 3 June 1982 [1982] NJW 2489.
57 See above, n5.
58 For an indepth discussion and a plea that quasi-expropriation still holds an important place see
Ossenbiihl F: Abschied vom enteignungsgleichen Eingrifj?, [1983] NJW 1.
References 153

59 Decision of 29 Sept 1957, 25 BGHZ 238, 241. Also above, p5 and 7ff.
609 BGHZ 83.
61 Decision of 16 Nov 1937, 156 RGZ 305, 311.
62 Decision of 29 Sept 1957, 25 BGHZ 238,241.
63 Decision of 8 July 1971 [1971] NJW 1881 (BGH).
64 31 BGHZ 187.
65 Decision of16Jan 1967,46 BGHZ 327. The court held that a child basically has no claim ofspe-
cial sacrifice if he takes the general risk and is injured during the course of sport classes. In this
case a girl studend injured her arm during the sport hour for which she had to be hospitalized. It
was also found that she was underdeveloped. Also Wolf, Bachof, above, n7 at 539.
68 Decision of 13 Feb 1956,20 BGHZ 61, 64.
69 Riifner W: Das Recht der offentlich-rechtlichen Schadensersatz- und Entschiidigungsleistungen in
Erichsen H.-U and Martens W (eds): Allgemeines Verwaltungsrecht, 450 (4th ed, 1979).
70 BachofO: Die Verwaltungsgerichtliche Klage aUf Vomahme einer Amtshandlung, 98ff (1951).
71 [1971] DaV 857,858.
72 Decision of 19 Dec 1960, 34 BGHZ 99, 109.
73 Riifner, above, n69 at 451.
74 Decision of 23 March 1962 [1962] DVBI 418, 420 (OVG Liineburg) and of 24 Oct 1974 [1975]
DVBI 915, 917 (OVG Liineburg).
Table of Statutes

Statutes in Germany are promulgated afresh after every revision or significant amendment and
therefore it is quite possible that the year of a statute in the table differs from the year in the text.
The table normally refers to the year oflatest promulgation while the text normally refers to the year
when a case arose or a particular happening took place.

Administrative Procedure Act 1946 (U. S.) 23

Cabinet Order 1831 (Kabinettsordre vom 4. Dezember 1831) 141
Civil Procedure Code 1950 (Zivilprozeftordnung vom 12. Sept. 1950) 47
Commercial Code 1900 (Gewerbeordnung vom 26. Juli 1900. Now of 1. Jan. 1978) 92, 95
Crown Proceedings Act 1947 (U. K.) 139
Customs Law 1939 (Zollgesetz vom 20. Miirz 1939. Now of 18 May 1970) 21
Customs Tariff Law 1960 (ZolltariJgesetz vom 23. Dezember 1960) 21
Empire Tax Code 1919 (Reichsabgabenordnung vom 13. Dezember1919. Now Abgabenordnung vom
16. Miirz 1976) 97
Federal Building Law 1960 (Bundesbaugesetz (BBauG) vom 23. Juni 1960. Now of 18. Aug. 1976)
25,59,97
Federal Indemnification Law 1956 (Bundesgesetz zur Entschiidigung flir Opfer der nationalsoziali-
stischen Vetfolgung (Bundesentschiidigungsgesetz - BEG -) vom 29. Juni 1956) 26
Federal Law for Protection Against Emission 1974 (Gesetz zum Schutz vor schiidlichen Umwelt-
einwirkungen durch Luftverunreinigungen. Geriiusche. Erschiitterungen und iihnliche Vorgiinge
(Bundes-Immissionsschutzgesetz - BlmSchG) vom 15. Miirz 1974) 97
Federal Law on Aid to Students 1976 (Bundesgesetz iiber individuelle Forderung der Ausbildung
(Bundesausbildungsforderungsgesetz - BAfoG) vom 9. April 1976) 97
Federal Law on Civil Servants 1977 (Bundesbeamtengesetz vom 3. Januar 1977) 81
Federal Law on Medical Professon 1977 (Bundesiirzteordnung vom 14. Oktober1977) 93,97
Federal (War Victims') Pension Law 1967 (Gesetz iiber die Versorgung der Opfer des Krieges (Bun-
desversorgungsgesetz) vom 20. Januar 1967) 97
Federal Register Act 1935 (U.S.) 23
Federal Tort Claims Act 1946 (U.S.) 139,152
German Civil Code 1896 (Biirgerliches Gesetzbuch vom 18. August 1896) 50,139,140,142,144,147
German Law on Judges 1961 (Deutsches Richtergesetz vom 8. Sept. 1961. Now of 19 April 1972)
107, 108, 115
Housing Law 1953 (Erstes Wohnungsbaugesetz (WoBauG) vom 25. Aug. 1953 Zweites Wohnungs-
baugesetz (Wohnungsbau- und Familienheimgesetz II - WoBauG) vom 30. Juli 1980) 93
Income Tax Implementation Ordinance 1955 (Einkommensteuer-Durchjiihrungsverordnung vom
21. Dezember 1955) 26
Income Tax Law 1974 (Einkommensteuergesetz vom 5. Sept. 1974) 26
Land Registry Law 1897 (Grundbuchordnung vom 24. Miirz 1897) 151
Law Against Unfounded Non-Utilization of Import Licence (Gesetz gegen unbegriindete Nichtaus-
nutzung von Einfohrgenehmigungen vom 27. Dezember 1951) 84
Law for the Protection of Child Workers 1960 ( Gesetz zum Schutze der arbeitenden Jugend (Jugend-
arbeitsschutzgesetz) vom 9. August 1960) 87
Law for Reducing the Burden of the Administrative and Fiscal Courts 1978 ( Gesetz zur Entlastung
der Gerichte in der Verwaltungs- und Finanzgerichtsbarkeit vom 31. Miirz 1978) 125
Law for the Uniformity of Judicial Decision 1968 (Gesetz zur Wahrung der Einheitlichkeit der
Rechtsprechung der obersten Gerichtshofe des Bundes vom 19. Juni 1968) 138
Law of Administrative Procedure 1976 (Verwaltungsvetfahrensgesetz vom25. Mai1976) 2,3,32-34,
37-39,42-44,45,47,50,60,72,73,75, 79,83,85, 132, Appendix II
Law on Administrative Courts 1960 (Verwaltungsgerichtsordnung vom 21. Januar 1960) 11,24,28,
32,38,43,54,66,72,83,85,106, 110, 115, 122, 123, 127, Appendix III
Law on Administrative Enforcement 1953 (Verwaltungsvollstreckungsgesetz vom 27. April 1953) 17,
54,136
Law on Aliens 1965 (Ausliindergesetz vom 28. April 1965) 92
Table of Statutes 155

Law on Association 1964 (Gesetz zur Regelung des Offentlichen Vereinsrechts (Vereinsgesetz) vom
5. August 1964) 113
Law on Change of Name 1938 (Gesetz uber die Anderung von Familiennamen und Vomamen (Na-
mensiinderungsgesetz) vom 5. Januar 1938) 97
Law on Compensation for Damage from Riots 1971 (Gesetz uber die EntschiidigungjUr Opfer von
Gewalttaten vom 11. Mai 1971) 152
Law on Circulation of Publications Harmful to the Morals of Adolescents 1961 (Gesetz uber die
Verbreitungjugendgefiihrdender Schriften vom 29. Apri11961) 97
Law on Constitution of Courts 1975 (Gerichtsveifassungsgesetz vom 9. Mai 1975) 115
Law on the Federal Constitutional Court 1951 (Gesetz uber das Bundesveifassungsgericht vom
3. Februar 1971) 24,31
Law on Fiscal Courts of 1965 (Finanzgerichtsordnung vom 6. Oktober 1965) 111
Law on Liability of the Officials of the Empire 1910 (Gesetz uber die Haftung des Reichs jUr seine
Beamten (Reichsbeamtenhaftungsgesetz) vom 22. Mai 1910) 151
Law on the Peaceful Use of Nuclear Energy and Protection Against its Dangers 1976 (Gesetz uber
diefriedliche Anwendung der Kemenergie und den Schutz gegen ihre Gefahren (Atomgesetz) vom
31. Oktober 1976) 84,152
Law on Postal Administration 1953 (Gesetz uber die Verwaltung der Deutschen Bundespost (Postver-
waltungsgesetz) vom 24. Juli 1953) 21-22
Law on Promotion of City Building 1976 (Gesetz uber stiidtebauliche Sanierungs- und Entwicklungs-
majJnahmen in den Gemeinden (Stiidtebauforderungsgesetz - StBauFG) vom 18. August 1976)
25
Law on Shop Hours 1956 (Gesetz uber den Ladenschluss vom 28. November 1956) 22
Law on Social Courts 1975 (Sozialgerichtsgesetz vom 23. Sept. 1975) 111
Law on State Liability 1981 (Staatshaftungsgesetz vom 26. Juni 1981) 140,149
Law on Undertakings of Chemists 1968 (Apothekenbetriebsordnung vom 7.Aug. 1968) 97
Law on Water Resources 1976 (Gesetz zur Ordnung des Wasserhaushalts (Wasserhaushaltsgesetz-
WHG) vom 16. Oktober1976) 149
Law for the Regulation of Public Meetings 1941 (Gesetz zur Regelung der offentlichen Sammlungen
und sammlungsiihnlichen Veranstaltungen (Sammlungsgesetz) vom 5. Nov. 1941) 84
Prussian Code of Common Law 1794 (Aligemeines Landrecht jUr die preussischen Staaten von
1794) 9,139,141,149
Prussian Law of Liability of Officials 1909 (Beamtenhaftungsgesetz vom 1. August 1909) 151
Road Licensing Regulations 1974 (Strassenverkehrs-Zulassungsordnung vom 15. Nov. 1974) 26
Road Traffic Regulations 1970 (Strassenverkehrsordnung vom 13. Nov. 1970) 86
Road Transport/Traffic Code 1952 (Strassenverkehrsgesetz vom 19. Dezember 1952) 26, 86,90,92
Specific Relief Act 1963 (India) 137
Statutory Instruments Act 1946 (U.K.) 23
Supreme Court Act 1981 (U. K.) 137
Transport Finance Law 1955 (Verkehrsjinanzgesetz vom 6. April 1955) 22
Transport Tax Law 1955 (Befijrderungssteuergesetz vom 13. Juni 1955) 22
Tribunals and Enquiries Act 1971 (U. K.) 38
Table of Cases

Court decisions in Germany are reported without the name of the parties. They are cited by the date
on which they are announced alongwith the name of the deciding court and the page of the report
in which they are published. The present table, therefore, consists only of cases from the common-
law countries as well as such German decisions as have been given a name by the author.

