Mahendra P. Singh

German Administrative Law In Common Law Perspective

Springer-Verlag Berlin Heidelberg GmbH

M. P. Singh, Professor of Law Faculty of Law, University of Delhi Delhi 110007, India

This publication is supported by the Alexander von Humboldt-Stiftung, Bonn

ISBN 978-3-662-02459-1

Library of Congress Cataloging in Publication Data Singh. Mahendra Pal, 1940-German administrative law in common law perspective. Bibliography: p. Includes index. l.Administrative law-Germany (West) I. Title. KK5580.S561985 342.43'06 85-14865

ISBN 978-3-662-02459-1 ISBN 978-3-662-02457-7 (eBook)

DOI 10.1007/978-3-662-02457-7

This work is subject to copyright. All rights are reserved, whether the whole or part of the material is concerned, specifically those of translation, reprinting, re-use of illustrations, broadcasting, reproduction by photocopying machine or similar means, and storage in data banks. Under § 54 of the German Copyright Law where copies are made for other than private use, a fee is payable to "Verwertungsgesellschaft Wort," Munich. © by Springer-Verlag Berlin Heidelberg 1985

Originally published by Springer-Verlag Berlin Heidelberg New York Tokyo in 1985

Softcover reprint of the hardcover I st edition 1985

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To Bhabhi

Foreword

It is with the greatest pleasure that I add a few introductory remarks to the book of Dr. Mahendra Pal Singh on German administrative law.

Between 1981 and 1982 Dr. Singh spent nearly two years in Heidelberg, doing re­search partly at the South Asia Institute of the Ruprecht Karl University and partly at the Max Planck Institute for Comparative Public Law and International Law. During his stay in the Federal Republic of Germany, Dr. Singh studied the general principles of German administrative law in a careful and admirable manner, and he has now completed the present book which is based on his studies in Heidelberg. For several reasons Dr. Singh is especially qualified to write this book: His famil­iarity with the administrative law of his home country has enabled him to look upon the German law with considerable objectivity; his knowledge of the German lan­guage gave him access to the vast amount of German literature and court decisions; and Dr. Singh was able to penetrate this material with a searching and scholarly spirit. The final product seems to be the first comprehensive treatise in English on German administrative law.

German administrative law has many peculiarities which are unknown or at least unusual in common law countries. Influenced at the turn of the century by French administrative law, the general rules and principles of administrative law have been developed mainly in learned writings and in court decisions. Mter the second world war, the German system of administrative courts developed in a most comprehen­sive manner. All decisions of administrative authorities affecting individual rights can be challenged in courts; this is guaranteed by the Federal Constitution, Art. 19 (4) of the German Basic Law. Three levels of administrative courts have been insti­tuted and they are handling thousands of cases every year. Important branches of administrative law, developed over decades without formal legislation, have in re­cent time progressively been codified. The most important of these laws is the code on administrative procedures (Verwaltungsverfahrensgesetz) enacted in 1976.

Dr. Singh's work affords an excellent description of German administrative law. It is hoped that it will be studied by scholars, students and practioners in many English speaking countries.

Rudolf Bernhardt Director, Max Planck Institute for Comparative Public Law and Inter­national Law Professor at the University of Heidelberg Judge at the European Court of Human Rights

Introduction

If the life of the law, in the words of Oliver Wendell Holmes, has not been logic but experience1, the complementary truth may be asserted with equal justification: it is experience itself which in turn seems to show the remarkable power of logical ten­dencies, of imperatives of consistency and rational response, operating in the evolu­tion of the law and likely in the long run to produce, even in different legal cultures, comparable solutions to like problems from certain shared major premises. This may be so in spite of the most colourful dissimilarities of historical and technical background - law's 'form and machinery', as Holmes would call it in contrast to its 'substance'. That there should be so much eventual convergence in substance some­times may come as a surprise to the lawyer trained in a particular form and machin­ery of the law. But there is an inherent logic in human institutions which tends to make itself felt against the limitations of particular legal traditions.

