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Entire summary for Germany (Comparative Admin. Law)
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GERMANYAdministrative Act
Concept and meaning of administrative act
- An authoritative pronouncement of the administration which in an individual case
determines the rights of a subject (Otto Mayer).
- It is only against administrative acts that an action for rescission or for mandatory
injunction can be taken in the administrative courts!
- §35 of the Administrative Procedure Act (see Annex 1).
Classification of Administrative Acts
According to the Subject- According to the According to the Legal Limits
Matter Consequences on the Administrator
A commanding administrative A beneficial act establishes, A non-discretionary act is one
act consists of commands or upholds or confirms a legal or which can be taken or not taken
prohibitions and compels a legally important advantage only if the conditions laid down
define behaviour - E.g. grant of a fellowship or in the law exist
- E.g. police directions or permission to construct a
traffic signs house
A structuring act establishes, An injurious act causes a A discretionary act is one with
changes or removes a disadvantage to the affected respect to which the law leaves
concrete legal relationship person either by interfering the discretion to the
- E.g. naturalisation of a with his rights or by rejecting a administrator
person, appointment to a request for some favour or
post or conferment of benefit
graduation - E.g. denial of a grant or
dismissal from a job.
- All commanding or
prohibiting acts!
A declaratory act declares a An administrative act Free acts are those which are
legally important attribute of affecting third parties → an not bound by any statutory
a person (such as declaration administrative act which also conditions.
of citizenship) or of monetary affects persons other than those
help (such as scholarship or to whom it is addressed
subvention)
Form, Contents, and Procedure of an Administrative Act
Form and contents
- §37(2)-(4) APA → an administrative act may be expressed or issued in any form,
subject to the requirement of any specific form laid down in any law.
- §37(1) APA → the contents of an administrative act must be sufficiently definite.
Particularly, they must be unambiguous about the person to whom they are
addressed, the subject-matter of regulation, and the legal consequences.
- §39(1) APA → every administrative act issued or confirmed in writing must contain
written reasons.
§39(2) APA → exceptions!
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