Administrative
Procedure Act
(Verwaltungsverfahrensgesetz, VwVfG) |
of May 25th 1976; in the
wording last promulgated on January 23rd 2003 (Federal Law Gazette I p. 102),
amended by Article 1, of the Fourth Administrative Law Amendment Act (Viertes Gesetz zur Änderung verwaltungsverfahrensrechtlicher
Vorschriften – 4. VwVfÄndG)
of December 11th 2008 (Federal Law Gazette I p. 2418)
Table of Contents
Part I: Scope, local competence,
electronic communication, official assistance
Section 1 Scope
Section 2 Exceptions
Section 3 Local competence
Section 3a Electronic communication
Section 4 Authorities' duty to assist one another
Section 5 Circumstances permitting and limits to
official assistance
Section 6 Choice of authority
Section 7
Execution of official assistance
Section 8 Cost of official
Part II: General regulations governing administrative
procedure
Division 1:
Procedural principles
Section 9 Definition of administrative procedure
Section 10 Administrative procedure not tied to form
Section 11 Capacity to participate
Section 12 Capacity to act
Section 13 Participants
Section 14 Authorised
representatives and advisers
Section 15 Appointment of an authorised
recipient
Section 16 Official appointment of a representative
Section 17 Representatives in the case of identical
submissions
Section 18 Representatives for participants with the
same interests
Section 19 Provisions relating to representatives in
the case of identical submissions and those for participants with the same
interests
Section 20 Persons excluded
Section 21 Fear of prejudice
Section 22 Commencement of proceedings
Section 23 Official language
Section 24 Principle of investigation
Section 25 Advice and information
Section 26 Evidence
Section 27 Affirmation in place of oath
Section 28 Hearing of participants
Section 29 Inspection of documents by participants
Section 30 Secrecy
Division 2: Time
limits, deadlines, restoration
Section 31 Time limits and deadlines
Section 32 Restoration of the status quo ante
Division 3: Official
certification
Section 33 Certification of documents
Section 34 Certification of signatures
Part III: Administrative acts
Division 1: Materialisation of an administrative act
Section 35 Definition of an administrative act
Section 36 Additional stipulations to an
administrative act
Section 37 Determinateness and form of an
administrative act
Section 38 Assurance
Section 39 Grounds for an administrative act
Secion 40 Discretion
Section 41 Notification of an administrative act
Section 42 Obvious errors in an administrative act
Section 42a Fictitious
approval
Division 2: Validity
of an administrative act
Section 43 Validity of an administrative act
Section 44 Invalidity of an administrative act
Section 45 Making good defects in procedure or form
Section 46 Consequences of defects in procedure and
form
Section 47 Converting a
defective administrative act
Section 48 Withdrawal of an unlawful administrative
act
Section 49 Revocation of a legal administrative act
Section 49a Reimbursement, interest
Section 50 Withdrawal and revocation in proceedings
for a legal remedy
Section 51 Resumption of proceedings
Section 52 Return of documents and other materials
Division 3: Legal
effects of an administrative act on the statute of limitations
Section 53 Suspension of the statute of limitations by
administrative act
Part IV: Agreement under public law
Section 54 Admissibility of an agreement under public
law
Section 55 Compromise agreements
Section 56 Exchange agreements
Section 57 Written form
Section 58 Agreement of third parties and authorities
Section 59 Invalidity of an agreement under public law
Section 60 Adaptation and termination in special cases
Section 61 Submission to immediate enforcement
Section 62 Supplementary application of provisions
Part V: Special types of procedures
Division 1: Formal
administrative proceedings
Section 63 Application of provisions concerning formal
administrative proceedings
Section 64 Form of applications
Section 65 Participation of witnesses and experts
Section 66 Obligation to hear participants
Section 67 Need for an oral hearing
Section 68 Conduct of oral hearings
Section 69 Decisions
Section 70 Contesting the
decision
Section 71 Special provisions governing formal
proceedings before committees
Division 1a:
Procedures dealt with by a single authority
Section 71a Applicability
Section 1b Procedure
Section 1c Duty to provide information
Section 1d Mutual Support
Section 1e Electronic Procedure
Division 2:
Procedures for planning approval
Section 72 Application of provisions on planning
approval procedures
Section 73 Hearings
Section 74 Decisions on planning approval, planning
consent
Section 75 Legal effects of planning approval
Section 76 Changes to the plan before the project is
finished
Section 77 Annulment of a planning approval decision
Section 78 Coincidence of several projects
Part VI: Procedures for legal remedies
Section 79 Remedies for administrative acts
Section 80 Refund of costs in preliminary proceedings
Part VII: Honorary positions, committees
Division 1: Honorary
positions
Section 81 Application of the provisions on honorary
positions
Section 82 Duty of honorary participation
Section 83 Performance of an honorary function
Section 84 Duty to observe secrecy
Section 85 Compensation
Section 86 Dismissal
Section 87 Administrative offences
Division 2:
Committees
Section 88 Application of the provisions on
Section 89 Order of meetings