No better illustration of this may perhaps be found than the development of the English administrative law as compared with its counterparts on the European con­tinent, and the more recent rapprochement between the two systems. Hardly could there have been a greater antagonism in general outlook as well as in technical ap­proach than it appeared in the initial position of French administrative justice (which set the pattern for most Civil Law countries) and, in contrast, the Common Law: on one side, the French dislike of courts' interference in public administra­tion, re-inforced by the Revolution's apprehension of conservative obstruction by courts protecting vested interests; in consequence, development of legal remedies only in a framework of inner-administrative, 'quasi-judicial' control primarily in the public interest. On the other side: the undisputed strong position of ordinary courts in England since the Glorious Revolution, and their armoury of prerogative writs; likewise, the common lawyer's distrust against anything reminiscent of the old Pre­rogative Courts and notably the Star Chamber. Whatever the true import of this lat­ter attitude it had a least been so eloquently expressed by A. V. Dicey in his famous critique of French droit administratij2, and had been pushed into the foreground with such dogmatic persuasiveness as to obscure the issue of administrative law in England for some time to come. Dicey had been led to virtually equate the Rule of Law with the all-comprehensive jurisdiction of ordinary courts and the absence of any specific body of administrative law. On the opposite side the French had ratio­nalized their practical option with a hardly less unfortunate version of the Separa­tion of Powers doctrine.

The relevance of this fundamental, and to some extent imaginary, opposition in

1 Holmes O. w.: The Common Law, 1 (quoted from the 43d printing, 1949). 2 Dicey A. Y.: Introduction to the Study o/the Lawo/the Constitution, 183 et seqq. (10th ed., 1959);

for repeated reference to the Star Chamber in this context see at 371 et seqq.

x Introduction

outlook has by now become a matter of the past; so have the ideological overtones of the debate. Today it is commonplace to acknowledge that French law has built up, from within the administration, a veritable system of courts exercising effective and independent control. English law, on the other hand, has moved to a fully con­scious recognition of the special powers in fact bestowed on public officials and the necessity, in consequence, of special public law remedies for the citizens' adequate protection.3 The technicalities of the law, no doubt, still reflect the differences of historical lineage and still shape, occasionally even tend to obscure, the perception of common problems. Yet after inordinate delay, the substantial truth has by now emerged on both sides, namely: that one cannot have a modern public administra­tion and still preserve the rule of law without evolving administrative law in the full sense including judicial control by whatever name it may be called.

Gradually realizing this truth as a dictate of consistency the two great systems of law have become more realistically aware of each other and have become capable of a dialogue. This dialogue has, in fact, already begun and moved from academic enclaves to practical encounter, e. g., in the European Community institutions or the European Human Rights Commission and Court. An instance reflecting the changed relationship, and the convergence referred to, may be found in a recent dic­tum by Lord Diplock in a decision by the House of Lords:4 after summarizing the three established grounds for judicial review of administrative action in England he goes on to contemplate, as a conceivable addition to the list, "the possible adoption in the future of the principle of 'proportionality' which is recognized in the adminis­trative law of several of our fellow members of the European Economic Communi­ty."5

In an era of more practical exchange the sweep of comparative discussion broadens and besides the traditional protagonists new participants may enter the arena. A study of German administrative law coming from an Indian jurist at this juncture is a welcome addition on more than one account. Quite naturally countries hitherto under the undisputed sway of one or the other of the European models would usefully partake in the common stocktaking, since in extra-European cul­tures the adequacy oflegal solutions transplanted from a foreign milieu would have to be tested against an entirely different set of social circumstances. A real contribu­tion, therefore, may be expected from that side in the effort of re-assessing the true relevance of time-honoured concepts. And it is in the fitness of things, conversely, that these countries make use of their new independence to benefit from the broad­ening vista for their own, original choices. Thus it is a particular attraction of the book introduced here that it views not merely German law in Common Law per­spective but at the same time Common Law in Indian perspective. An attentive reader would not fail to notice how this has enriched the presentation. One particu­lar instance is to be mentioned later on.