Air Transport Case 144

Ajay Hasia v. Khalid Mujib 63
Allied Transport Co. v. State of M. P. 100
Amar Chand Butail v. Union of India 138
Association of Data Processing Service Organizations v. Camp 137
Baldev Raj v. Union of India 101
Buxton v. Minister of Housing and Local Govt. 63
C. A. Abraham v. I. T. O. 138
Chintaman Rao v. M. P. 99
Conway v. Rimmer 138
Customs Case 21
Delhi Municipalityv. B.C.S.&W.Mills 31
Devaki Nandan Prasad v. State of Bihar 138
Diva Karan v. Dy. Director, Fishries 137
Dwarka Prasad v. State ofU.P. 98
E.E. &C. Ltd. v. State ofW.B. 63,80
Equalization of Tax Liability Case 22
Fall Konig 138
Garrison Case 54
Goldberg v. Kelly 80
Jaisinghani v. Union of India 98
J. P. Kulshreshtha v. Allahabad University 100
In re the Delhi Laws Act 17
Indira Nehru Gandhi v. Raj Narain 17,116
J. M. Desai v. Roshan Kumar 137
Kasturi Lal Ralia Ram Jain v. State of U. P. 151
Kasturi Lal v. State of J. & K. 63
Kesavanand Bharati v. State of Kerala 116
Kruse v. Johnson 31
Laender-Reorganization Case 21
Madras v. V. G. Row 99
Maneka Gandhi v. Union of India 49,99
M. Chhaganlal v. Greater Bombay Municipality 80
Minerva Mills Ltd. v. Union ofIndia 116
National Textiles Worker's Union v. P. R. Ramakrishnan 137
Nawabkhan v. State of Gujrat 49
Omprakash v. Jammu & Kashmir 100
Peep-Show Case 78
Raghubir v. Court of Wards 98
R. v. G. L. C., expo Blackburn 137
Ramana v. I. A. Authority of India 30, 63
Ram Jawaya v. State of Punjab 79
Rajamallaiah v. Anil Kishore 30, 81
R. v. Liverpool Corporation, expo Liverpool Taxi Fleet Operators' Association 137
Rochester Tel. Corp. v. United States 101
Rooke's Case 83
St. Pauli-News Case 80
Satwant Singh Sawhney v. A. P.O., New Delhi 80
Table of Cases 157

Satwant Singh Sawhney v. A. P.O., New Delhi 80

Sharp v. Wakefield 98
Shri Ram Sugar Industries v. State of A. P. 99
S. L. Kapoor v. Jagmohan 49
Smallpox Case 150
Som Prakash v. Union of India 63
S. P.Gupta & Others v. Union of India and others 137,138
State of Maharashtra v. Prabhakar Pandurang 80
State of M. P. v. Baldev 98
State of Punjab v. Khan Chand 98
State of U. P. v. Md. Nooh 138
State of U. P. v. Raj Narain 138
State of West Bengal v. Anwar Ali 98
Sukhdev Singh v. Bhagat Ram 63
Swadeshi Cotton Mills v. Union of India 49
Tuberculosis Case 150
Tiibingen University Case 58
Ujjam Bai v. State of U. P. 49
Varadarajan v. Salem Municipality 137
Veerapa v. Raman 138
Vishundas Hundamal v. State of M. P. 100
Warangal Chamber of Commerce v. Director of Marketing 137
War Prisoners Case 21
Wheeler v. Montgomery 80
Wong Yang Sung v. McGrath 100
Yick Wo v. Hopkins 80
Appendix I
The Basic Law
(Grundgesetz)

Article 1 (Protection of human dignity)

(1) The dignity of man shall be inviolable. To respect and protect it shall be the duty
of all state authority.
(2) The German people therefore acknowledge inviolable and inalienable human
rights as the basis of every community, of peace and of justice in the world.
(3) The following basic rights shall bind the legislature, the executive and the judi-
ciary as directly enforceable law.

Article 2 (Rights of liberty)

(1) Everyone shall have the right to the free development of his personality in so far
as he does not violate the rights of others or offend against the constitutional order
or the moral code.
(2) Everyone shall have the right to life and to inviolability of his person. The liberty
of the individual shall be inviolable. These rights may only be encroached upon
pursuant to a law.

Article 3 (Equality before the law)

(1) All persons shall be equal before the law.
(2) Men and women shall have equal rights.
(3) No one may be prejudiced or favoured because of his sex, his parentage, his
race, his language, his homeland and origin, his faith, or his religious or political
opinions.

Article 6 (Marriage, Family, Illegitimate children)

(1) Marriage and family shall enjoy the special protection of the state.

Article 14 (Property, Right of inheritance, Expropriation)

(1) Property and the right of inheritance are guaranteed. Their content and limits
shall be determined by the laws.
(2) Property imposes duties. Its use should also serve the public weal.
(3) Expropriation shall be permitted only in the public weal. It may be effected only
by or pursuant to a law which shall provide for the nature and extent of the compen-
sation. Such compensation shall be determined by establishing an equitable balance
between the public interest and the interests of those affected. In case of dispute re-
garding the amount of compensation, recourse may be had to the ordinary courts.
The Basic Law 159

Article 19 (Restriction of basic rights)

(1) In so far as a basic right may, under this Basic Law, be restricted by or pursuant
to a law, such law must apply generally and not solely to an individual case. Fur-
thermore, such law must name the basic right, indicating the Article concerned.
(2) In no case may the essential content of a basic right be encroached upon.
(3) ...
(4) Should any person's right be violated by public authority, recourse to the court
shall be open to him. If jurisdiction is not specified, recourse shall be to the ordinary
courts ...

Article 20 (Basic principles of the Constitution - Right to resist)

(1) The Federal Republic of Germany is a democratic and social federal state.
(2) All state authority emanates from the people. It shall be exercised by the people
by means of elections and voting and by specific legislative, executive, and judicial
organs.
(3) Legislation shall be subject to the constitutional order; the executive and the ju-
diciary shall be bound by law and justice.
(4) All Germans shall have the right to resist any person or persons seeking to abol-
ish that constitutional order, should no other remedy be possible.

Article 28 (Federal guarantee of Laender constitutions)

(1) The constitutional order in the Laender must conform to the principles of repub-
lican, democratic and social government based on the rule of law, within the mean-
ing of this Basic Law. In each of the Laender, counties (Kreise), and communes
(Gemeinden), the people must be represented by a body chosen in general, direct,
free, equal, and secret elections. In the communes the assembly of the commune
may take the place of an elected body.
(2) The communes must be guaranteed the right to regulate on their own responsi-
bility all the affairs of the local community within the limits set by law. The associa-
tions of communes (Gemeindeverbande) shall also have the right of self-govern-
ment in accordance with the law and within the limits of the functions assigned to
them by law.
(3) The Federation shall ensure that the constitutional order of the Laender con-
forms to the basic rights and to the provisions of paragraphs (1) and (2) of this Arti-
cle.

Article 34 (Liability in the event of malfeasance)

If any person, in the exercise of a public office entrusted to him, violates his official
obligations to a third party, liability shall rest in principle on the state or the public
body which employs him. In the event of wilful intent or gross negligence the right
of recourse shall be reserved. In respect of the claim for compensation or the right
of recourse, the jurisdiction of the ordinary courts must not be excluded.
160 Appendix I. The Basic Law

Article 60 (Appointment of federal civil servants and officers)

(1) The Federal President shall appoint and dismiss the federal judges, unless other-
wise provided for by law.

Article 79 (Amendment of the Basic Law)

(1) This Basic Law can be amended only by laws which expressly amend or supple-
ment the text thereof ...
(2) ...
(3) Amendments of this Basic Law affecting the division of the Federation into
Laender, the participation on principle of the Laender in legislation, or the basic
principles laid down in Articles 1 and 20, shall be inadmissible.

Article 80 (Issue of ordinances having force of law)

(1) The Federal Government, a Federal Minister or the Land governments may be
authorized by a law to issue ordinances having the force of law (Rechtsverordnung-
en). The content, purpose, and scope of the authorization so conferred must be set
forth in such law. This legal basis must be stated in the ordinance. If a law provides
that such authorization may be delegated, such delegation shall require another or-
dinance having the force of law.
(2) The consent of the Bundesrat shall be required, unless otherwise provided by
federal legislation, for ordinances having the force of law issued by the Federal
Government or a Federal Minister concerning basic rules for the use of facilities of
the federal railroads and of postal and telecommunication services, or charges
therefor, or concerning the construction and operation of railroads, as well as for or-
dinances having the force of law issued pursuant to federal laws that require the
consent of the Bundesrat or that are executed by the Laender as agents of the Feder-
ation or as matters of their own concern.

Article 82 (Promulgation and effective date of laws)

(1) Laws enacted in accordance with the provisions of this Basic Law shall, after
countersignature, be signed by the Federal President and promulgated in the Feder-
al Law Gazette. Ordinances having the force of law shall be signed by the agency
which issues them, and, unless otherwise provided by law, shall be promulgated in
the Federal Law Gazette.
(2) Every law or every ordinance having the force of law should specify its effective
date. In the absence of such a provision, it shall become effective on the fourteenth
day after the end of the day on which the Federal Law Gazette containing it was
published.

Article 92 (Court organization)

Judicial power shall be vested in the judges; it shall be exercised by the Federal
Constitutional Court, by the federal courts provided for in this Basic Law, and by
the courts of the Laender.
The Basic Law 161

Article 93 (Federal Constitutional Court, competency)

(1) The Federal Constitutional Court shall decide:
1. on the interpretation of this Basic Law in the event of disputes concerning the ex-
tent of the rights and duties of a highest federal organ or of other parties con-
cerned who have been vested with rights of their own by this Basic Law or by
rules of procedure of a highest federal organ;
2. in case of differences of opinion or doubts on the formal and material compatibil-
ity of federal law or Land law with this Basic Law, or on the compatibility of
Land law with other federal law, at the request of the Federal Government, of a
Land government, or of one third of the Bundestag members;
3. in case of differences of opinion on the rights and duties of the Federation and
the Laender, particularly in the execution of federal law by the Laender and in
the exercise offederal supervision;
4. on other disputes involving public law, between the Federation and the Laender,
between different Laender or within a Land, unless recourse to another court
exists;
4 a. on complaints of unconstitutionality, which may be entered by any person who
claims that one of his basic rights or one of his rights under paragraph (4) of Arti-
cle 20, under Article 33, 38, 101, 103, or 104 has been violated by public authority;
4 b. on complaints of unconstitutionality, entered by communes or associations of
communes on the ground that their right to self-government under Article 28 has
been violated by a law other than a Land law open to complaint to the respective
Land constitutional court;
5. in the other cases provided for in this Basic Law.
(2) The Federal Constitutional Court shall also act in such other cases as are as-
signed to it by federal legislation.

Article 94 (Federal Constitutional Court, composition)

(1) The Federal Constitutional Court shall consist of federal judges and other mem-
bers. Half of the members of the Federal Constitutional Court shall be elected by
the Bundestag and half by the Bundesrat. They may not be members ofthe Bundes-
tag, the Bundesrat, the Federal Government, nor of any of the corresponding or-
gans of a Land.
(2) The constitution and procedure of the Federal Constitutional Court shall be reg-
ulated by a federal law which shall specify in what cases its decisions shall have the
force of law. Such law may require that all other legal remedies must have been ex-
hausted before any such complaint of unconstitutionality can be entered, and may
make provision for a special procedure as to admissibility.

Article 95 (Highest courts of justice of the Federation - Joint Panel)

(1) For the purpose of ordinary, administrative, fiscal, labour, and social jurisdic-
tion, the Federation shall establish as highest courts of justice the Federal Court of
Justice, the Federal Administrative Court, the Federal Fiscal Court, the Federal La-
bour Court, and the Federal Social Court.
(2) The judges of each of these courts shall be selected jointly by the competent Fed-
162 Appendix I. The Basic Law

eral Minister and a committee for the selection of judges consisting of the compe-
tent Land Ministers and an equal number of members elected by the Bundestag.
(3) In order to preserve uniformity of jurisdiction, a Joint Panel (Senat) of the courts
specified in paragraph (1) of this Article shall be set up. Details shall be regulated by
a federal law.