Section 90 Quorum
Section 91 Adoption of resolutions
Section 92 Elections by committees
Section 93 Minutes
Part VIII: Concluding provisions
Section 94 Delegation of municipal duties
Section 95 Special arrangements for defence matters
Section 96 Transitional proceedings
Section 97 Amendment of the Code of Administrative
Court Procedure
Section 98 Amendment of the Law Concerning Federal
Long-Distance Highways
Section 99 Amendment of the Immissions
Act
Section 100 Regulations under state law
Section 101 City-state clause
Section 102 Transitional rule on section 53
Section 103 Entry into force
Part I:
Scope, local competence, electronic communication, official assistance
Section 1 Scope
(1) This Act shall apply to the
administrative activities under public law of the official bodies:
1. of the Federal Government and public law entities,
institutions and foundations operated directly by the Federal Government,
2. of the Länder and local
authorities and other public law entities subject to the supervision of the Länder where these execute federal legislation on behalf of
the federal authorities,
where no federal law or regulation contains similar or
conflicting provisions.
(2) This Act shall also apply to the
administrative activities under public law of the authorities referred to in paragraph
1, no. 2 when the Länder of their own authority
execute federal legislation within the exclusive or concurrent powers of the
Federal Government, where no federal law or regulation contains similar or
conflicting provisions. This shall apply to the execution of federal
legislation enacted after this Act comes into force only to the extent that the
federal legislation, with the agreement of the Bundesrat,
declares this Act to be applicable.
(3) This Act shall not apply to the
execution of federal law by the Länder where the
administrative activity of the authorities under public law is regulated by a
law on administrative procedure of the Länder.
(4) For the purposes of this Act
"authorities" shall comprise any body which
performs tasks of public administration.
Section 2 Exceptions
(1) This Act shall not apply to the
activities of churches, religious bodies and communities of belief and their
associations and institutions.
(2) This Act also shall not apply to:
1. procedures of the federal
or local tax authorities under the German Fiscal Code,
2. criminal and other prosecutions and the punishment
of administrative offences, judicial proceedings carried out on behalf of
foreign legal authorities in criminal and civil matters and, notwithstanding
section 80, paragraph 4, to measures relating to the legal status of the
judiciary,
3. proceedings at the German
Patent and Trade Mark Office and before its appointed arbitrators,
4. proceedings under the
Social Code,
5. the law on the Equalisation of Burdens,
6. the law on restitution.
(3) As regards
the activities:
1. of the court
administrations and the administrative bodies of the judiciary, including the
public law entities under their supervision, this Act shall apply only in so
far as re-examination is subject to control in administrative court
proceedings;
2. of the authorities in assessing individuals’
performance, suitability and the like, only sections 3a to 13, 20 to 27, 29 to
38, 40 to 52, 79, 80 and 96 shall apply;
3. of representatives of the
Federal Government abroad, this Act shall not apply.
Section 3 Local competence
(1) The following shall be the provisions
as regards local competence:
1. in matters relating to
immovable assets or to a right or legal relationship linked to a certain place:
the authority in whose districts the assets or the place is situated;
2. in matters relating to the running of a firm or one
of its places of business, to the practice of a profession or to the carrying
out of other permanent activity: the authority in whose district the firm or
place of business is or is to be run, the profession practised
or the permanent activity carried out;
3. in other matters relating to:
a) natural persons: the
authority in whose district the natural person is or last was normally
resident,
b) legal persons or
associations: the authority in whose district the legal person or association
is or last was legally domiciled;
4. in matters for which
competence cannot be derived from nos. 1 to 3: the authority in whose district
the event giving rise to the official action occurs.
(2) In the event of several authorities
being competent under paragraph 1, the decision shall be taken by the authority
first concerned with the matter unless the supervisory authority with overall
competence in such matters determines that the decision shall be taken by
another locally competent authority. In cases in which one and the same matter
involves more than one place of business of a firm, the supervisory authority
can appoint one of the authorities competent under paragraph 1, no. 2 as the
authority with overall competence where this is called for in the interests of
a uniform decision for all concerned. The said supervisory authority shall also
decide as to local competence when a number of authorities consider themselves
either to possess or not to possess the relevant competence or when for other
reasons there is some doubt in the matter of competence. Where an overall
supervisory authority does not exist, the supervisory authorities competent in
the matter shall take a decision jointly.