3 In ch. 8 at 117 below attention is rightly drawn to the distinction between private law remedies and public law remedies (so-called extra-ordinary remedies) in common law. It is significant that Di­cey in his criticism of the droit administratifcompletely ignored the writ of certiorari and all it im­plied in contemporary English administrative law.

4 Council of Civil Service Unions v. Minister for the Civil Service, [1985) A. C. 374 seqq., 410. 5 See the discussion of that principle in ch.6 p. 88 below.

Introduction. XI

On the other hand, in the context of pragmatical objectives a certain shift of in­terest may take place from the consideration of extreme positions towards a wider range of intermediate solutions. As long as the issue appeared to be a categorical opposition of principles the attention of the common law jurist, if at all diverted to the strange formations of Continental European laws, almost exclusively centered on the French droit administratif. It had the heuristic value of presenting the oppo­site principle in ideal type, especially if one looked, as Dicey did, to its initial stages rather than to its developed form. Today a structure like German administrative law which in its historical growth integrated alternating influences of French and English legal culture, may present a peculiar interest for comparative study. Being itself to some extent a product of comparative experience it would seem to testify to the possibilities of selective learning rather than the stale alternative between full conversion or wholesale rejection.

The development of German administrative law, too, had commenced with the unmitigated confrontation of the two conflicting principles. After a phase of justice administrative on French lines in the early 19th century the National Constituent Assembly at Frankfurt in 1848 had categorically decreed the end of that practice and attempted to establish unrestricted control by 'the' courts of law in the ortho­dox liberal tradition.6 The lasting solution, nevertheless, which was worked out from the sixties onwards, was to be a combination of the two approaches: judicial control by independent courts which, however, remained separate from the ordi­nary courts and were manned by judges experienced in administrative work. More­over in a blend of French tradition with ideas derived, significantly, from English administrative law through v. Gneist's comparative studies, the lower administrative 'courts' were structured rather as a kind of administrative tribunals, with the one fully independent court at the top mainly exercising powers of revision. Again, the substantive law applied and developed by these courts owed much to French doc­trine as analized and adapted by German textbook writers. The latest stage, after 1945, has been the complete separation of all administrative courts from the admin­istration also, and their establishment as fully independent courts with universal ad­ministrative jurisdiction, ordinary administrative courts as it were. This final step could ironically be viewed as a move from actual English patterns (as observed by Gneist) closer to Dicey's ideals. In any case it represents a genuine answer, under Continental preconditions, to his problem of formal Rule of Law.

As for the material aspects of Rule of Law the central issue has always been the degree of effective legal control imposed on the exercise of governmental powers. In this respect major differences still persist, and they are significantly related to the legal technicalities in the genesis of judicial control. Thus the use of the writ of cer­tiorari by English courts has tended to induce certain limitations on substantive re­view which are absent from Continental law. It first of all involved a classification of administrative authorities as inferior courts or tribunals in order to make them amenable to the writ. This in tum implied treating their powers as a kind of jurisdic­tion and thus according them a power to err even in questions of law. Further it led

6 See p. 10 below for the text of the provision which was formally enacted by the National Assem­bly in its Law on the Fundamental Rights of the German People of27 December 1848, and subse­quently became part of the German Draft Constitution of 1849.

XII Introduction

to confining judicial review to cases where the administrator appeared to be under a specific duty to act 'judicially' - a duty which might be found to be non-existent on 'purely administrative' functions or in determinations involving 'privileges' rather than 'rights'. Marked inroads have, no doubt, been made into these limitations in more recent time. Since Ridge v. s. Baldwin7 there seems to appear a clear tendency to dispense with artificial distinctions of judicial, quasi-judicial and administrative acts and to extend the scope of review accordingly. Likewise, English courts have shown an increasing inclination to treat errors in law as errors affecting jurisdiction, and thereby to make all questions of law reviewable. But these processes have not advanced uniformly, and it may still be relevant to compare the different approach of Continental, or for that matter, of German law. Here the very definition of ad­ministrative acts bears a close resemblance to what is termed judicial or quasi-judi­cial act in English law.8 This being the basic form of administrative orders there is, in other words, no room for a further category of 'purely administrative' acts (in the English sense) which might be substantially immune to judicial review. Secondly, classification of a question as one of law would in itself be sufficient to make that question fully reviewable by the courts. It is considered a logical corollary of the rule of law in its aspect as legality of state action that there can be no permissible administrative power or 'jurisdiction' to misapply the law. This is carried to the point that many questions which under English law would be considered as discre­tionary in nature are treated simply as questions of correct application of law by the German courts and are, therefore, fully reviewable.9