Article 96 (Federal courts)

(1) The Federation may establish a Federal Court for matters concerning industrial
property rights.
(2) The Federation may establish military criminal courts for the Armed Forces as
federal courts. They shall exercise criminal jurisdiction while a state of defence
exists, and otherwise only over members of the Armed Forces serving abroad or on
board warships. Details shall be regulated by a federal law. These courts shall be
within the competence of the Federal Minister of Justice. Their full-time judges
must be persons qualified to exercise the functions of a judge.
(3) The highest court of justice for appeals from the courts mentioned in paragraphs
(1) and (2) of this Article shall be the Federal Court of Justice.
(4) The Federation may establish federal courts for disciplinary proceedings
against, and for proceedings in pursuance of complaints by, persons in the federal
public service.
(5) In respect of criminal proceedings under paragraph (1) of Article 26 or involving
the protection of the State, a federal law requiring the consent of the Bundesrat may
provide that Land courts shall exercise federal jurisdiction.

Article 97 (Independence of the judges)

(1) The judges shall be independent and subject only to the law.
(2) Judges appointed permanently on a full-time basis in established positions can-
not against their will be dismissed or permanently or temporarily suspended from
office or given a different function or retired before the expiration of their term of
office except by virtue of a judicial decision and only on the grounds and in the
form provided for by law. Legislation may set age limits for the retirement of judges
appointed for life. In the event of changes in the structure of courts or in districts of
jurisdiction, judges may be transferred to another court or removed from office,
provided they retain their full salary.

Article 98 (Legal status of judges)

(1) The legal status of the federal judges shall be regulated by a special federal law.
(2) If a federal judge, in his official capacity or unofficially, infringes the principles
of this Basic Law or the constitutional order of a Land, the Federal Constitutional
Court may decide by a two-thirds majority, upon the request of the Bundestag, that
the judge be given a different function or retired. In a case of intentional infringe-
ment, his dismissal may be ordered.
(3) The legal status of the judges in the Laender shall be regulated by special Land
The Basic Law 163

laws. The Federation may enact general provisions, in so far as paragraph (4) of Ar-
ticle 74a does not provide otherwise.
(4) Laender may provide that the Land Minister of Justice together with a commit-
tee for the selection of judges shall decide on the appointment of judges in the
Laender.
(5) The Laender may, in respect of Land judges, enact provisions corresponding to
those of paragraph (2) of this Article. Existing Land constitutional law shall remain
unaffected. The decision in a case of impeachment of a judge shall rest with the
Federal Constitutional Court.

Article 99 (Assignment of competencies to Federal Constitutional Court and highest

federal courts in matters involving Land law)
The decision on constitutional disputes within a Land may be assigned by Land
legislation to the Federal Constitutional Court, and the decision of last instance in
matters involving the application of Land law, to the highest courts of justice
referred to in paragraph (1) of Article 95.

Article 100 (Compatibility of statutory law with Basic Law)

(1) If a court considers unconstitutional a law the validity of which is relevant to its
decision, the proceedings shall be stayed, and a decision shall be obtained from the
Land court competent for constitutional disputes if the constitution of a Land is
held to be violated, or from the Federal Constitutional Court if this Basic Law is
held to be violated. This shall also apply if this Basic Law is held to be violated by
Land law or if a Land law is held to be incompatible with a federal law.
(2) If, in the course of litigation, doubt exists whether a rule of public international
law is an integral part of federal law and whether such rule directly creates rights
and duties for the individual (Article 25), the Court shall obtain a decision from the
Federal Constitutional Court.
(3) If the constitutional court of a Land, in interpreting this Basic Law, intends to
deviate from a decision of the Federal Constitutional Court or of the constitutional
court of another Land, it must obtain a decision from the Federal Constitutional
Court.

Article 101 (Ban on extraordinary courts)

(1) Extraordinary courts shall be inadmissible. No one may be removed from the ju-
risdiction of his lawful judge.
(2) Courts for special fields may be established only by legislation.

Article 103 (Basic rights in the courts)

(1) In the courts everyone shall be entitled to a hearing in accordance with the law.
Appendix II
Law of Administrative Procedure 1976
(Verwaltungsverfahrensgesetz vom 25. Mai 1976)

Part I. Scope of Application, Territorial Competence, Administrative Aid

1. Scope of Application (1) To the extent a Federal law does not have similar or
contrary provisions, this Law applies to the public law administrative activities of
the administrative authorities -
1. of the Federal Government, of the Federal direct corporations [i. e., authorities
governed or supervised by the Federal Government], establishments and founda-
tions of public law.
2. of the Laender, of communes and associations of communes, of other juristic per-
sons under the supervision of the Laender when they are executing the Federal
laws as agents of the Federal Government.
(2) To the extent a Federal law does not have similar or contrary provisions, this
Law also applies to the public law administrative activities of the authorities men-
tioned in clause (1) No.2, if the Laender are executing as their own affairs the provi-
sions of a Federal law whose subject-matter pertains to the exclusive or concurrent
legislation of the Federation...
(3) To the extent the public law activities of the administrative authorities are regu-
lated by a Land law of administrative procedure, this Law does not apply to the ex-
ecution of Federal law by a Land.
(4) For the purposes of this Law an administrative authority is any body which per-
forms the functions of public administration.

Part II. General Provisions on Administrative Procedure

Chapter 1. Principles of Procedure

9. Concept of Administrative Procedure. Within the meaning of this Law adminis-

trative procedure is any activity of the administrative authorities with external ef-
fects directed at the examination of the conditions, the preparation and the taking
of an administrative act or at the conclusion of a public law contract; it includes the
taking of an administrative act or the conclusion of a public law contract.
Principles of Administrative Procedure 165

10. Informality of Administrative Procedure. To the extent no special law exists on

the form of procedure, the administrative procedure is not bound by any definite
form. It is to be carried out simply and suitably.

13. Participants. (1) Participants are -

1. applicant and respondent,
2. those to whom the authority wants to address or has addressed the administrative
act,
3. those with whom the authority wants to conclude or has concluded a public law
contract,
4. those who have been called in by the authority to the procedure under clause (2).
(2) The authority may either suo moto or on application call in as participants those
whose legal interests are likely to be affected by the result of the procedure. If the
result of the procedure has legally operative effect for a third person, then on appli-
cation he has to be called in as participant in the procedure; insofar as he is known
to the authority he has to be informed of the commencement of the procedure.
(3) Anyone who is to be heard is not entitled to be a participant unless the require-
ments of clause (1) are fulfilled.

20. Disqualified Persons. (1) No one is permitted to act for an authority in an ad-
ministrative procedure if he -
1. is a participant;
2. is a relative of a participant;
3. represents a participant in that procedure either by virtue of a law or under a gen-
eral or special authorization;
4. is the relative of a person who represents a participant in that procedure;
5. is engaged for consideration with a participant or is working with him as member
of a board of directors, a supervisory board or of a similar organ; this does not
apply to those whose employing body is a participant;
6. outside his official capacity has rendered an expert opinion or has otherwise been
engaged with the matter.
Anyone who by the act or decision may get a direct advantage or disadvantage is
deemed to be a participant. This is not applicable if the advantage or disadvantage
is based only on that someone belongs to a profession or a class of persons whose
common interests may be affected by the matter.
(2) Clause (1) does not apply to the selection to and recall from an honorary office.
(3) Whoever is disqualified under clause (1) may take urgent measures in the case of
imminent danger.
(4) If the member of a committee is doubtful whether he is disqualified under cl. (1),
he must inform the chairman of the committee. The committee decides about the
disqualification. The concerned member is not allowed to participate in this deci-
sion. The disqualified member is not allowed to be present in subsequent discus-
sions and decisions.
(5) Relatives within the meaning of clause (1) Nos. 2 and 4 are: ,
166 Appendix II. Law of Administrative Procedure

1. the fiancee,
2. the spouse,
3. relations by blood and relations by marriage in the direct line,
4. brothers and sisters,
5. children of brothers and sisters,
6. spouses of brothers and sisters and brothers and sisters of spouses,
7. brothers and sisters of parents,
8. persons, who through long association and care with communality of house are
connected as parents and children (foster parents and foster children).
The persons specified in sentence 1 are relatives even if -
1. in cases under Nos.2, 3 and 6 the marriage establishing the relationship has
ceased to exist;
2. in cases under Nos. 3 to 7 the relationship or affinity through adoption as a child
has ceased to exist;
3. in case of No.8 the communality of residence has ceased to exist so long as the
persons are connected as parents and children.

21. Apprehension of Partiality. (1) If there is a suitable ground to justify a mistrust

against an impartial exercise of power or if either of the participants alleges such a
ground, then the person who would have acted as an authority in an administrative
proceeding shall inform the head of that authority or his representative and with-
draw himself from acting till his orders. If the apprehension of partiality concerns
the head of the authority himself then the order shall be passed by the supervising
authority unless the head of the authority on his own motion abstains from acting.

22. Commencement of the Procedure. In its judicious discretion (PflichtgemiifJes Er-

messen) the administrative authority decides whether and when it takes up an ad-
ministrative procedure. This is not applicable if under the law the authority -
1. must act ex-officio or on an application;
2. is allowed to act only on an application and no such application has been made.

24. Inquisitorial Principle. (1) The authority investigates the facts ex-officio. It de-
termines the kind and scope of the investigation; it is not bound by the pleadings
and offer of evidence of the participants.
(2) The authority shall consider all the circumstances relevant to the individual case
including circumstances favourable to the participants.
(3) The authority shall not refuse to accept explanations or applications which fall
within its competence for the reasons that on merits it holds the declarations or the
application to be inadmissible or baseless.

25. Consultation and Information. The authority should encourage making of dec-
larations, placing of application or the correction of the declarations or of applica-
tions, if obviously they have been missed by mistake or ignorance or have been in-
correctly made or filed. So far as necessary, it informs the participants about their
rights and duties with respect to the administrative procedure.
Principles of Administrative Procedure 167

26. Evidence. (1) The authority avails the evidence which in its judicious discretion
it holds necessary for the investigation of facts. Particularly it may -
1. collect informations of any kind,
2. hear the participants, examine witnesses and experts or may take written state-
ments of the participants, experts and witnesses,
3. call for documents and files,
4. conduct inspection.
(2) The participants must cooperate in the investigation of the facts. Particularly,
they must produce the facts and evidence known to them. A further duty to cooper-
ate in the investigation of facts, particularly a duty of personal appearance or testi-
mony, exists only to the extent specially provided by law.
(3) If the law requires, the witnesses and experts are under a duty to give testimony
or opinion ...

27. Statement on Mfidavit. (1) In the investigation of facts an authority may re-
quire and record statements on affidavits only if a statute (Gesetz) or ordinance
(Rechtsverordnung) envisages the acceptance of such statements with respect to the
concerned subject-matter and in the concerned procedure and the authority has
been declared by law to be competent to do so. A statement on affidavit must be re-
quired only if the other means of investigating the truth are not available, do not
lead to any result, or involve unreasonable expenditure ...

28. Hearing of the Participants. (1) Before an administrative act which affects the
rights of a participant is taken, opportunity has to be given to such participant to ex-
press himself on all facts relevant to the decision.
(2) Hearing may be dispensed with if in the circumstances of an individual case it is
not required, particularly if -
1. an immediate decision appears necessary either due to imminent danger or in the
public interest;
2. through the hearing the observance of prescribed time limit in question for the
decision would be jeopardized;
3. no deviation from the factual statements of a participant which he has made in an
application or declaration is to be made to his disadvantage;
4. the authority wants to issue a general order or take similar administrative acts in
large number or with the help of automatic device;
5. measures must be effected through an administrative execution.
(3) Hearing is excluded if it conflicts with a compelling public interest.

29. Inspection of Files by the Participants. (1) The authority shall allow the partici-
pants to insepct the files relating to the proceedings to the extent their knowledge is
necessary for the assertion or defence of their legal interests. This sentence holds
good until the closure of the administrative procedure but not for the drafts of the
decision or the work directly related to its preparation ...
168 Appendix II. Law of Administrative Procedure

30. Confidentiality. The participants have the right that their secrets, particularly
the secrets falling within the sphere of personal life as well as the secrets of profes-
sion and trade are not disclosed without legal authority.