(3) If in the course of the administrative
process some change in the circumstances determining competence occurs, the
authority hitherto competent may continue the administrative process when this
doing so is in the interest of simplicity and efficiency of execution while
protecting the interests of those concerned and where the agreement of the
authority now competent is obtained.
(4) Where delay involves a risk, any
authority shall be locally competent to take measures which cannot be postponed
when the event giving rise to the official action occurs in its district. The
authority locally competent under paragraph 1, nos. 1 to 3 shall be informed
immediately.
Section 3a Electronic communication
(1) The communication of electronic
documents is permissible provided the recipient establishes access for this.
(2) Where legal provisions stipulate that
a document be in written form, this may be replaced by
electronic form unless determined otherwise by a legal provision. In this event
the electronic document is to be provided with a qualified electronic signature
in accordance with the Digital Signature Act. Signing with a pseudonym that
makes it impossible to identify the person holding a signature key shall not be
permissible.
(3) If an electronic document communicated
to the authority is not suitable for processing by that authority, the
authority shall inform the sender immediately, stating the technical
specifications that apply. If a recipient claims that he is unable to process the
electronic document communicated by the authority, it shall send it to him
again in a suitable electronic format or as a written document.
Section 4 Authorities' duty to
assist one another
(1) Each authority shall, when requested
to do so, render assistance to other authorities (official assistance).
(2) It shall not be deemed official
assistance when:
1. authorities assist each
other in the course of a relationship in which one issues directives to
another;
2. assistance involves
actions which are the task of the authority approached.
Section 5 Circumstances permitting
and limits to official assistance
(1) An authority may request official
assistance particularly when:
1. for legal reasons it cannot itself perform the
official action;
2. for material reasons, such
as the lack of personnel or equipment needed to perform the official action, it
cannot itself do so;
3. to carry out its tasks it
requires knowledge of facts unknown to and unobtainable by it;
4. to carry out its tasks it
requires documents or other evidence in the possession of the authority
approached;
5. it could only carry out
the task at substantially greater expense than the authority approached.
(2) The authority approached may not
provide assistance when:
1. it is unable to do so for
legal reasons;
2. such assistance would be
seriously detrimental to the Federal Republic or to a Land thereof.
The authority approached shall not be
obliged to submit documents or files nor to impart information when proceedings
must be kept secret either by their nature or by law.
(3) The authority approached need not
provide assistance when:
1. another authority can
provide the same assistance with much greater ease or at much lower cost;
2. it could only provide such
assistance at disproportionately great expense;
3. with regard to the tasks
carried out by the authority requesting assistance, it could only provide such
assistance by seriously jeopardizing its own work.
(4) The authority approached may not
refuse assistance on the grounds that it considers the request inappropriate
for reasons other than those given in paragraph 3, or considers the purpose to
be
achieved by the official assistance inappropriate.
(5) If the authority approached does not
consider itself obliged to provide assistance, it shall so inform the authority
making the request. If the latter insists that official assistance be provided,
the decision as to whether or not an obligation to furnish such assistance
exists shall be taken by the supervisory authority with overall competence in
the matter or, where no such authority exists, the supervisory authority
competent in matters with which the authority of whom the request is made is
concerned.
Section 6 Choice of authority
If more than one authority comes into
question as a possible provider of official assistance, assistance shall where
possible be requested of an authority of the lowest administrative level of the
administrative branch to which the authority requesting assistance belongs.
Section
7 Execution of official assistance
(1) The admissibility of the measure to be
put into effect by official assistance shall be determined by the law applying
to the authority requesting assistance; the official assistance shall be
carried out in accordance with the law applying to the authority of which the
request is made.
(2) The authority requesting assistance
shall be responsible vis-à-vis the authority from which assistance is requested
for the legality of the measure to be taken. The authority of which assistance
is requested shall be responsible for the execution of the official assistance.
Section 8 Cost of official
(1) The authority requesting assistance
shall not be liable to pay the authority from which official assistance is
requested any administrative fee for such assistance. It shall, however,
reimburse the latter for individual expenses in excess of thirty-five (35) euros upon request. If authorities belonging to the same
legal entity provide each other with assistance,
no expenses shall be reimbursed.