The other, and perhaps most serious, limitation of English review proceedings in Continental eyes is the reluctance to go into disputed questions of fact. In partic­ular, the 'no evidence' rule followed by English (and Indian) courts would seem to considerably widen the scope of administrative discretion. German courts would treat such factual questions as fully reviewable conditions precedent to a discretion­ary policy decision. Full inquiry into the factual position had been a natural feature of inner-administrative review in Germany, and it has been retained when the re­view boards were transformed into courts of law.

If German law, then, appears to impose a stricter and more thoroughgoing sub­stantive control on administrative powers, there has been a certain neglect of pro­cedural safeguards for some time. The concept of natural justice is absent, and the questions of hearing which have engaged so much attention of the common law courts, have not figured prominently in German case law. The obvious reason is that the possibility of an effective scrutiny of the decision on its merits will in many cases reduce the relevance of procedural safeguards. On the contrary, the German lawyer will be inclined to ask whether the value of the right to a hearing is not over­rated so long as the administration remains at liberty, after the hearing, to do what­ever it pleases. This assessment, of course, must be owned to be superficial. German law has by now come to realize the necessity of devoting more attention to ques­tions of procedure. The recent passing of laws on administrative procedure bears testimony to this change of attitude. Procedural safeguards are important wherever

7 [1964] A.C. 40. 8 See the discussion below ch. 3 p.35. 9 See the discussion of Indefinite Legal Concepts below ch. 6, part C, p.96 et seqq.

Introduction XIII

substantive control does not work - for instance, when it would come too late; this has notably been recognized in the area of planning, where procedural require­ments of timely hearing have been introduced at an early stage. Similarly require­ments of hearing may be indispensable in cases of irreducible discretion of the ad­ministrative authority. In this context it has to be noted that there is a growing ten­dency, though with marked reluctance on the part of the courts, to recognize discre­tionary elements even in the application of indefinite legal concepts, to accord a 'margin of appreciation' to the administrative authority in certain cases. This is rem­iniscent of the English concept of 'jurisdiction' and, again, would testify to the recurrence of structurally related problems in different legal orders. It would also entail, as a balancing element, greater emphasis on correct and fair procedure. Gen­erally requirements of procedure are now perceived more clearly in this function as complementary safeguards corresponding to the greater or lesser effectiveness of substantive control.

One can see the two systems moving in opposite though convergent directions: one setting out from substantive control and gradually introducing more procedural safeguards, in the structure of administrative courts as well as in administrative procedure; the other starting from strict formal, if comparatively loose substantive requirements and gradually intensifying its control in matters of substantive law. This leads to the questions of true rationales, leaving aside the historical contingen­cies of origin: where all the emphasis is put on making already the first decision of the administrative authority a just and fair one, the utmost scrupulosity will have to be bestowed on procedural safeguards; judicial control then may be restricted to a final review of legality by one top level court. This is the approach developed by the English, but also on the Continent, e. g., by the Austrian system. Where such confi­dence in the general legality and fairness of administrative action is not considered a sufficient guarantee, where the need, for instance, is strongly felt to foreclose ave­nues of corruption (including party politicsl~ likely to be opened by broad discre­tionary powers, a case may be made for more strict and substantive control on French and German lines.