Part III. Administrative Act

Chapter 1. Formation of an Administrative Act

35. Concept of Administrative Act. Administrative act is every direction, decision

or other sovereign measure taken by an authority for the regulation of a particular
case in the sphere of public law directed at immediate external legal consequences.
A general order (Allgemeinveifiigung) is an administrative act which addresses a
category of persons who are determined or are determinable by common character-
istics or which concerns the public law quality of a thing or its use by the general
public.

36. Provisions incidental to Administrative Act. (1) To an administrative act which

may be claimed as of right an incidental provision may be added only if such provi-
sion is permitted by law or if it ensures that the statutory requirements of the admin-
istrative act are fulfilled.
(2) Without prejudice to clause (1) an administrative act may in exercise of judicious
discretion be taken with -
1. a provision according to which a benefit or burden at a definite point of time be-
gins, ends or for a definite period applies (fixing a time limit);
2. a provision according to which commencement or cessation of a benefit or bur-
den depends on an uncertain occurrence of a future event (condition);
3. a proviso for revocation;
or may be linked with
4. a provision, through which an act, acquiescence or omission is prescribed for the
beneficiary (direction);
5. a provision for subsequent adoption, change or completion of a direction.
(3) An incidental provision must not conflict with the purpose of the administrative
act.

37. Definiteness and Form of Administrative Act. (1) The contents of an administra-
tive act must be sufficiently definite.
(2) An administrative act may be expressed in writing, by words of mouth or in any
other form. An oral administrative act must be confirmed in writing if there is a
legitimate interest in such confirmation and the concerned person demands it im-
mediately.
(3) A written administrative act must exhibit the authority that takes it and the sig-
nature or name of the head of that authority, his representative or nominee.
Formation of an Administrative Act 169

(4) Notwithstanding anything in clause (3) an administrative act expressed through

an automatic device may not have the signature or name. For the statement of con-
tents key marks may be applied, if one to whom the administrative act is addressed
or who is going to be affected by it may on the basis of the explanations given there-
in clearly understand the contents of the administrative act.

38. Assurance. (1) A promise made by a competent authority to take or refrain

from taking an administrative act (assurance) must be in writing to be effective. If
under the provisions of any law before the taking of the promised administrative act
hearing of a participant or participation of another authority or a committee is re-
quired, then the promise may be made only after the hearing of the participants or
participation of the authority or the committee.
(2) ...
(3) The authority is not bound by a promise if after the making of the promise the
factual or legal basis of it is so changed that the authority would have not made such
a promise had it known the change or could not have made such a promise on legal
grounds.

39. Reasons for Administrative Act. (1) A written administrative act or an act con-
firmed in writing must carry written reasons. In the reasons important factual and
legal grounds which the authority has taken into consideration in arriving at its de-
cision have to be communicated. Reasons for discretionary decisions must also ex-
hibit the view points on which the authority has exercised its discretion.
(2) Reasons are not required,
1. to the extent the authority conforms to an application or follows a declaration
and the administrative act does not affect the rights of a third party;
2. to the extent the opinion of the authority on the factual or legal position is already
known or is easily discernible even without written reasons to him for whom the
administrative act is addressed or who is affected by it.
3. if the authority takes similar administrative acts in large number or with the help
of an automatic equipment and in the circumstances of the particular case rea-
sons are not expected;
4. ifthey ensue from a legal provision;
5. if a general order is publicly notified.

40. Discretion. If an administrative authority is authorized to act in its discretion, it

has to exercise its discretion in consonance with the purpose of the authorization
and has to observe the legal limits of the discretion.

41. Notification of Administrative Act. (1) An administrative act has to be notified

to those participants to whom it is addressed and to those who are affected by it ...
(2) ...
(3) If it is permitted by law, an administrative act may be publicly notified. A gener-
al order may also be publicly notified if individual notice to the participants is not
feasable.
170 Appendix II. Law of Administrative Procedure

42. Patent Errors in Administrative Act. The authority may correct at any time typ-
ing, mathematical, and other similar errors in an administrative act. In case oflegiti-
mate interests of the participant they have to be corrected. The authority is entitled
to demand the presentation of the document which has to be corrected.

Chapter 2. Continuing Force of Administrative Act

43. Effectiveness of Administrative Act. (1) An administrative act becomes effective

from the time it is notified to the person to whom it is addressed or who is affected
by it. It is effective with the contents that are notified.
(2) An administrative act remains in effect till and to the extent it is not withdrawn
or revoked, or in any other manner invalidated, or through the expiry of time or in
any other manner comes to an end.
(3) A void administrative act is ineffective.

44. Nullity of Administrative Act. (1) An administrative act is null and void to the
extent it suffers from a specially grave defect and such defect is evident on the ap-
preciation of all the surrounding circumstances.
(2) Without prejudice to the provisions of clause (1) an administrative act is void.
1. If it is expressed in writing but does not disclose the authority that has taken it;
2. if under the law it can be taken only by the delivery of a document but its form is
not satisfied;
3. if it is taken by an authority outside its competence as laid down in 3 (1) No.1
without being authorized to do so;
4. if for factual reasons nobody can perform it;
5. if it requires the commission of an illegal act which creates liability for punish-
ment or fine;
6. if it conflict with good morals.
(3) An administrative act is not void merely because -
1. the provisions about the territorial competence have not been observed except in
case of clause (2) No.3;
2. a person excluded under 20 (1) sentence 1 Nos. 2 to 6 has participated;
3. a committee required by law to participate in the taking of an administrative act
has not passed the decision prescribed for taking of administrative act or did not
have the quorum;
4. any other authority required by law to participate has not participated.
(4) If only a part of an administrative act is void but that part is so important that the
authority would not have taken the administrative act without that part, then the en-
tire act is void.
(5) A void administrative act may be so declared by the administrative authority at
any time suo moto and it must so declare on an application where the applicant has
a legitimate interest in such declaration.
Continuing Force of Administrative Act 171

45 Curing of Defects of Procedure and Form. (1) Unless it makes an administrative

act void under 44, a violation of the provisions relating to form or procedure is
inconsequential, if -
1. anapplicationrequiredforthetakingofanadministrativeactismadeaftertheact;
2. the required reasons are given after the act;
3. the required hearing to a participant is given after the act;
4. the decision of a committee whose participation in the taking of the administra-
tive act is required has considered it afterwards;
5. the required participation of another authority takes place afterwards.
(2) Actions under clause (1) Nos. 2 to 5 may take place only before the conclusion of
the procedure and in case no procedure takes place before the filing of a suit in ad-
ministrative court.

46. Consequences of Defects of Procedure and Form Quashing of an administrative

act, which is not void under 44, cannot be claimed on the ground that it has been
taken in violation of the provisions on procedure, form or territorial competence, if
no other decision could have been taken in the matter.

47. Conversion of Defective Administrative Act. (1) A defective administrative act

can be converted into another administrative act, if it has the same object, could be
legally taken by the deciding authority in the form and procedure that has taken
place and the conditions for taking it are fulfilled.
(2) Clause (1) does not apply, if the administrative act into which the defective ad-
ministrative act had to be converted conflicts with the discernible intent of the de-
ciding authority or its consequences for the concerned person would be more unfa-
vourable than those of the defective administrative act. Conversion is further imper-
missible, if the defective administrative act could not be withdrawn.
(3) A non-discretionary decision cannot be converted into a discretionary decision.

48. Withdrawal of an Unlawful Administrative Act. (1) An unlawful administrative

act may be withdrawn fully or partly, prospectively or retrospectively, even after it
has become unchallengeable. An administrative act which establishes or confirms a
right or a legally important benefit (beneficial administrative act), may be with-
drawn only subject to the provisions of clauses (2) to (4).
(2) An unlawful administrative act, which grants a recurring or non-recurring cash
payment or partly payment in kind or which is a pre-condition for such grant, can-
not be withdrawn to the extent the beneficiary has relied on the force of the admin-
istrative act and on balancing with public interest his reliance deserves protection.
As a rule the reliance deserves protection, if the beneficiary has already consumed
the granted benefit, or has made a disposition which [disposition] he cannot revoke
or can revoke only subject to unreasonable loss. The beneficiary cannot plead his
reliance, if he
1. has procured the administrative act through malicious deceit, threat or bribing;
2. has procured the administrative act through statements which were substantially
wrong or incomplete;
172 Appendix II. Law of Administrative Procedure

3. knew the unlawfulness of the administrative act, or could not know it because of
his gross negligence.
As a rule in the cases of sentence 3 the administrative act shall be withdrawn
with retrospective effect. To the extent the administrative act has been withdrawn
the payments already made have to be refunded ... The payments to be refunded
must be settled by the authority along with the withdrawal of the administrative act.
(3) If an administrative act not falling under clause (2) is withdrawn, the authority
shall, on the application of the affected person, make up any loss suffered on ac-
count of his reliance on the administrative act insofar as his reliance on balancing
with public interest deserves protection ...

49. Revocation of a Lawful Administrative Act. (1) A lawful, but not beneficial, ad-
ministrative act may be revoked partly or fully with prospective effect even after it
has become unchallengeable, except when a new administrative act with the same
contents is to be taken or for other reasons revocation is impermissible.
(2) A lawful beneficial administrative act may be revoked, partly or fully, with pro-
spective effect even after it has become unchallengeable -
1. if revocation is permissible in law or the administrative act is subject to revoca-
tion;
2. if the administrative act is coupled with a direction and the beneficiary has not
carried out the direction within the statutory time limit;
3. if due to the occurance of subsequent facts the authority would not be competent
to take the administrative act and if without revocation public interest would be
endangered;
4. if due to change in legal provisions the authority would be entitled not to take the
administrative act, to the extent the beneficiary has not yet received or made use
of any special benefit, and without its revocation public interest would be en-
dangered;
5. in order to prevent or eliminate harm to public weal.
(3) .. .
(4) .. .
(5) If a beneficial administrative act falling under clause (2) Nos. 3 to 5 is revoked,
the authority, on the application of the affected person, has to compensate him for
any loss of property suffered due to his reliance on the administrative act to the ex-
tent his reliance deserves protection. Section 48 clause (3) sentences 3 to 5 apply cor-
respondingly.

SO. Withdrawal and Revocation in Proceedings for Judicial Relief. Section 48

clause (1) sentences 2 to 4 and clause (b) as well as 49 clause (2), (3) and (5) do not
apply if a beneficial administrative act challenged by a third person is quashed dur-
ing the proceedings for administrative relief or proceedings in an administrative
court to the extent the objection or the suit is remedied thereby.
Public Law Contract 173

51. Resumption of Proceedings. (1) On the application of the concerned person the
authority shall decide about the cancellation or modification of an unchallengeable
administrative act, if -
1. the legal or factual basis of the administrative act has subsequently changed in fa-
vour of the concerned person;
2. new evidence exists which would have led to a more favourable decision for the
concerned person;
3. corresponding grounds for resumption under 580 of the Code of Civil Proce-
dure exist.
(2) The application is admissible only if in the previous proceedings, particularly in
the proceedings for judicial relief, the concerned person without any fault of his was
denied the opportunity of asserting the grounds on which he seeks resumption.

Part IV. Public Law Contract

54. Permissibility of Public Law Contract. To the extent the law does not oppose, a
legal relationship in the sphere of public law can be established, modified or can-
celled through contract (public law contract). Particularly an authority instead of
taking an administrative act may conclude a public law contract with them to whom
it would have otherwise addressed an administrative act.

