Administrative Law Flashcards
What is the purpose and key elements of the Administrative Procedures Act (VwVfG) in Germany?
The Administrative Procedures Act (VwVfG) governs how administrative authorities operate and interact with individuals and organizations.
- Scope of Application: Defines **applicability ** of the law.
- Administrative Assistance: Rules for cooperation between authorities and European counterparts.
- Administrative Procedure:
=> Flexible processes and fair investigation (§§ 9-25).
=> Transparency, cooperation, and file access obligations. - Time Limits and Certifications: Sets deadlines and certification rules.
- Administrative Acts: Defines binding decisions by authorities.
- Public Law Contracts: Regulates agreements between authorities and individuals/entities.
- Special Proceedings: Covers unique administrative processes (§§ 63 ff.).
What governs the decision to launch an administrative procedure under § 22 VwVfG?
- Authorities decide to start procedures based on necessity and opportunity.
- Procedures typically begin upon request unless there is a legal obligation to act.
What is the Inquisitorial Principle in administrative procedures under § 24 VwVfG?
- Authorities must thoroughly investigate the facts (inquisitorial principle).
- Obligation to Cooperate (§ 26 VwVfG):
=> Parties involved must provide necessary information and documents.
What are the Participation Rights in administrative procedures?
- Consultation and Information (§ 25 VwVfG): Parties must be consulted and informed about the procedure.
- Consultation Before Onerous Acts (§ 28 VwVfG): Parties must be consulted before burdensome decisions or sanctions are imposed.
- Obligation to State Reasons (§ 39 VwVfG): Authorities must explain the rationale behind their decisions.
- Inspection of Files and Secrecy (§§ 29-30 VwVfG):
- Parties can access relevant files.
- Confidentiality is maintained for sensitive information.
What do the General Principles of Administrative Procedure ensure?
They ensure fairness, transparency, and a balance between legal authority and individual rights.
What is the definition of an Administrative Act under § 35 VwVfG?
An administrative act is an order, decision, or action by a public authority addressing a specific case under public law, with direct legal effects on individuals or groups.
What are the types of Administrative Acts under § 35 VwVfG?
- Individual Order (Einzelverfügung): Decision for a specific person or case (e.g., a parking fine).
- General Order (Allgemeinverfügung): Decision for a group based on shared traits (e.g., traffic speed limits).
How are administrative acts classified by their effects?
- Advantageous: Grants benefits (e.g., subsidies).
- Disadvantageous/Onerous: Imposes burdens (e.g., fines).
- Double Effect: Affects both the recipient and third parties (e.g., granting a competitor a license).
What are the 3 legal features of administrative acts?
-
Validity:
=> External Validity: Takes effect once announced (§§ 3a, 41 VwVfG).
=> Internal Validity: Creates legal obligations and time limits (§ 43 VwVfG). - Legality: Must meet all formal and substantive legal requirements.
- Constancy (Bestandskraft): Becomes enforceable once valid and uncontested, even during appeals.
What are the 5 prerequisites (Voraussetzungen) for the legality of an administrative act?
Legal Basis: Must be authorized by valid law, particularly for burdensome decisions.
- Compliance with the Law:
- Formal: Correct authority, procedures and justification
- Material: Meets substantive legal requirements.
- No Discretionary Errors: Stays within legal limits and fulfills its purpose.
- Proportionality: Balances objectives and means, avoiding undue burdens.
- Executability: Must be legally and practically enforceable.
What are the consequences of illegality in an administrative act?
-
Invalidity: Serious and obvious errors may render the act invalid.
=> Reinterpretation (§§ 44, 47 VwVfG): Can correct errors. - Formal Errors: Minor errors may not affect substance and can often be corrected (§§ 42, 45, 46 VwVfG).
-
Repeal (§§ 48-49 VwVfG):
=> Acts can be repealed (aufgehoben) post-legal challenge.
=> Only illegal parts may be repealed if divisible. - Extension of Time Limits (§ 58(2) VwGO): Incorrect appeal instructions extend filing time.
- New Grounds (§ 114 VwGO): Additional arguments can be introduced during proceedings.
How is the legality of an administrative act determined over time?
- Legality is typically determined at the time of the last official decision.
- For acts with permanent effects, legality may depend on the date of oral proceedings, with exceptions (e.g., bans based on unreliability).
How do mechanisms ensure fairness and accountability in administrative acts despite errors?
- Legal, procedural, and substantive standards ensure fairness and proportionality.
- Errors in form or discretion may render acts invalid but can often be corrected or reinterpreted.
What are Real Acts (Realakte) and how do they differ from administrative acts?
- Real acts are factual actions taken by public authorities, distinct from formal administrative acts (Verwaltungsakte).
- They do not follow the formal process but can still have legal consequences.
Distinction:
=> Administrative Act: Formal decisions (e.g., denying a permit, imposing fines).
=> Real Act: Factual, non-binding actions (e.g., routine police patrols, refusal to respond to inquiries).
Can Real Acts have legal effects? Provide examples.
Yes, real acts can have legal consequences despite being informal
Examples:
- Public warnings.
- Informal agreements or consultations for projects.
- Fulfilling procedural rights, such as the right to be heard through discussions.