A somewhat surprising development may finally be noted. Whereas German law following the French example initially proceeded from a strong emphasis on the public function oflegality control within the administration it has now moved to a position stressing the protection of individual rights through court proceedings. This has led to a relatively conservative attitude of the courts in matters of standing which can hardly be considered as commensurate with the exigencies of modern so­ciety. Marking off legally protected from other affected interests is becoming an in­creasingly difficult and arbitrary affair in an age where in many spheres individual administrative decisions have widespread repercussions on the public. It is interest­ing to observe that the common law has shown more flexibility in this respect. This may be due to the public law origin of prerogative orders or writs. The most spectac­ular use of this potential has recently been made by the Indian Supreme Court in its liberal admission of public interest litigation.tt To take note of such developments

10 This was a consideration weighing heavily with Gneist when he advocated his reform scheme of administrative courts.

11 See ch. 8 p. 122 below.

XIV Introduction

would not only have paradigmatical value for German administrative courts. It could also help them to recover a most legitimate aspect of public interest orienta­tion rooted in their past traditions. For the true province of administrative law has been the homology of individual and public interest in upholding the rule of law.

If some such reflections as may be provoked by this book have been indicated here at some length the intention was not to preempt the reader's attention but to in­vite him to a fascinating study. In putting this down, the present writer takes pride in having on his part instigated the author to this venture when we first met in the Del­hi Law Faculty in winter 1978179, and would like to record his admiration for the way in which he has mastered the difficult task.

Dietrich Conrad

Dr. jur., MeL (Ann Arbor) South Asia Institute University of Heidelberg

Prefatory Note

The following pages are the outcome of my nearly two years' stay at Heidelberg as Alexander von Humboldt research fellow. Submission of a research project of my choice was a condition precedent for the grant of fellowship. Being a student of ad­ministrative law I was naturally curious to learn something about German adminis­trative law. On the basis of very scanty and scattered literature on German adminis­trative law in English I could, however, submit only a somewhat vague project covering generally the legal control of government in Germany. Mter the grant of fellowship and acquisition of some proficiency in the language, when I went through the original source materials I came across so many fascinating aspects -much more fascinating than I could imagine - of German administrative law that I thought a systematic presentation of some of them will make interesting and useful reading to an English-speaking lawyer. That is the genesis of this work.

This is not a comparative work in any strict sense. Primarily it is a systematic presentation from the point of view of a common lawyer of those aspects of Ger­man administrative law which will interest him most. It is only to rejuvenate his in­terest that at places reference to the common-law position has been made. The ex­pression 'common law' has been used to denote that system of law which is tradi­tionally distinguished from the civil law system. Being aware of the fact that a clear cut distinction between the common and civil law systems may not be acceptable to­day and that even among the so-called common-law countries administrative law widely differs in its details, I have confined myself to British and Indian positions -assuming that the latter essentially follows the former - and only rarely have re­ferred to the position in the United States or in any other country.

The title may create an impression that this work either deals with the law of un­divided Germany or of both parts of it. In fact it deals only with the law as it oper­ates in what is now the Federal Republic of Germany or West Germany. The crea­tion of the Federal Republic of Germany, however, is recent while most of its laws and legal institutions can be traced back centuries. To say that they are peculiarly and exclusively West German may not be true. Therefore unless it was absolutely necessary I have avoided the prefix 'West' with Germany or German.

I hope these explanations make the task of the reader simpler.

Faculty of Law, University of Delhi M. P. Singh

August 1985

Acknowledgements

Many individuals and institutions have helped me in the planning and execution of this work. It is not possible for me either to mention them all or to record their con­tribution adequately. I therefore express my sincere gratitude to every one of them for all they have done for this work. The contribution of some, however, is so great that I cannot help but disclose their identity, even though the limitations of lan­guage and space prevent me from expressing even a fraction of what this work owes to them.