55. Compromise Contract. A public law contract within the meaning of 54 sen-
tence 2 may be concluded by which on a prudent assessment an existing uncertainty
with respect to any facts or legal position is removed through mutual yielding (com-
promise), provided the authority in its judicious discretion holds the conclusion of
the compromise suitable for the removal of uncertainty.

56. Reciprocal Contract. (1) A public law contract within the meaning of 54 sen-
tence 2 can be concluded by which the party to the contract binds the authority to a
consideration, if the consideration is agreed for a definite purpose in the contract
and serves the authority in fulfilling its public functions. The consideration in the
totality of the circumstances must be adequate and must have an essential connec-
tion with the contractual performance of the authority.
(2) If there exists a claim in the performance of the authority, then only such consid-
eration can be agreed which could be the subject of a provision incidental to an ad-
ministrative act under 36.

57. Written Form. Unless any other form is provided by law a public-law contract
is to be concluded in writing.

58. Consent of Third Parties and Authorities. (1) A public-law contract which af-
fects the rights of a third party becomes effective only after that third party consents
in writing.
174 Appendix II. Law of Administrative Procedure

(2) If, instead of an administrative act which under the law requires permission,
consent or agreement of another authority, a contract is concluded, then such con-
tract becomes effective only after the other authority has participated in the pre-
scribed form.

59. Nullity of Public-law Contract. (1) A public-law contract is null and void, if the
nullity results from the corresponding application of the provisions of the Civil
Code.
(2) A contract within the meaning of 54 sentence 2 is further void, if
1. an administrative act with corresponding contents would be void;
2. an administrative act with corresponding contents would be unlawful not due on-
ly to the defects of procedure or form within the meaning of 46 and the unlaw-
fulness was known to the parties to the contract.
3. the conditions for concluding a compromise contract do not exist and an admin-
istrative act with corresponding contents would be unlawful not due only to de-
fects of procedure or form within the meaning of 46;
4. the authority promises a consideration impermissible under 56.
(3) Should the nullity affect only a part of the contract, the entire contract becomes
null and void unless it is assumed that it (the contract) would have been concluded
without the void part.

60. Adjustment and Revocation in Special Cases. (1) If the circumstances which
have been decisive for the settlement of the terms of the contract have since the
making of the contract so materially changed that a party to the contract is not to be
expected to stick to the original contractual arrangement, then that party may ask
for the adjustment of the terms of the contract to the changed circumstances or for
revocation of the contract to the extent adjustment is not possible or a party to the
contract is not to be expected of [adjustment]. The authority may also revoke a con-
tract to prevent or eliminate a serious harm to public weal.
(2) Unless any other form is prescribed by law, revocation requires a written form. It
should be reasoned.

61. Submission to Immediate Execution. (1) Any party to the contract may submit
to immediate execution of a public-law contract within the meaning of 54 sen-
tence 2. The authority in this matter must be represented by its head or his general
representative or a member of public services who is qualified for the office of a
judge or fulfils the conditions of 110 sentence 1 of the German Law on Judges.
Submission to immediate execution is effective only if it has been ratified by the
professionally competent supervisory authority of the contracting authority. Ratifi-
cation is not required if the submission has been declared by or to the highest Fed-
eral or Land authority.

62. Supplementary Application of Provisions. Unless something different follows

from 54 to 61, the other provisions of this Law apply. To supplement [these provi-
sions] the provisions of the Civil Code shall apply correspondingly.
Formal Administrative Procedure 175

Part V. Special Kinds of Procedure

Chapter 1. Formal Administrative Procedure

63. Application of the Provisions about Fonnal Administrative Procedure. (1) For-
mal procedure in accordance with this Law takes place if directed by law.
(2) Sections 65 to 71 and, unless something different follows from them, the other
provisions of this Law apply to formal administrative procedure.

64. Fonn of Application. If an application is a pre-condition for formal administra-

tive procedure, such application is to be made in writting to the authority or got re-
corded in its office.

65. Participation of Witnesses and Experts. (1) Witnesses and experts are respec-
tively under a duty to give their statements and opinions in the formal administra-
tive procedure ...

66. Duty to Hear the Participants. (1) In formal procedure participants have to be
given an opportunity to express themselves before the decision.
(2) Opportunity is to be given to the participants to examine witnesses and experts
and to attend judicial inspection and put pertinent questions; any written opinion
must be made available to them.

67. Requirement of Oral Proceedings. (1) The authority decides after oral proceed-
ings. For that the participants have to be summoned after reasonable notice in writ-
ing ... A public notification may be substituted if more than 300 invitations have to
be sent ...
(2) The authority may decide without oral proceedings, if -
1. with the agreement of all the participants, an application is fully complied with;
2. no participant has filed any objection in the prescribed time against the intended
measure;
3. the authority has informed the participants, that it proposes to decide without
oral proceedings and no participant has made any objection against it within the
prescribed time;
4. all the participants have waived it;
5. an immediate decision is necessary in the public interest.
(3) The authority must accelerate the proceedings so that as far as possible they are
disposed of in one day.

68. Nature of the Oral Proceedings. (1) The oral proceedings are not public. Re-
presentatives of the supervising authority and persons who are engaged with the au-
thority for training can participate in the proceedings. If no participant objects to it
other persons may be permitted by the chairman of the proceedings.
176 Appendix II. Law of Administrative Procedure

(2) The chairman of the proceedings must discuss the matter with the participants.
He must see that the unclear applications are clarified, pertinent applications are
made, insufficient statements are completed as well as all the important explana-
tions of the facts of the case are given.
(3) ...
(4) A written record of the oral proceedings has to be prepared...

69. Decision. (1) The authority decides on the evaluation of the total result of the
proceedings.
(2) Administrative acts which conclude the formal procedure have to be expressed
in writing, provided with written reasons, and served on the participants; no rea-
sons are required in cases falling under 39 (2) Nos. 1 and 3 ...
(3) If the formal procedure is concluded in any other manner then the participants
must be informed of that. ..

70. Challenge to Decisions. No review by administrative authorities in objection

proceedings (Vorverfahren) is required before filing a suit in an administrative court
whose subject-matter is an administrative action taken in formal proceedings.

Chapter 2. Procedure for Planning Permission

72. Provisions Applicable to Planning Permission. (1) If the procedure for planning
permission is regulated by law, then 73 to 78 apply and, unless otherwise provided,
also the other provisions of this Law; 51 is inapplicable, 29 has to be applied sub-
ject tothe proviso that the inspection of files is to be allowed in judicious discretion.

73. Procedure for Hearing. (1) The applicant has to present the plan to the hearing
authority. The plan consists of drawings and explanations by which the project, its
cause, and the land and installations affected thereby may be known.
(2) The hearing authority takes the opinion of the authorities whose sphere of activi-
ties is affected by the project.
(3) On the order of the hearing authority the plan is to be displayed for inspection
for one month in the commune in which the draft apparently operates. The display
may be dispensed with, if the group of affected persons is known and they were giv-
en the opportunity to see the plan within a reasonable time.
(4) Anyone whose interests are affected by the project may file written objections
against the plan or get them recorded with the hearing authority or with the com-
mune within two wekks of the expiry of time for the inspection of the project. In
cases of clause (2) sentence 3 the hearing authority fixes the time for filing objec-
tions.
(5) The communes in which the plan is displayed have to notify the display at least
one week in advance. The notification has to inform,
Procedure for Planning Permission 177

1. where and in which time span the plan is being displayed;

2. that any objections have to be made before the authority prescribed in the notifi-
cation within the specified time;
3. that in case a participant absents himself on the date fixed for discussion the dis-
cussion may take place even without him and delayed objections may not be con-
sidered at the time of discussion or decision.
4. that
(a) the date of discussion may be informed through public notification to the per-
sons who have filed objections,
(b) the service of decision on the objections may be replaced by public notifica-
tion, if more than 300 notices or services have to be issued.
Non-resident concerned persons, whose identity and stay is known or who can be
informed within a reasonable time, must at the direction of the hearing authority be
informed of the display with the information given in sentence 2.
(6) After the expiry of the period for making objections, the hearing authority has to
discuss the objections made in time against the plan and opinions of the authorities
with the applicant, the authorities, the concerned persons as well as the persons who
have made objections; the hearing authority may also discuss the delayed objec-
tions. The date for discussion has to be notified at least one week in advance in the
customary manner of the locality. The authorities, the applicant and those who have
made objections have to be notified of the date of discussion. If, excluding the au-
thorities and the holder of the project, there are more than 300 notices to be sent, the
notice can be replaced by public notification... In other respects the provisions re-
lating to oral proceedings in the formal procedure (67 cl.(l) sentence 3, cl.(2)
Nos. 1 and 4 and cl.(3), 68) apply to the discussion correspondingly.
(7) Notwithstanding anything in clause (6) sentences 2 to 5, the date of discussion
may be fixed in the notification made in accordance with clause (5) sentence 2.
(8) Should any displayed plan be modified and then the sphere of functioning of an
authority or the interests of a third party are affected for the first time or are affected
more strongly than before, then such modification has to be notified to them and an
opportunity given to express their opinion or make objections within two weeks. If
the modified plan operates on the territory of another commune, then the modified
plan is to be displayed in that commune; clause (3) to (6) will apply corresponding-
ly.
(9) Consequent to hearing procedure the hearing authority gives an opinion, possi-
bly within a month from the conclusion of the discussion, and forwards it along
with the plan, the opinions of authorities and undisposed of objections to the plan-
ning authority.

74. Order of Planning Permission. (1) The planning authority permits the plan (or-
der of planning permission). The provisions on decision and nullification of deci-
sions in formal administrative procedure ( 69 and 70) are to be applied.
(2) In the order of planning permission the authority decides the objections on
which no agreement could be reached in the discussion held before the hearing au-
178 Appendix II. Law of Administrative Procedure

thority. It has to require the applicant to take precautionary measures, or to erect

and maintain installations which are necessary either for the welfare of the general
public or for diminishing the injurious effects on the rights of others. If such precau-
tionary measures or installations are unreasonable or inconsistent with the project,
then the concerned person has a right to reasonable compensation in cash.
(3) To the extent a final decision is not yet possible that has to be expressed in the
order of planning permission; with that the applicant is asked to submit within time
the missing documents or documents specified by the hearing authority.
(4) The order of planning permission is to be served on the applicant, the known
concerned persons and those whose objections have been disposed of. A copy of
the order alongwith an advice on legal remedy and a copy of the permitted plan is to
be displayed in the commune for two weeks; the place and time of display have to
be notified in the local customary manner. With the expiry of the period of display
the order is deemed to have been served on all the affected persons; this has to be
indicated in the notification.
(5) If, in addition to the applicant, service under clause (4) has to be made on more
than 300 persons, it can be replaced by a public notification.... With the expiry of
the period of display the order is deemed to have been served on the affected per-
sons; this is to be indicated in the notification. After the public notification the or-
der of planning permission may be demanded in writing by the concerned persons
and those who made objections; it is to be likewise indicated in the notification.