(2)
If the authority from which official assistance is requested undertakes an
official action for which fees are charged, then that authority shall be
entitled to such fees paid by a third party (administrative charges, fees,
expenses).
Part II:
General regulations governing administrative procedure
Division 1: Procedural principles
Section 9 Definition of
administrative procedure
For the purposes of this Act,
administrative procedure shall be the activity of authorities having an
external effect and directed to the examination of basic requirements, the
preparation and adoption of an administrative act or to the conclusion of an
administrative agreement under public law; it shall include the adoption of the
administrative act or the conclusion of the agreement under public law.
Section 10 Administrative procedure
not tied to form
The administrative procedure shall not be
tied to specific forms when no legal provisions exist which specifically govern
procedural form. It shall be carried out in an uncomplicated, appropriate and
timely fashion.
Section 11 Capacity to participate
The following shall be capable of
participating in such procedures:
1. natural and legal persons,
2. associations, in so far as
they can have rights,
3. authorities.
Section 12 Capacity to act
(1) The following shall be capable of
acting in administrative procedures:
1. natural persons having
legal capacity under civil law,
2. natural persons whose legal capacity is limited
under civil law, where they are recognised as having
legal capacity for the object of the procedure under civil law or capable of
acting under public law,
3. legal persons and
associations (section 11, no. 2) represented by their legal representatives or
of specially appointed individuals,
4. authorities represented by
their heads, representatives or persons appointed by them.
(2) If there is a reservation of consent
under section 1903 of the Civil Code regarding the object of the procedure, a
person of legal capacity under the care of a custodian shall be deemed capable
of acting in administrative procedures only in so far as he can act, under the
provisions of civil law, without the consent of the custodian, or he is
recognized as being capable of acting under the provisions of public law.
(3) Sections 53 and 55 of the Code of
Civil Procedure shall apply mutatis mutandis.
Section 13 Participants
(1) Participants shall be:
1. those making and opposing
an application,
2. those to whom the
authority intends to direct or has directed the administrative act,
3. those with whom the
authority intends to conclude or has concluded an agreement under public law,
4. those who have been
involved in the procedure by the authority under paragraph 2.
(2) The authority may ex officio or upon
request involve as participants those whose legal interests may be affected by
the result of proceedings. Where such result has a legal effect for a third
party, the latter may upon request be involved in the proceedings as a
participant. If the authority is aware of such third parties, it shall inform
them that proceedings have commenced.
(3) A person who is to be heard, but is
not a participant within the sense of paragraph 1, does not thereby become a
participant.
Section 14 Authorised
representatives and advisers
(1) A participant may cause himself to be
represented by a person authorised for that purpose.
The authorisation shall empower the person to whom it
is given to take all actions related to the administrative proceedings except
where its contents indicate otherwise. The authorized person shall provide
written evidence of his authorisation upon request.
Any revocation of authorisation shall only become
effective vis-àvis the authority when received by it.
(2) Authorisation
shall not be terminated either by the death of the person granting such authorisation, or by any change in his capacity to act or
in his legal representative; when however appearing in the administrative
proceedings on behalf of the legal successor, the authorized person shall upon
request furnish written evidence of his authorisation.
(3) Where a person is appointed to act as
representative in proceedings, he shall be the person with whom the authority
deals. The authority may approach the actual participant where he is obliged to
cooperate. If the authority does approach the participant, the authorized
representative is to be informed. Provisions governing service on the
representative shall remain unaffected.
(4) A participant may appear in
negotiations and discussions with an adviser. Any points made by the adviser
shall be deemed to have been put by the participant except where the latter
immediately contradicts them.
(5) Authorized representatives and
advisers shall be rejected where they provide legal services in violation of
section 3 of the Legal Services Act.
(6) Authorised
representatives and advisers may be refused permission to make submissions if
they are unsuitable to do so; they may be refused permission to make a verbal
submission only if they are not capable of proper representation. Persons
authorized under section 67, paragraph 2, first and second sentence, items 3 to
7 of the Code of Administrative Court Procedure to act in administrative
proceedings, may not be refused such permission.
(7) Refusal of permission under paragraphs
5 and 6 shall also be made known to the participant whose authorised
representative or adviser is refused permission. Acts relating to the
proceedings undertaken by the authorised
representative or adviser after such refusal of permission shall be invalid.
Section 15 Appointment of an authorised recipient
A participant with no permanent or
habitual residence, registered office or agency in Germany shall on request
give to the authority the name of an authorised
recipient in Germany within a reasonable period. Should he fail to do so, any
document sent to him shall be regarded as received on the seventh day after its
posting, and a document transmitted electronically shall be regarded as
received on the third day after its transmission. This shall not apply if it is
established that the document did not reach the recipient or reached him at a
later date. The participant
shall be informed of the legal consequences of this
failure.
