Germany Flashcards
What is an ‘Administrative Act’ and where is it defined?
Administrative act: (i) unilateral measure, (ii) issued by the administration, (iii) regulates, (iv) individual cases, (v) direct external legal effect. It’s found at §35 APC
What different Administrative Acts are there in Germany?
Individual concrete or abstract cases: §35(1).
General concrete cases: §35(2).
General abstract cases: not admin act = statutory order or by-laws.
Explain the principle of ‘legitimate expectations’ and where is it found?
Admin act cannot be withdrawn if it (i) grants a benefit, (ii) the beneficiary has relied on its continuance, and (iii) no overriding public interest. Found in §48(2) APC, exception §48(2)(1-3) ACP.
What are the requirements for a measure to be proportional? Where is it found?
(0) there’s an aim, (i) suitability to achieve aim, (ii) necessary (least intrusive means), (iii) weight of public interest vs. private interest.
What is a Court competent to rule on?
Public law disputes, §40 ACA
Which Court is competent to hear a claim?
Administrative courts are, in first instance, competent to hear a claim, according to §§2 and 45 ACA.
What are the possible litigations?
(i) Action to annul and (ii) action to compel, §42(1) ACA.
Explain the first litigation
An action to annul is used to annul a measure.
Explain the second litigation
An action to compel is used to order the Administration to carry out a duty.
Is an objection necessary?
Yes, §68(1), procedure in §70
What is the time limit?
§74(1)ACP 4 weeks
How does one establish standing?
Infringement of rights by the measure, §42(2) ACP and Art. 19(4) Basic Law
How does a third party establish standing?
Schutznorm principle:
(i) is there a provision which intends to protect rights? ((a) wording, (b) purpose, (c) legislative history/records)
(ii) is the claimant holder of the right?
How does an association establish standing?
Schutznorm principle:
(i) is there a provision which intends to protect rights? ((a) wording, (b) purpose, (c) legislative history/records)
(ii) is the claimant holder of the right? (problematic)
Is there a suspensory effect or an interim measure for actions to annul or compel?
To annul: yes, suspensory effect §80 ACP –> speed is essential not to cause extra damages.
To compel: no, but interim measure under §123 ACP
What can the applicant do in case of inaction from the Administration?
Exception of §68, no objection necessary after 3 months of inaction, §75 ACP.
What are the possible outcomes for §42(1)?
Measured annulled or order for the Admin to carry out a duty
Can the judge investigate ex officio?
Yes, wide powers for this, under §86 ACP
Can the judge impose remedies ex officio?
No, the Court cannot go beyond remedy sought by the parties, §88 ACP.