75. Legal Effects of Planning PennissioD. (1) By the planning permission the per-
missibility of the project, including that of the necessary consequential measures on
other installations in regard to all public interests affected by it, is declared; other
official decisions are incidental to it, particularly public law approval, grant, per-
mission, appropriation, consent, and planning permission are not required. By the
planning permission all the public law relationships between the applicant and
those affected by the plan are regulated.
(2) If the order of planning permission has become unchallengeable, the rights of
forbearance from the project, of removal or modification of the installations, or of
forbearance from their use, are debarred. If after the unchallengeability of the plan
the unforseeable effects of the project or of the corresponding installation declared
in the plan are seen on the rights of a third person for the first time, then the affected
person may demand precautions or the erection and maintenance of installations
which exclude the injurious effects. They have to be imposed on the applicant by an
order of the authority permitting the plan. If such impositions or installations are
unreasonable or inconsistent with the project, then he is entitled to reasonable
compensation in cash. If the impositions or installations covered by sentence 2 be-
come necessary, because changes have taken place on the adjoining site after the
conclusion of the procedure for planning permission, then the owner of the adjoin-
ing site has to bear the costs arising therefrom, unless the changes have been caused
by natural events or an act of God; sentence 4 is not to be applied.
(3) ...
Procedure for Legal Remedy 179

(4) The plan becomes ineffective, if its implementation is not started within five
years from the commencement of its unchallengeability.

76. Modification of Plan before Completion of Project. (1) If the permitted plan is
modified before the completion of the project, it requires fresh proceedings for
planning permission.
(2) In respect of insignificant modifications in a plan the planning authority may
neglect fresh proceedings, if the interests of other persons are not affected or the af-
fected persons consented to the modifications.
(3) If in a case covered by clause (2) or in any other case of insignificant modifica-
tion of a plan, the planning authority carries out a procedure for planning permis-
sion, then it requires no proceedings for a hearing and no public notification of the
order of planning permission.

77. Revocation of an Order of Planning Permission. The planning authority has to

cancel a planning permission order, if a project whose implementation has started
has been finally abandoned. In the order of cancellation the applicant may be asked
to restore the original position, or to take other suitable measures to the extent they
are necessary in the public weal, or for avoiding the injurious effects on the rights of
others. If such measures become necessary because changes have taken place on the
adjoining site after the conclusion of the procedure for planning permission, then
the applicant may be obliged by an order of the planning authority to take suitable
precautionary measures; however, the owner of the adjoining site has to bear the
costs arising therefrom, unless the changes have been caused by natural events or an
act of God.

78. Coinciding of Several Projects. (1) If several independent projects for whose
execution procedure for planning permission is provided coincide in such a way
that for these projects or for parts thereof only one uniform decision is possible, and
at least one of the procedures for planning permission is regulated by Federal law,
then for these projects or parts thereof only one planning procedure takes place.

Part VI. Procedure for Legal Remedy

79. Legal Remedy against Administrative Acts. Unless otherwise provided by law
the Law on Administrative Courts and the rules for its implementation apply to for-
mal legal remedy against the administrative acts; in other respects the provisions of
this Law apply.

80. Reimbursement of Costs in Administrative Remedy. (1) To the extent an objec-

tion succceeds, the legal entity whose authority has taken the challenged adminis-
trative act has to reimburse the person who has filed objection for the expenses nec-
essary for the expedient prosecution or defence. This applies even if the objection
remains unsuccessful because according to 45 the violation of a provision about
form or procedure is inconsiderable. To the extent an objection remains unsuccess-
180 Appendix II. Law of Administrative Procedure

ful, the person who has filed the objection has to reimburse the authority which has
taken the challenged administrative act for the expenses necessary for the expedient
prosecution or defence; this does not apply if the objection has been filed against an
administrative act taken within the scope of -
1. existing or past public law terms of employment or office, or
2. an existing or past statutory public duty or an activity which may be performed
on the footing of statutory public duty.
The expenses arising from the mistakes of the claimant for reimbursement have to
be borne by him; the mistake of the representative has to be attributed to the person
whom he represents.
(2) The fee and other expenses of an advocate or any other authorized representa-
tive are reimburseable, if the assistance of the authorized representative was neces-
sary.
Appendix III
Law on Administrative Courts 1960
( Verwaltungsgerichtsordnung vom 21. Januar 1960)

Part I

Chapter 1. Courts

1. The administrative jurisdiction is exercised by the courts independent of and

separate from the administrative authorities.

2. Within the framework of the general administrative jurisdiction in the Laender

the lower and higher administrative courts (Verwaltungsgerichte and Oberverwal-
tungsgerichte) and in the Federation the Federal Administrative Court (Bundesver-
waltungsgericht) with its seat in Berlin have to be established.

Chapter 2. Judges

15. (1) Except to the extent provided in 16 and 17 judges are appointed for life.'~

Chapter 6. Access to Administrative Courts and Competence

40. Access to administrative courts is accorded in all public law disputes other
than constitutional law disputes to the extent such disputes are not expressly as-
signed to some other court by a Federal law. Public law disputes within the sphere
of Land law may be assigned to other courts by Land laws.
(2) For pecuniary claims arising from sacrifice made in the public weal and from
public law deposits as well as for claims for damages arising from the violation of
public law obligations which are not based on a public law contract, access to ordi-
nary courts is accorded. Special provisions of the law on civil servants and access to
courts in case of compensation of loss to property due to withdrawal of illegal ad-
ministrative acts remain unaffected.

41. (1) The courts of general administrative jurisdiction decide on the admissibility
of access to them. If a court of general administrative jurisdiction has first conclu-
sively declared the inadmissibility, then any other court cannot deny jurisdiction in

,. Section 16 authorizes the appointment of judges of other courts and professors oflaw to the admin-
istrative courts for a definite period. Section 17 provides for judges on probation and on commission.
182 Appendix III. Law on Administrative Courts 1960

that matter on the ground that it holds that the access to the courts of general ad-
ministrative jurisdiction is given.
(2) If a court of ordinary jurisdiction or a court of labour, fiscal or social jurisdiction
has first declared the admissibility or inadmissibility of access to it, then the courts
of general administrative jurisdiction are bound by that decision.
(3) If a court of general administrative jurisdiction holds that access to it is not giv-
en, then on the application of the plaintiff by the same judgment in which it holds
the inadmissibility of access to it, it refers the matter to the court of first instance to
which it holds the access is given ....

42. (1) Quashing of an administrative act (suit for invalidity) as well as order to
take an administrative act which has been refused or omitted (suit for mandatory in-
junction) may be demanded through a suit.
(2) Unless otherwise provided by law, a suit is admissible only if the plaintiff asserts
that through the administrative act or its refusal or omission his rights have been in-
fringed.

43. (1) Declaration of the existence or non-existence of a legal relationship, or the

nullity of an administrative act, may be demanded through a suit, if the plaintiff has
a legal interest in a prompt declaration (declaratory suit).

Chapter 8. Special Provisions for Suits for Invalidity and Mandatory Injunction

68. (1) Before filing a suit for invalidity the legality and expediency of an adminis-
trative act have to be examined in administrative objection proceedings before an
authority (Vorverfahren) . ...
(2) Clause (1) applies correspondingly to a suit for mandatory injunction if the ap-
plication for taking an administrative act has been rejected.

Chapter 9. Procedure in the First Instance

81. (1) A suit has to. be filed in the court in writing. In the lower administrative
courts it can also be filed by getting it recorded with the clerk of the court.

86. (1) The court examines the facts of a case suo moto; the participants are called
upon to cooperate. It is not bound by the pleadings and evidence of the partici-
pants.

88. The court cannot go beyond the claim of the plaintiff but it is not bound by the
wordings of the petition.

101. (1) Unless otherwise specified the court decides on the basis of oral proceed-
ings.
Judgments and Other Decisions 183

(2) With the agreement of the participants the court may decide without oral pro-
ceedings.

Chapter 10. Judgments and Other Decisions

108. (1) The court decides according to its free conviction formed from the overall
result of the proceedings. The grounds which have guided the judicial conviction [or
belief] are to be given in the judgment.

113. (1) To the extent an administrative act is unlawful and through it the rights of
the plaintiff have been infringed, the court quashes the administrative act as well as
the interim ruling on an objection [in administrative proceedings]. If the administra-
tive act has already been executed, then on an application the court may also pro-
nounce that, and how, the administrative authority has to reverse the execution ....
If through withdrawal or otherwise the administrative act has already ceased to
exist, then on application the court through judgment pronounces that the adminis-
trative act was unlawful, if the plaintiff has a legitimate interest in such a decla-
ration.
(2) If the challenged administrative act concerns a payment in cash or other fungi-
ble things or a declaration, then the court may fix the payment at different amount
or may replace the declaration by another [declaration].
(3) If in addition to the quashing of an administrative act a performance may also
be demanded, then in the same proceedings order for performance is also permissi-
ble.
(4) To the extent refusal or omission of an administrative act is unlawful and by that
the rights of the plaintiff are infringed, the court pronounces the obligation of the
administrative authority to undertake the applied official action, if the matter is ripe
for the claim. Otherwise it pronounces the obligation to inform the plaintiff observ-
ing the opinion of the court.

114. To the extent the administrative authority is authorized to act in its discretion,
the court also examines whether the administrative act or its refusal or omission is
unlawful for the reason that the statutory limits of the discretion have been ex-
ceeded or the discretion has not been exercised for the purpose of authorization.
Appendix IV
An Illustrative
Judgment

ADMINISTRATIVE COURT HAMBURG

9VG2653/81 JUDGMENT
In the Name of the People
In the Administrative Law Matter

Firm AuBenwerbung ABC Pvt. Ltd.&Co KG,

represented through the Firm ABC
Administration Pvt. Ltd., which is represented
through its General Manager Heinz W. Stroer,
WesselingerstraBe 22,
5000 Cologne 50, Plaintiff

Served Counsels:
instead Advocates
of pro- Bohne, Koelzer, Ruthmann,
nounce- Krefelder StraBe 58
ment 4040 NeuB,

versus
Free and Hanse City Hamburg,
represented through the
District Office Altona
- District Law Office -
Defendant
On the basis of the oral proceedings held on 7 January 1982, the adminis-
trative court Hamburg, division 9, through
the Presiding Judge at the
Administrative Court Brandis,
the Judge } at the Adminis- Grube-Mentzel,
the Lady Judge trative Court Haase
the Honourary [lay] Lady Judge Auler,
the Honourary [lay] Judge Bernhard
has legally decided:

The decision of 26 May 1981 and the decision on objection of 10 September 1981 is
set aside.
An Illustrative Judgment 185

The defendant is obliged to grant the building pennission for setting up two ad-
vertising boards at house Carstens-Rehder-Straf3e 67 in Hamburg 50.
In so far as this judgment is provisionally enforceable, the defendant shall bear
the cost of the proceedings. The defendant may avert enforcement by depositing a
security in the amount of 850, - OM unless the plaintiff pays the security in the
same amount before the enforcement.

Advice on Legal Remedy

Against this judgment an appeal is available to the participants [parties] in the high-
er administrative court. It has to be filed within one month of the service of this
judgment in writing in, or get recorded through the clerk of, the office of, the Ad-
ministrative Court Hamburg Millerntorplatz 1, 2000 Hamburg 4. The memorandum
of appeal must denote the challenged judgment and include a definite prayer. The
supporting facts and evidence should be specified.
The time limit is also available if the appeal arrives in the Hamburg Higher Ad-
ministrative Court, Sievekingplatz 2, 2000 Hamburg 36.
The provision of 134 VwGO (leap-frog revision) is infonned.
Copies of the appeal as well as of all documents are to be sent to the partici-
pants.