Section 16 Official appointment of a
representative
(1) Where no representative is appointed,
the guardianship court shall, at the request of the authority, appoint a
suitable representative for:
1. a participant whose
identity is unknown;
2. an absent participant
whose residence is unknown or who is prevented from looking after his affairs;
3. a participant without
residence within Germany who does not comply with the authority's request to
nominate a representative within the period set;
4. a participant whose mental
illness or physical, mental or emotional disability does not permit him to take
part personally in the administrative proceedings;
5. matters which are the
subject of proceedings and where there is no owner, claimant, or person
responsible to defend the rights and obligations in question.
(2) In cases covered by paragraph 1, no.
4, the court responsible for appointing a representative shall be the
guardianship court in whose district the participant has his habitual
residence; otherwise, the court responsible shall be the guardianship court in
whose district the authority making the request is located.
(3) The representative shall be entitled
to claim a reasonable remuneration and refund of his expenses from the legal
entity of the authority requesting his appointment. The authority may require
the person represented to refund its expenses. It shall determine the amount of
remuneration and ascertain the amount of expenditure and costs.
(4) In other respects, the appointment and
office of the representative in cases listed in paragraph 1, no. 4 shall be
governed by the provisions on guardianship [Betreuung];
in other cases, the provisions on trusteeship [Pflegschaft]
shall apply as appropriate.
Section 17 Representatives in the
case of identical submissions
(1) In the case of applications and
petitions submitted in an administrative proceeding signed by more than fifty
persons, or presented in the form of duplicated and identical texts (identical
submissions), the person deemed to be representing the other signatories shall
be that signatory who is identified by his name, profession and address as
being their representative unless he is named by them as authorised
representative [Bevollmächtigter]. Only a natural
person may be a representative [Vertreter].
(2) The authority may disregard identical
submissions which do not contain the information referred to in paragraph 1,
first sentence clearly visible on each page containing a signature or which do
not comply with the requirements of paragraph 1, second sentence. If the
authority wishes to proceed in this manner, it must make the fact known by
giving notice in accordance with local custom. The authority may, moreover,
disregard identical submissions when the signatories have failed to give their
name or address or have done so in an illegible manner.
(3) The power of representation shall
lapse as soon as the representative or the person represented informs the
authority in writing that this is the case. The representative may only make
such a statement in respect of all the persons represented. If the person
represented makes such a statement, he shall at the same time inform the
authority whether he wishes to maintain his submission and whether he has
appointed an authorised representative.
(4) Once the representative is no longer
entitled to act, the authority may require the persons no longer represented to
appoint a joint representative within a reasonable period. When the number of
persons subject to such a requirement exceeds 50, the authority may make the
fact known by giving notice in accordance with local custom. If the requirement
is not complied with within the period set, the authority may ex officio
appoint a joint representative.
Section 18 Representatives for
participants with the same interests
(1) If more than fifty people are involved
as participants in administrative proceedings with the same interests and are
unrepresented, the authorities may require them within a reasonable period to
appoint a joint representative where otherwise the regular execution of
administrative proceedings would be impaired. If these persons do not comply
within the period set, the authority may ex officio appoint a joint
representative. Only a natural person may be a representative.
(2) The power of representation shall
lapse as soon as the representative or person represented informs the authority
in writing that this is the case. The representative may make such a statement
only in respect of all the persons represented. If the person represented makes
such a statement, he shall at the same time inform the authority whether he
wishes to maintain his submission and whether he has appointed an authorised representative.
Section 19 Provisions relating to
representatives in the case of identical submissions and those for participants
with the same interests
(1) The representative shall protect
carefully the interests of the persons he represents. He may undertake all
actions relating to the administrative proceedings and shall not be tied to
instructions.
(2) The provisions of section 14,
paragraphs 5 to 7 shall apply mutatis mutandis.
(3) The representative appointed by the
authority shall be entitled to claim from its legal entity a reasonable
remuneration and refund of his expenses. The authority may require the persons
represented to refund its expenditure in equal shares. It shall determine the
amount of remuneration and ascertain the amount of expenditure and costs.
