Germany

Question 1

What is an ‘Administrative Act’ and where is it defined?

Answer 1

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

Question 2

What different Administrative Acts are there in Germany?

Answer 2

Individual concrete or abstract cases: §35(1).
General concrete cases: §35(2).
General abstract cases: not admin act = statutory order or by-laws.

Question 3

Explain the principle of ‘legitimate expectations’ and where is it found?

Answer 3

Admin act cannot be withdrawn if it (i) grants a benefit, (ii) the beneficiary has relied on its continuance, and (iii) no overriding public interest.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.

Question 4

What are the requirements for a measure to be proportional? Where is it found?

Answer 4

(0) there’s an aim, (i) suitability to achieve aim, (ii) necessary (least intrusive means), (iii) weight of public interest vs. private interest.

Question 5

What is a Court competent to rule on?

Answer 5

Public law disputes, §40 ACA

Question 6

Which Court is competent to hear a claim?

Answer 6

Administrative courts are, in first instance, competent to hear a claim, according to §§2 and 45 ACA.

Question 7

What are the possible litigations?

Answer 7

(i) Action to annul and (ii) action to compel, §42(1) ACA.

Question 8

Explain the first litigation

Answer 8

An action to annul is used to annul a measure.

Question 9

Explain the second litigation

Answer 9

An action to compel is used to order the Administration to carry out a duty.

Question 10

Is an objection necessary?

Answer 10

Yes, §68(1), procedure in §70

Question 11

What is the time limit?

Answer 11

§74(1)ACP 4 weeks

Question 12

How does one establish standing?

Answer 12

Infringement of rights by the measure, §42(2) ACP and Art. 19(4) Basic Law

Question 13

How does a third party establish standing?

Answer 13

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?

Question 14

How does an association establish standing?

Answer 14

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)

Question 15

Is there a suspensory effect or an interim measure for actions to annul or compel?

Answer 15

To annul: yes, suspensory effect §80 ACP –> speed is essential not to cause extra damages.
To compel: no, but interim measure under §123 ACP

Question 16

What can the applicant do in case of inaction from the Administration?

Answer 16

Exception of §68, no objection necessary after 3 months of inaction, §75 ACP.

Question 17

What are the possible outcomes for §42(1)?

Answer 17

Measured annulled or order for the Admin to carry out a duty

Question 18

Can the judge investigate ex officio?

Answer 18

Yes, wide powers for this, under §86 ACP

Question 19

Can the judge impose remedies ex officio?

Answer 19

No, the Court cannot go beyond remedy sought by the parties, §88 ACP.