Facts
The plaintiff desires the grant of pennission to set up two advertising boards ...
2.75 m high and 3.75 m wide at house Carsten-Rehder-Straf3e 67.
Adjoining the concerned wall of the house is a piece of land on the eastern side
which is the property of the defendant. Presently it is being used as a parking place.
On 30 April 1981 the plaintiff applied for the grant of pennission for setting up
the advertising boards. Simultaneously it also enclosed the consent of the owner of
the house Carsten-Rehder-Straf3e 67 for the setting up of the boards.
By its order of 26 May 1981 the defendant refused the grant of permission on the
simple ground that in its opinion entry on its land for setting up of the boards and
changing the bills is to be denied under the civil law. Against this decision the plain-
tiff filed an objection on 3 June 1981 on the following grounds: the public law pro-
visions are not against the grant of building permission. An examination of a build-
ing project under civil law is in principle closed to the defendants. Such examina-
tion is pennissible only if the factual or legal impossibility of the utilization of the
pennission is evident on its face, which is not the case here.
The defendant by its decision of 10 September 1981, served on 17 September
1981, rejected the objection: The advertising boards would interfere in the air space
of the adjoining land. The plaintiff, however, could not produce the consent of the
owner of the adjoining land in writing required under 94 cl. 2 sentence 2 of the
Hamburg Building Law (HBauO). It is under no obligation to give its consent be-
cause - as follows from 903 of the Gennan Civil Code - as owner it could exclude
others from any activity [on its land].
The plaintiff has filed a suit with a written plaint on 12 October 1981, entered on
15 October 1981, on the following grounds. It [plaintiff] is supposed to enclose the
consent of the owner of the house Carsten-Rehder-Straf3e 67. The provision of 94
of the HBauO do not require the consent of the owner of the adjoining land. Its
186 Appendix IV. An Illustrative Judgment

[plaintiffs] application could be rejected only if it lacked the so-called interest in the
application. That would have been the case only if on clear and evident civil law
grounds it could not make any use of the building permission. It [plaintiff] refers to
the final judgment of the administrative court DUsseldorf - Az.13 K3041179 -.
The plaintiff prays,
after setting aside the decisions of 26 May 1981 and 10 September 1981 the de-
fendant be obliged to grant permission for setting up of two advertising boards
on the land Carsten-Rehder-StraBe 67, Hamburg.
The defendant prays,
for the dismissal of the suit.
It [defendant] refers to its statement in the decision on objection and further sub-
mits: The provisions of 94 of the HBauO shift the burden of proof, according to
which the person, who wants to build, must prove that his interest in the application
exists. It [defendant] has a special concern in denying the use of its land to the plain-
tiff because through a contract it has allowed the use of the surface of the land in the
city exclusively to the Firm Hamburger AuBenwerbung Pvt.Ltd. It contravenes the
principle of good faith, if on the one hand it [defendant] grants the building permis-
sion and on the other denies entry into its land for setting up the boards and sticking
of bills.
As to further details reference is made to the pleadings of the parties and the re-
cord of the case of the defendant in these proceedings drawn by the court.

Reasons for the Decision

The suit is admissible and also well-founded.
The defendant is under an obligation to grant a building permission to the plain-
tiff under 99 and 91 cl. (2) HBauO to set up two advertising boards at house Car-
stens-Rehder-StraBe 67. The public law provisions are not against such grant, more-
over the conditions of 94 cl.(2) of the HBauO have been fulfilled. According to
that provision so far as ' ... the builder is neither the owner of the land nor a tenant
.. .' he has to attach the written consent of the owner with the building proposal.
The plaintiff has attached the written consent of the owner of the house Carsten-
Rehder-StraBe67. It does not require the consent of the defendant as owner of the
adjoining land. The text of 94 HBauO expressly speaks of the owner of the land,
i. e., of the building site. The building site in the present case is the house Carsten-
Rehder-StraBe 67, because at this house the advertising boards have to be set up.
Simply because the boards may interfere few ems. in the air space of the adjoining
land, the adjoining land does not become the building site. It does not make any dif-
ference that by connecting the boards with the house it deals with a change in the
building installation on the house land.
The provisions of 94 cl. (2) sentence 2 of the HBauO have not to be interpreted
widely, that in case of projection of a building in the air space of the adjoining land
the consent of the owner of such land is also a condition for the grant of a building
permission. This follows from the object and meaning of the statutory rules. It
wants the authority to guard against the grant of permission if after full examination
of the application for building permission it is evident that the applicant cannot uti-
lize the permission because he is not the owner of the building site and has also not
attached the consent of the owner. On the other hand the provisions of 94 HBauO
An Illustrative Judgment 187

do not conceive that before the grant of a building permission all obstacles of civil
law, which could be inconsistent with the utilization of permission, are cleared out.
So also construction of a building may - apart from the law of obligations - be in-
consistent with other real property laws as, for example, easements. This is not the
function of the planning authority to undertake such a comprehensive examination
under the civil law about the feasibility of the building.
The Hamburg Building Law itself assumes that no such examination is held. In
99 cl. (3) sentence 1 HBauO it is said: 'Through a building permission the private
rights of third parties are not affected.' After the grant of permission it is open to a
third party to prevent the construction of a building under the civil law, that he can
make defensive claim or a claim of forbearance under private law. This right is
available to the defendants also as owners of the adjoining land. Through the grant
of permission the defendant does not become bound under the civil law to suffer a
superstructure on its land or entry into it for putting up the new bills.
The existing judicial precedents assume that the claim of an applicant evolved
from the general principles is absent only if the permission to be given is apparently
useless for him. There also exists a claim for the grant of building permission in
cases where a private law justification is missing, the evident uselessness of the
building permission is to be placed on high requirements (Comp. BVerwGE 50, 282,
285f.; Preuss. OVGE 14, 372ff.; VG Diisseldorf-BK3041179)

In the present case the civil law question whether the defendant has a right un-
der 903 of the German Civil Code to prohibit the use of the air space over his land
or it does not have such a right (under 905 sentence 2 of the Civil Code) is obvious-
ly not fair to be decided by the defendant as owner of the adjoining land. It appears
doubtful whether its contractual bindingness with the Firm Hamburger AuBenwer-
bung Pvt. Ltd. exhibits a sufficient interest within the meaning of 905 sentence 2 of
the Civil Code; moreover its exclusive bindingness to this firm refers only to placing
the city land surface at its disposal. Just as little is clear at the outset that the defen-
dant has a defensive claim under 862 read with 858 and 1004 of the Civil Code if
anybody enters its land for the purpose of setting up the advertising boards.
Other reasons for the refusal of building permission are not apparent. Particu-
larly the defendant has not proposed that the advertising boards do not satisfy the
requirements of 72 of the HBauO.
The decision on costs follows from 154 sentence 1 VwGO. The decision for in-
terim enforcement is based on 167 VwGO read with the correspondingly appli-
cable 708 No.11 and 711 ZPO [Civil Procedure Code]

[Sd.] [Sd.] [Sd.]

Brandis Grube-Mentzel Haase
Bibliographical Note

In view of the existing vast materials and their continuous inflow on the German
administrative law, a comprehensive bibliography of all the materials consulted and
relied upon in the preparation of this work is not intended. Interested readers may
rely upon the following bibliographies for all the materials in the German language:
Bibliography of German Law (C. F. Muller, Karlsruhe)
prepared by the German Association of Comparative Law that gives under subject
titles all the books and periodicals published in different branches of law since
1949.
Karlsruher Juristische Bibliographie (C. H. Beck, Munich)
in which one can find titles of all books, monographs, articles, etc., published from
month to month since 1965.
Fundheft for Offentliches Recht (c. H. Beck, Munich)
gives a systematic index of all the judicial decisions on general administrative law
along with other public law decisions, titles of all the articles, and contributions to
any anniversary publication or festschrift since 1948.
For materials published in English language one may rely upon
Szladits, C.: A Bibliography of Foreign and Comparative Law (Oceana, New York).
Of special help, particularly for the beginners, may be by the same author
Guide to Foreign Legal Materials French, German, Swiss (Oceana, New York, 1959).
Some basic literature of immediate interest on general administrative law may,
however, be mentioned.

A. Materials in German

Books
Among the early works which are still relied upon are:
Mayer, 0.: Deutsches Verwaltungsrecht, vols.l and 2 (Duncker&Humboldt,
Munich, 1st ed. 1895-96, 3d ed., 1924 reprinted 1966).
Jellinek, w.: Verwaltungsrecht(Springer, Berlin, 1st ed. 1927, 3d ed., 1931 reprinted
1966).
Peters, H.: Lehrbuch der Verwaltung (Springer, Berlin, 1949).
A comparatively recent but dealing with fundamental questions is:
Forsthoff, E.: Lehrbuch des Verwaltungsrecht, vol.1 (C. H. Beck, Munich, 10th ed.,
1973).
Materials in German 189

An encyclopaedic work is:

Wolff, H.J., Bachof, 0.: Verwaltungsrecht I(C.H.Beck, Munich, 9th ed.1974); Ver-
waltungsrecht II (C. H. Beck, Munich, 4th ed., 1976); Verwaltungsrecht III
(C. H. Beck, Munich, 4th ed., 1978).
A good collection of essays covering whole of general administrative law is:
Erichsen, H.-U., Martens, W. (eds.): Allgemeines Verwaltungsrecht(Gruyter, Berlin,
5th ed., 1981).
A comparatively smaller joint effort on similar lines is:
Schweickardt, R. (ed.): Allgemeines Verwaltungsrecht (Kohlhammer, Stuttgart,' 2d
ed., 1980).
Among the comparatively recent but smaller works are:
Achterberg, N.: Allgemeines Verwaltungsrecht(C. F. Miiller, Heidelberg, 1982).
Maurer, H.: Allgemeines Verwaltungsrecht (C. H. Beck, Munich, 1980).
Mayer, F.: Allgemeines Verwaltungsrecht (Richard Boorberg, Stuttgart, 4th ed.,
1977).
Obermayer, K.: Grundziige des Verwaltungsrechts und des VerwaltungsprozejJrechts
(Richard Boorberg, Stuttgart, 1975).
Wallerath, M.: Allgemeines Verwaltungsrecht(Reckinger, Siegburg, 1979).
Some of the major commentaries on the two legislations (Verwaltungsgerichts-
ordnung and Verwaltungsverfahrensgesetz) are:
Eyermann, E., Frahler, L.: Verwaltungsgerichtsordnung (C. H. Beck, Munich, 8th
ed., 1980).
Kopp, F.O.: Verwaltungsgerichtsordnung (C. H.Beck, Munich, 1981); Verwaltungs-
verfahrensgesetz (C. H. Beck, Munich, 2d ed., 1980).
Meyer, H., Borgs-Maciejewski, H.: Verwaltungsverfahrensgesetz (Alfred Metzner,
Frankfurt, 1976).
Redeker, K., von Oertzen, H.J.: Verwaltungsgerichtsordnung (Kohlhammer, Stutt-
gart, 7th ed., 1981).
Stelkens, P., Bonk, H.J., Leonhardt, K.: Verwaltungsverfahrensgesetz (C.H.Beck,
Munich, 1978).
Some of the authors have also arranged the two legislations into chapters. Well
known among them are:
Tschira, 0., Glaeser, W. S.: VerwaltungsprozejJrecht (Richard Boorberg, Stuttgart,
5th ed., 1982).
Ule, C.H.: VerwaltungsprozejJrecht(C.H.Beck, Munich, 7th ed., 1978).
Ule, C. H., Laubinger, H.-W.: Verwaltungsverfahrensrecht (Carl Heymanns,
Cologne, 2d ed., 1978).

Case Books
There is no tradition or practice of writing case books, particularly, on the lines, of
the United States. However, some books based on a combination of real and hypo-
thetical cases, primarily for guiding the students to prepare for their examinations,
have recently come up. Some of them are:
Erichsen, H.-U.: Verwaltungsrecht und Verwaltungsgerichtsbarkeit (C.H.Beck,
Munich,1977).
Herzog, R., Schick, W.: Allgemeines Verwaltungsrecht (C. H. Beck, Munich, 4th ed.,
1980).
190 Bibliographical Note

Vogel, K.: Der Verwaltungsrechtsfall (Franz Vahlen, Munich, 8th ed., 1980).
Zuleeg, M.: Fiille zum Allgemeinen Verwaltungsrecht (C. H. Beck, Munich, 1977).