Section 20 Persons excluded
(1) The following persons may not act on
behalf of an authority:
1. a person who is himself a
participant;
2. a relative of a
participant;
3. a person representing a
participant by virtue of the law or of a general authorisation
or in the specific administrative proceedings;
4. a relative of a person who
is representing a participant in the proceedings;
5. a person employed by a participant and receiving
remuneration from him, or one active on his board of management, supervisory
board or similar body; this shall not apply to a person whose employing body is
a participant;
6. a person who, outside his
official capacity, has furnished an opinion or otherwise been active in the
matter. Anyone who may benefit or suffer directly as a result of the action or
the decision shall be on an equal footing with the participant. This shall not
apply when the benefit or disadvantage is based only on the fact that someone
belongs to an occupational group or segment of the population whose joint
interests are affected by the matter.
(2) Paragraph 1 shall not apply to
elections to an honorary position or to the removal of a person from such a
position.
(3) Any person excluded under paragraph 1
may, when there is a risk involved in delay, undertake measures which cannot be
postponed.
(4) If a member of a committee (section
88) considers himself to be excluded, or where there is doubt as to whether the
provisions of paragraph 1 apply, the chairman of the committee must be
informed. The committee shall decide on the matter of exclusion; the person
concerned shall not participate in the decision. The excluded member may not
attend further discussions or be present when decisions are taken.
(5) Relatives for the purposes of
paragraph 1, nos. 2 and 4 shall be:
1. fiancé(e)s,
2. spouses,
3. direct relations and
direct relations by marriage,
4. siblings,
5. children of siblings,
6. spouses of siblings and
siblings of spouses,
7. siblings of parents,
8. persons connected by a long-term foster
relationship involving a shared dwelling in the manner of parents and children
(foster parents and foster children).
The persons listed in sentence 1 shall be
deemed to be relatives even where
1. the marriage producing the
relationship in nos. 2, 3, and 6 no longer exists;
2. the relationship or
relationship by marriage in nos. 3 to 7 ceases to exist through adoption;
3. in case no. 8, a shared dwelling is no longer
involved, so long as the persons remain connected as parent and child.
Section 21 Fear of prejudice
(1) Where grounds exist to justify fears
of prejudice in the exercise of official duty, or if a participant maintains
that such grounds exist, anyone who is to be involved in administrative
proceedings on behalf of an authority shall inform the head of the authority or
the person appointed by him and shall at his request refrain from such
involvement. If the fear of prejudice relates to the head of the authority, the
supervisory authority shall request him to refrain from involvement where he
has not already done so of his own accord.
(2) Section 20, paragraph 4 shall apply as
appropriate to a member of a committee (section 88).
Section 22 Commencement of
proceedings
The authority shall decide after due
consideration whether and when it is to instigate administrative proceedings.
This shall not apply when the authority by law
1. must act ex officio or
upon application;
2. may only act upon
application and no such application is submitted.
Section 23 Official language
(1) The official language shall be German.
(2) If applications are made to an
authority in a foreign language, or petitions, evidence, documents and the like
are filed in a foreign language, the authority shall immediately require that a
translation be provided. Where necessary the authority may require that the
translation provided be made by a certified or publicly authorised
and sworn translator or interpreter. If the required translation is not
furnished without delay, the authority may, at the expense of the participant,
itself arrange for a translation. Where the authority employs interpreters or
translators, they shall receive remuneration in accordance with the appropriate
provisions of the Judicial Remuneration and Compensation Act (Justizvergütungs- und –entschädingungsgesetz,
JVEG).
(3) If a notice, application or statement
of intent fixes a period within which the authority is to act in a certain
manner and such notifications are received in a foreign language, the period
shall commence only at the moment that a translation is available to the
authority.
(4) If a notice, application or statement
of intent received in a foreign language fixes a period for a participant
vis-à-vis the authority, enforces a claim under public law or requires the fulfilment of an action, the said notice, application or
statement of intent shall be considered as being received by the authority on
the actual date of receipt where at the authority's request a translation is provided
within the period fixed by the authority. Otherwise the moment of receipt of
the translation shall be deemed definitive, unless international agreements
provide otherwise. This fact should be made known when a period is fixed.
Section 24 Principle of
investigation
(1) The authority shall determine the
facts of the case ex officio. It shall determine the type and scope of
investigation and shall not be bound by the participants’ submissions and
motions to admit evidence.
(2) The authority shall take account of
all circumstances of importance in an individual case, including those favourable to the participants.
(3) The authority shall not refuse to
accept statements or applications falling within its sphere of competence on
the ground that it considers the statement or application inadmissible or
unjustified.
Section 25 Advice and information
(1) The authority shall cause statements
or applications to be made or corrected when it is clear that these were not
submitted or were incorrectly submitted only due to error or ignorance. It
shall, where necessary, give information regarding the rights and duties of
participants in the administrative proceedings.