The work could never have been conceived but for a fellowship from the Alex­ander von Humboldt Foundation, first to learn the German language at Freiburg and then to conduct research at Heidelberg. The Foundation was both generous and prompt in extending help - whether in prolonging the fellowship, in making grants for books, travel, and the publication of this work, or in other ways. However, the Foundation would have remained unknown to me had Dr. D. Conrad of the South Asia Institute, Heidelberg, not told me of it. I am reminded of the couplet of the saint-poet Kabir where he tells that if both God and Guru appear before him he would give precedence to the latter because it is the latter who has revealed to him the existence of the former. However much I try, the contribution of Dr. Conrad cannot be expressed in words: his interest, help, and encouragement from his initial suggestion to undertake this study through to its finalization make the work as much his as mine.

Equally significant is the contribution of Professor Dr. R. Bernhardt, Director, Max Planck Institute for Comparative Public Law and International Law, Heidel­berg, who was my host professor. Professor Bernhardt was always extremely gen­erous and kind. He provided me evtl,ry possible research facility at the Institute, guided my work, went through the draft, made valuable suggestions and comments, and helped me with many contacts. I wish to express my special thanks to Professor Bernhardt for honouring my work by kindly writing the Foreword.

Professor Dr. E. Schmidt-Assmann of the Faculty of Law, University of Heidel­berg, was exceptionally kind and encouraging. He suggested the most appropriate readings, went through the draft, gave valuable suggestions, and to keep me in­formed about the latest developments in German administrative law after my return to India he made the NVwZ regularly available to me through the publisher -C.H.Beck-Verlag. Professor Dr. J.Abr.Frowein, Director, Max Planck Institute, Heidelberg, always welcomed any discussion on the subject and after going through the draft suggested, inter alia, the inclusion of discussion on indefinite legal con­cepts. Professor J. F. Garner (Emeritus), University of Nottingham afforded me the opportunity of discussing and clarifying some of the difficult and unclear aspects of English law.

Judge Dr. J. Bornkamm, his lawyer wife Nikola, and little son Paul provided me

XVIII Acknowledgements

the much-needed family atmosphere at Freiburg and introduced me to some promi­nent lawyers, judges, and academicians including Privatdozent and judge Dr. H. Goerlich with whom I could discuss the basic concepts for hours and who, apart from doing me many other favours, read the draft and commented on it exten­sively. Judges Dr. A.Jannasch and Dr. B.Schlueter gave me access respectively to the administrative court, Freiburg and to the higher administrative court, Mann­heim.

Dr. J. Schwietzke, Director ofthe Library, Max Planck Institute, and all his col­leagues gave me every possible help in tracing and making available any required book or document.

The University of Delhi was generous in granting me leave. Professor P. K. Tri­pathi put his office at my disposal when I urgently needed a place to sit and work. Professor U. Baxi read the draft and made many suggestions, corrections, and im­provements. Professor K. Ponnuswami read and corrected some parts of the draft. P. P. Singh and I. S. Ishar read and corrected the final draft and made some useful suggestions.

Bhabhi, to whom I dedicate this work, has always provided willing cooperation and support and makes any sacrifice to enable me to pursue my goals. Sandhya, Shailendra and Swati have always cooperated by giving priority to my work over their even most reasonable and just demands on the time that should have been theirs.

Finally, I express my thanks to the Springer-Verlag for undertaking the publica­tion of this work and for executing it so well.

August 1985 M. P. Singh

Contents

Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . XXIII

Part I. Introductory

Chapter 1. Nature, Scope, and Growth of German Administrative Law 1

A. Nature and Scope . . . . . . . . ..

B. Salient Features . . . . . . . . . . . 1. Separate Administrative Courts . . . . . . . . . . . 2. Public and Private Law Dichotomy . . . . . . . . 3. The Rule of Law (Rechtsstaat) ........... . 4. Separation of Powers . . . . . . . . . . . . . . . . . 5. Social (Welfare) State (Sozialstaat) ..

C. Growth: Historical Developments .

D. Administrative Organization . . . . 1. Federal Administration. . . . . . . . 2. State (Land) Administration 3. Municipal Administration . .

References . . . . . . . . . . . . . .

