German Administrative Acts: Administrative Procedure Act & Art. 35

Germany — Administrative Acts

Regulated in the Administrative Procedure Act / decision 1976: the most frequent form of action to regulate a single or individual case by the administration.

Legal framework and institutional roles

Each of the 16 states has its own administrative procedure. If state procedures conflict with federal rules, the federal law prevails.

Separation of powers:

• Legislative — passes the law.
• Executive — issues rules and decisions.
• Judiciary — applies and interprets the law.

Art. 35 — Definition of administrative act

Art. 35: An administrative act is every decision taken by a public authority to regulate a particular (individual) case within the sphere of public law.

Act = action; an administrative act is not a law.

Effects of an administrative act

Presumption of validity

Administrative decisions are presumed valid. This presumption holds unless a citizen proves otherwise, typically by initiating judicial review.

Enforceability

Every administrative decision is enforceable per se: there is no need to obtain a judicial order to execute the decision. The administration may directly enforce the act without resorting to the courts.

Example: occupying an expropriated plot of land.

Reviewability

Administrative acts can be challenged. There are two principal review routes:

• Administrative review — review before the administration itself.
• Judicial review — review before the courts.

Classifications by subject matter

Kinds of administrative decisions according to subject matter:

• 1. Commanding acts: Acts that prohibit or limit a specific behavior.
  • Examples: traffic signal; asking for your ID.
  • a. Consequence: beneficial acts (positive) — e.g., receiving a scholarship; issuance of a license.
  • b. Degree of administrative freedom: discretionary acts — when the administration has several legal options, it may choose among them.
    • Examples: presidential pardon; appointment of ministers.
• 2. Structuring acts: Acts that remove or change your legal status and establish a new one.
  • Examples: when you get married; when you change your name.
  • a. Consequence: burdening acts (negative) — e.g., receiving a fine or sanction.
• 3. Declaratory acts: Acts that declare a previous situation or provide an official recognition.
  • Example: issuance of a passport.
  • a. Consequence: mixed acts — beneficial acts that are subject to conditions; the authority can grant a right but require certain conditions or requirements.
  • b. Degree of administrative freedom: non-discretionary acts — when the administration has only one legal choice and must apply it. Such acts must be established, prescribed, or regulated by law and provide legal certainty.