(2) Where required, the authority shall
proceed, even before an application is made, to discuss with the prospective
applicant what evidence and documents he will have to submit as well as options
for expediting the proceedings. Where it serves to expedite the proceedings,
the authority should inform the applicant immediately upon receipt of the application
about the expected duration of the proceedings and confirm whether or not the
application and the relevant documents received are complete.
Section 26 Evidence
(1) The authority shall utilise such evidence as, after due consideration, it deems
necessary in order to ascertain the facts of the case. In particular it may:
1. gather information of all
kinds,
2. hear the evidence of
participants, witnesses and experts or gather statements in writing or
electronically from participants, experts and witnesses,
3. obtain documents and
records,
4. visit and inspect the
locality involved.
(2) The participants shall assist in
ascertaining the facts of the case. In particular they shall state such facts
and evidence as are known to them. A more extensive duty to assist in
ascertaining the facts, and in particular the duty to appear personally or make
a statement, shall exist only where the law specifically requires this.
(3) Witnesses and experts shall be
obligated to make a statement or furnish opinions, when the law specifically
requires this. When the authority has called upon witnesses and experts, they
shall receive compensation or remuneration upon application in accordance with
the appropriate provisions of the Judicial Remuneration and Compensation Act (Justizvergütungs- und - entschädingungsgesetz,
JVEG).
Section 27 Affirmation in place of
oath
(1) In ascertaining the facts of a case,
the authority may require and accept an affirmation in place of oath only when
the acceptance of such an affirmation concerning the matter involved and in the
proceedings concerned is allowed by law or regulation and the authority has
been legally declared competent. An affirmation in place of oath shall only be
required where other means of establishing the truth are not available, have
been without result or require disproportionate expense. An affirmation in
place of oath may not be required of persons who are unfit to take an oath
under section 393 of the Code of Civil Procedure.
(2) If an affirmation in place of oath is
recorded in writing by an authority, the only persons authorised
to make such a recording shall be the head of the authority, his general deputy
and members of the civil service qualified for judicial office or who fulfil the requirements of section 110, first sentence of
the German Judiciary Act. The head of the authority or his general deputy may authorise in writing other members of the civil service to
act generally in this capacity or for individual cases.
(3) The person making the affirmation
shall confirm the correctness of his statement on the matter concerned and
declare "I affirm in place of an oath that to the best of my knowledge I
have told the pure truth and have concealed nothing". Authorised
representatives and advisers may take part in the recording of an affirmation
in place of oath.
(4) Before an affirmation in place of oath
is accepted, the person making the affirmation shall be informed of the
significance of such an affirmation and the legal consequences under criminal
law of making an incorrect or incomplete statement. The fact that this has been
done must be included in the written record.
(5) The written record shall in addition
contain the names of those present and the place and date of the record. The
written record shall be read to the person making the affirmation for his
approval, or, upon request, shall be made available for him to inspect. The
fact that this has been done should be noted and signed by the person making
the affirmation. The written record shall then be signed by the person
receiving the affirmation in place of oath and by the person actually making
the written record.
Section 28 Hearing of participants
(1) Before an administrative act affecting
the rights of a participant
may be executed, the latter must be given the opportunity
of commenting on the facts relevant to the decision.
(2) This hearing may be omitted when not
required by the circumstances of an individual case and in particular when:
1. an immediate decision appears
necessary in the public interest or because of the risk involved in delay;
2. the hearing would jeopardise the observance of a time limit vital to the
decision;
3. the intent is not to
diverge, to his disadvantage, from the actual statements made by a participant
in an application or statement;
4. the authority wishes to
issue a general order or similar administrative acts in considerable numbers or
administrative acts using automatic equipment;
5. measures of administrative
enforcement are to be taken.
(3) A hearing shall not be granted when
this is grossly against the public interest.
Section 29 Inspection of documents
by participants
(1) The authority shall allow participants
to inspect the documents connected with the proceedings where knowledge of their
contents is necessary in order to assert or defend their legal interests. Until
administrative proceedings have been concluded, the foregoing sentence shall
not apply to draft decisions and work directly connected with their
preparation. Where participants are represented as provided under sections 17
and 18, only the representatives shall be entitled to inspect documents.
(2) The authority shall not be obliged to
allow the inspection of documents where this would interfere with the orderly
performance of the authority's tasks, where knowledge of the contents of the
documents would be to the disadvantage of the country as a whole or of one of
the Länder, or where proceedings must be kept secret
by law or by their very nature, i.e. in the rightful interests of participants
or of third parties.