Part II. Powers and Functions of Administrative Authorities

1

3 3 3 5 6 7

8

12 12 13 14

16

Chapter 2. Legislative Powers: Delegated Legislation . . . . . . . . . . . . .. 19

A. General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 19

B. Executive Legislation: Ordinances (Rechtsverordnungen). . . . . . . . . .. 20

1. Constitutional Limitations ... . .... 20 2. Procedural Requirements ......................... . 3. Judicial Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4. Grounds of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . 5. Sub-delegation of Ordinance-Making Power ........ .

C. Autonomous Legislation: Byelaws (Satzungen) .. 1. Constitutional Limitations . . . . . . . . . . . .

23 24 25 27

27 28

XX Contents

2. Procedural Requirements 28 3. Judicial Control . . 28

D. Concluding Remarks . . . . 29

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 30

Chapter 3. Administrative Powers: Administrative Act 32

1. Concept and Meaning of Administrative Act . . . 32 2. Classification of Administrative Acts . . . . . . . 36 3. Form, Contents, and Procedure of an Administrative Act 37 4. Effect of an Administrative Act .. . . . . 41 5. Defective Administrative Acts . . . . . . . . . . . . 42 .6. Validation of Illegal Administrative Acts . . . . . . 44 7. Withdrawal and Revocation of Administrative Acts 45 8. Reopening of Proceedings 47

References . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Chapter 4. Administrative Powers: Contracts, Private-Law Acts, Real Acts, and Planning ............... 50

A. Administrative Contracts . . . . . . . 50 1. Nature of Administrative Contracts 50 2. Requirement of Legality . . . . . . 51 3. Void Contracts .................... 52 4. Modification and Rescission of Administrative Contracts . 53 5. Enforcement of Contracts . . 54

B. Administrative Private-Law Acts 55

C. Administrative Real Acts 57

D. Plans and Planning .. 58 1. Nature of Planning . . 58 2. Planning Permission . 60 3. Remedy Against Planning Permission. 61

References . . . . . . . . . . . . . . . . . . . . . 62

Part III. Judicial Control of Administrative Powers

Chapter 5. General Principles of Judicial Review. . . . . . . . . . . .. 64

1. The Common Law and German Law Approaches: An OverView ............ 64

2. Basis of Judicial Review .. . . . . 65 3. Basic Principles of Judicial Review 66

Contents XXI

4. Scope of Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . .. 71 5. Grounds of Judicial Control . . . . . . . . . . . . . . . . . . . . . . . .. 72

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 79

Chapter 6. Judicial Review of Discretionary Powers . . .

A. Constitutional Limitations ... B. Grounds of Judicial Control ..

1. Excess of Discretion ..... 2. Abuse of Discretion. . . . . .

C. Indefinite Legal Concepts. . .

References . . . . . . . . . . . . .

Part IV. Administrative Courts and Judicial Remedies

Chapter 7. Administrative Courts

83

84 85 86 87

96

98

..... 102

1. GennanJudiciai System . . . .......... 102 2. Administrative Courts .. . . . . . . . . . . . . . . . . . . . . . . . . . . 104 3. Administrative Jurisdiction ......................... 110 4. Jurisdiction of Administrative Courts . . . .. ..... 112 5. Determination of Jurisdiction . . . " ..... 113 6. General Assessment . . 114

References . . . . . . . . . . . . . . ..... 115

Chapter 8. Judicial Remedies and Procedure . . . . . . . . . . . . . . . . . . . 117 A. Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

1. NatureofJudicialRemedies ......................... 117 2. Kinds of Suits ................................. 118 3. Conditions for Judicial Relief . . . . . . . . . . . . . . . . 119

B. Procedure .................................... 125 1. Principles of Procedure ............................ 125 2. Procedure in the Court of First Instance. . . .. ....... . . 128 3. Appeal, Revision, and Complaint . . . . . . . . . . . . . . . . . . . . . . 130 4. Interim Relief . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 5. Reopening of the Proceedings . . . . . . . . .... 135 6. Execution of Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . 136

C. Concluding Remarks

References . . . . . . . .