Reports and Journals

The relevant judicial decisions on administrative law may be found in the following
reports and journals:
Entscheidungen des Bundesverwaltungsgerichts
Entscheidungen des Bundesveifassungsgerichts
Entscheidungen des Bundesgerichtshofes in Zivilsachen
Verwaltungsrechtsprechung in Deutschland (upto 1982)
Deutsches Verwaltungsblatt
Die Offentliche Verwaltung
Neue Juristische Wochenschrift
Neue ZeitschriftfUr Verwaltungsrecht(since 1982)

Articles
More of administrative law in Germany appears in articles than in books or even ju-
dicial decisions. Enlisting of all of them here will not only make this note unreason-
ably long but also remain incomplete in view of the continuous inflow of new ones.
It is enough to mention some of the major legal periodicals in which they appear.
They are:
Archiv des Offentlichen Rechts
Bayerische Verwaltungsbliitter
Deutsches Verwaltungsblatt
Die Offentliche Verwaltung
Neue Juristische Wochenschrift
Neue Zeitschrift fUr Verwaltungsrecht
Die Verwaltung
Verwaltungsarchiv
Verwaltungsrundschau

B. Materials in English
Books
There is no book on German Administrative law in English. One may, however,
find some discussion on some aspects of law in the following books:
Cohn, E.J.: Manual of German Law, vol. 1 Ch.1 (Oceana, New York, 2d ed., 1968).
van Dijk, P.: Judicial Review of Governmental Action and the Requirement of an In-
terest to Sue (SijthofT&NordhofT, The Hague, 1980).
Goodnow, F.J.: Comparative Administrative Law, vols.! and II (G.P.Putnam's
Sons, New York, 1893).
Nedjatti, J.M., Trice, J.E.: English and Continental Systems of Administrative Law
(North-Holland, Amsterdam, 1978).
Ress, G.: Judicial Protection of the Individual against Unlawful or Arbitrary Acts of
the Executive (Carl Heymanns, Cologne, 1971).
Materials in English 191

Wennergreen, B.: Protection of the Citizen in Administrative Procedures (Int'l Inst. of

Administrative Sciences, Brussels, 1969).

Articles
Albert, L. A.: "The Constitutional Supervision of Administrative Agencies in the
Federal Republic of Germany: Similarities and Contrasts with American Law",
53 Southern California L.Rev.583 (1979-80).
Bachof, 0.: "Special Administrative Tribunals", 25 Rev. Internationale des Sciences
Administratives 184 (1959).
Crossland, H. G.: "Rights of the Individual to Challenge Administrative Action Be-
fore Administrative Courts in France and Germany", 24 Int'l& Comparative
L. Q. 707 (1975).
Evans, R W.: "French and German Administrative Law", 14 Int'l & Comparative
L. Q. 1104 (1965).
Feld, w.: "The German Administrative Courts", 36 Thlane L. Rev. 495 (1961-62).
Gamer, J.F.: "Administrative Law: Civil and Common Law Systems Compared",
25 Rev. Int'l Commission of Jurists 39 (1980).
Hanf, K.: "Administrative Developments in East and West Germany: Stirrings of
Reform",21 Political Studies 35 (1973).
Linde, H. A.: "The Constitutional Supervision of the Administrative Agencies in the
Federal Republic of Germany", 53 Southern California L. Rev. 601 (1979-80).
Lorenz, D.: "The Constitutional Supervision of the Administrative Agencies in the
Federal Republic of Germany", 53 Southern California L. Rev. 543 (1979-80).
Meghen, P.J.: "Public Administration in Germany", 10 Administration 50 (1962).
Opoku, K.: "Delictual Liability in German Law", 21 In!'l & Comparative L. Q. 230
(1972).
Pakuscher, E. K.: "The Use of Discretion in German Law", 44 University of Chicago
L.Rev. 94 (1976-77); "Control of the Administration in the Federal Republic of
Germany", 21 Int'l& Comparative L. Q. 452 (1972); "Administrative Law in Ger-
many - Citizen v. State", 16 American J. of Comparative L. 309 (1968-69).
Pock, M. A.: "Systems of Public Responsibility in Switzerland, Germany, and Aus-
tria", University of Illinois L. Forum 1023 (1966).
Schneider, H.: "The Right to a Hearing in German Public Law", 8-9 Revista Del In-
stituto de Derecho Comparado 412 (1957).
Singh, M.P.: "Administrative Courts in West Germany", 8 and 9 Delhi L.Rev. 52
(1979 and 1980 published in 1983).
Ule, C. H.: "German Administrative Jurisdiction", 25 Rev. Internationale des
Sciences Administratives 173 (1959).
Subject Index

acte administratif 32 Administrative Panels 9

Administration, Administrative Powers 32-63
benefactory 69 Administrative Private-Law Acts 55-57
regulatory 69 Appeal 130-131
Administrative Act, Aufopferung(see Sacrifice)
classification of 36-37 Autonomous Legislation 27
comparison with common law 35-36
concept and meaning of 32-36 BasicLaw 158-163
conversion of 45 Beurteilungsspielraum 96, 98
curing of illegality 44 Bias 40
defective 42-44 Bismark's Reich 8
definition of 32 Bonafide Acts,
difference from legislative act 34 protection of 76
effect of 41 Byelaws 27-29
erroneous and inexpedient 43-44
form and contents of 37-38 Clarity,
notification of 40 lackof 78
revocation of 45, 46-47 Common/Joint Senate 103
validation of 44 Competence,
void and voidable 42-43 lack of 74
withdrawal of 45-46 Complaint 133
Administrative Contracts, Conseil d'Etat 3,16,106,107,140
enforcement of 54-55 Courts,
modification of 53 administrative 104-11 0
nature of 50-51 constitutional 103
rescission of 53-54 federal 102,103
void 52-53 general 103
voidable 52 in FRG 103
Administrative Court of the Empire 11 status of 106-107
Administrative Courts, cumul 146
federal 105-106
higher 105 Defects,
judges of 107 - 11 0 factual 77
jurisdiction of 112-113 legal 76-77
lower 105 substantive 76- 77
status of 106-107 Delay 143
structure of 104-106 Delegated Legislation,
Administrative Directions 19 grounds of judicial review 25, 27, 28
Administrative Guidelines 86 judicial control 24-25
Administrative Law, kinds 19-20,28-29
civil and common law systems 1-3 limitations 20-23,28
definition of 1- 3 procedural requirements 23-24,28
general and particular 2 Discretion 83
growth 8-12 abuse of 87-96
Administrative Organization 12-16 excess of 86
federal 12-13 failure to exercise 86
municipal 14-16 meaning of 83
state 13-14 reduction of, to zero 87
Subject Index 193

Discretionary Powers, Judgment,

conferment of 84 execution of 136
grounds of judicial control of 85-96 form and contents of 130
limits on conferment of 84-85 illustrative 184-187
Draft Constitution of the Empire of 1849 10 Judicial Control (also see Judicial Review),
droit administratif 1,3 of administrative acts,
Duty, grounds of 72-79
breach of 142-143 of delegated legislation 24-25
discretionary 144 direct and indirect 24
towards third party 144-145 Judicial Relief,
affirmative 119
Empire Court 149 conditions for 119-124
enteignungsgleichen Eingriff(see Quasi- declaratory 119
expropriation) interim 133-135
Equality of Treatment 94-96 mandatory 119
Evidence, Judicial Review (also see Judicial Control),
free evaluation of 127 of administrative acts,
no evidence 77 basic principles of 66-70
substantive evidence 77 basis of 65-66
Excess of Jurisdiction 65, 72 common and German law approaches
substantive 75-76 64-65
territorial 75 general principles of 64-79
Executive Legislation 20 grounds of 72-79
Exhaustion of Administrative Remedy of delegated legislation 25-27,29
123-124 Judicial State 5
Expropriation 141 Judicial System 102-104
Jurisdiction,
Fiscal Activities 56 administrative 110-112
Folgenbeseitigungsanspruch (see Remedies) conflict of 103-104
French Constitution 30 n 2 constitutional 111-112
of 1800 140 determminationof 113-114
of administrative courts 112-113
Jurisdictional Questions 64,65, 71
GeneralOrder/Direction 32
Koppelungsverbot 51, 52,62 n 3, 78
Hearing 39, 127
Holy Roman Empire of Germany 8 Law of Administrative Courts 1960 180-183
Law of Administrative Procedure 1976
164-180
Improper Purpose 92
Legislation (also see Delegated Legislation),
Indefinite Legal Concepts 96-98
autonomous 27
Information and Advice 39, 127-128
delegated 19-29
Inquisitorial Procedure 38, 125
executive 20
Inspection of Records 39
Legislative Powers 19-29
Interlocutory Orders 134
Liability (of Public Authorities),
Irrelavant Considerations 92-93
fault 140,146
for delay and non-action 143
Judges, for legislative changes 146-147
appointment of 108 for quasi-expropriation 148-149
impeachment of 107 for sacrifice 149-150
lay 109-110 for wrong information 143
oath of 109 general tort 142-147
on commission 108 limits of 147
on probation 108 scope and background 139-142
professional 108-109 Locus standi 120-122
qualifications of 108
removal of 108-109 Margin of Judgment 96, 98
supervision of 109 Morals,
term of 108 inconsistency with 77 - 78
194 Subject Index

Non-action 143 Real Acts 33, 57

Reasonableness,
Objectivity 94 principle of 88-92
Ordinances 20-27 three limbs
special ordinances 19 principle of necessity 90
principle of proportionality 90-92
Period of Limitation 124 principle of suitability 89
Plans and Planning Regulation 33
change Remedies,
continuatiOn} of Ian 62 administrative 123-124
enforcement p judical,
kinds of plans 59-60 conditions for 119-124
nature of plans 58-60 nature of 117-118
planning permission 60-61 of nullifying the consequences 151
remedy against permission 61-62 Reopening of Proceedings,
Principle of Constitutionality 66-67 administrative 47-48
Principle of Legality 68 judicial 135-136
negative legality 68 Res Judicata 49 n 48, 135
positive legality 68-70 Revision 130, 132-133
Procedure, Rule of Law 5
administrative 38-40 formal and material 5-6
disregard of 72-74
for delegated legislation 23-24,28 Sacrifice 138, 141, 146, 150
judicial 125-136 liability for 149-150
expeditious 125 Separation of Powers 6-7
in appeals 131 Social (Welfare) State 7-8
in complaints 133 Sub-delegation 27
in first instance court 128-130 Sub-judice 124
in revisions 132 Suits,
openness of 127 choiCe and presentation of 122-123
oral and direct 126 competence to pursue 120
principles of 125-128 for restitution 135
simplicity of 128 kinds of 118-119
Proportionality (also see Reasonableness),
principle of 90-92 Tribunal des Conflicts 103
Prussian Supreme Administrative Court 10,
18,88 Ultra Vires,
Public and Private Law 3-4 procedural 26-27,29,72
Public Authority 33 substantive 25-26,29,72
liability of (see liability) unbestimmter Rechtsbegriff 96-98
Public Functions 56
Public office 142, 145-146 Verhiiltnismii,Pigkeit
(see Reasonableness)
Quasi-expropriation 141
liability for 148-149 Weimar Constitution 19,140
Questions of Law and Facts 71,72 Wrong,
information 143
means 79