... 136

... 137

XXII

Part V. State Liability

Chapter 9. Liability of the Public Authorities.

A. Scope and Background . . . . . . . . . . .

B. General Tort Liability . . . . . . . . . 1. Persons Exercising Public Office . 2. Breach of Duty . . . . . . 3. Duty Towards Third Party 4. Exercise of Public Office . 5. Fault and Strict Liability . 6. Liability for Legislative Changes. 7. Limits of Liability . . . . . . . . . . .

Contents

.139

.139

· 142 .142 · 142 .144 · 145 · 146 · 146

. ... 147

C. Liability for Quasi-Expropriation and Sacrifice . . . . . . . 148 1. Liability for Quasi-Expropriation (enteignungsgleicher Eingrifl) ...... 148 2. Liability for Sacrifice (Aufopferung) . . . 149

D. Remedy of Nullifying the Consequences ................... 151

References ....

Table of Statutes . Table of Cases . .

Appendices

Appendix I. The Basic Law. . . . . . . . . . . . . . Appendix II. Law of Administrative Procedure 1976 Appendix III. Law on Administrative Courts 1960 . . Appendix IV. An Illustrative Judgment . . . . . . . .

Bibliographical Note

Subject Index . . . .

· 151

.154 · 156

.... 158 · 164 · 181 · 184

... 188

... 192

Abbreviations

AC AIR AmJCompL BayVBl BayVGH BerRsp BGH BGHZ BVerfG BVerwG BVerfGE BVerwGE BWVBI BWVGHE

BWVGH DOV DRiG DVBl DV ESVGH

Appeal Cases All India Reporter American Journal of Comparative Law Bayerische Verwaltungsblatter Bayerischer Verwaltungsgerichtshof Berliner Rechtsprechung Bundesgerichtshof Entscheidungen des Bundesgerichtshofes in Zivilsachen Bundesverfassungsgericht Bundesverwaltungsgericht Entscheidungen des Bundesverfassungsgerichts Entscheidungen des Bundesverfassungsgerichts Baden-Wurttembergisches Verwaltungsblatt Entscheidungssammlung des Verwaltungsgerichtshofs Baden-Wurttemberg Baden-Wurttembergischer Verwaltungsgerichtshof Die Offentliche Verwaltung Deutsches Richtergesetz Deutsches Verwaltungsblatt Die Verwaltung Entscheidungssammlung des Hess. und des Baden-Wurttembergischen Verwaltungsgerichtshofes

EuGRZ Europaische Grundrecht Zeitschrift GG Grundgesetz GVG Gerichtsverfassungsgesetz Hess VGH Hessischer Verwaltungsgerichtshof Int'l & Comp L Q International and Comparative Law Quarterly J Ind L lost Journal of the Indian Law Institute JZ Juristenzeitung L Q Rev Law Quarterly Review NJW New Juristische Wochenschrift NVwZ New Zeitschrift fur Verwaltungsrecht OVG LbgE Entscheidungen der Verwaltungsgerichte fUr das Land (Liineburg) Schleswig-Holstein in Liineburg OVG Oberverwaltungsgericht PrOVG PrOVGE QB RGZ

Entscheidungen des PreuBischen Oberverwaltungsgerichts

Queen's Bench Entscheidungen des Reichsgerichts in Zivilsachen

XXIV

SC SCC S., Ss. Sect., Sects. USC UChiLRev US VGH VG VR VerwRspr VVDStRL

VwGO VWR VwVfG WBVGH WLR ZPO

Supreme Court Supreme Court Cases

§, §§ or Section, Sections

United States Code University of Chicago Law Review United States Verwaltungsgerichtshof Verwaltungsgericht Verwaltungsrecht Verwaltungsrechtsprechung in Deutschland Veroffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer Verwaltungsgerichtsordnung Verwaltungsrecht Verwaltungsverfahrensgesetz Wiirttemberg-Badischer Verwaltungsgerichtshof Weekly Law Reports Zivilprozessordnung

Abbreviations