(3) Inspection of documents shall take
place in the offices of the record-keeping authority. In individual cases,
documents may also be inspected at the offices of another authority or of the
diplomatic or consular representatives of the Federal Republic of Germany
abroad. The authority keeping the records may make further exceptions.
Section 30 Secrecy
Participants shall be entitled to require
that matters of a confidential nature, especially those relating to their
private lives and business, shall not be revealed by the authority without
permission.
Division 2: Time limits, deadlines, restoration
Section 31 Time limits and deadlines
(1) The calculation of time limits and the
setting of deadlines shall be subject to the provisions of sections 187 to 193
of the Civil Code as appropriate, except where otherwise provided by paragraphs
2 to 5.
(2) A time limit set by an authority shall
begin the day after the announcement of the time limit, except where the person
concerned is informed otherwise.
(3) If the end of a time limit falls on a
Sunday, a public holiday or a Saturday, the time limit shall end with the end
of the next working day. This shall not apply when the person concerned has
been informed that the time limit shall end on a certain day and has been
referred to this provision.
(4) If an authority has to fulfil a task only for a certain period, this period shall end
at the end of the last day thereof, even where this is a Sunday, a public
holiday or a Saturday.
(5) A deadline fixed by an authority shall
be observed even when it falls on a Sunday, a public holiday or a Saturday.
(6) When a time limit is fixed in terms of
hours, Sundays, public holidays and Saturdays shall be included.
(7) Time limits fixed by an authority may
be extended. Where such time limits have already expired, they may be extended
retrospectively, particularly when it would be unfair to allow the legal
consequences resulting from expiration of the time limit to stand. The
authority may combine the extension of the time limit with an additional
stipulation under section 36.
Section 32 Restoration of the status
quo ante
(1) Where a person has through no fault of
his own been prevented from observing a statutory time limit, he shall, upon
request, be granted a restoration of his original legal position. The fault of
a representative shall be deemed to be that of the person he represents.
(2) Such an application must be made
within two weeks of the removal of the obstacle. The facts justifying the
application must be substantiated when the application is made or during the
proceedings connected with the application. The action which the person has failed
to carry out must be effected within the application period. If this is done,
restoration may be granted even without application.
(3) After one year has elapsed from the
end of the time limit which was not observed, no application for restoration
may be made and the action not carried out cannot be made good, except where it
was impossible for this to be done within the period of a year for reasons of
force majeure.
(4) The application for restoration shall
be decided upon by the authority responsible for deciding on the matter of the
action not carried out.
(5) Restoration shall not be permitted
when this is excluded by legal provision.
Division 3: Official certification
Section 33 Certification of
documents
(1) Every authority shall be authorised to certify as true copies of documents it has
itself issued. In addition, authorities empowered by statutory instrument of
the Federal Government under section 1, paragraph 1, no. 1 and the authorities
empowered under the law of the Länder may certify
copies as true where the original document was issued by an authority or the
copy is required for submission to an authority, except where the law provides
that the issuing of certified copies of documents from official records and
archives is the exclusive province of other authorities; the statutory
instrument does not require approval of the Bundesrat.
(2) Copies may not be certified as true
when circumstances justify the assumption that the original contents of the
documents, the copy of which is to be certified, have been changed, and
particularly when the document concerned contains gaps, deletions, insertions,
amendments, illegible words, figures or signs, traces of the erasure of words,
figures or signs, or where the continuity of a document composed of several
sheets has been interrupted.
(3) A copy is certified as true by means
of a certification note placed at the end of the copy. This note must contain:
1. an exact description of
the document of which a copy is being certified,
2. a statement that the certified
copy is identical with the original document submitted,
3. a statement to the effect
that the certified copy is only issued for submission to the authority
specified, when the original document was not issued by an authority,
4. the place and date of
certification, the signature of the official responsible for certification and
the official stamp.
(4) Paragraphs 1 to 3 shall apply
accordingly to the certification of
1. photocopies, phototypes
and similar reproductions produced by technical means,
2. negatives of written
documents, which are produced by photographic means and stored by an authority,
3. print-outs of electronic documents,
4. electronic documents,
a) produced to reproduce a written document,
b) which have been given a technical
format different to that of the initial document associated with a qualified
electronic signature.
(5) In addition to what is stated in
paragraph 3 second sentence, the certification note must in the case of
certification of
1. the print-out of an
electronic document associated with a qualified electronic signature contain a
statement of
a) whom the signature check
identifies as holder of the signature,
b) the date shown by the
signature check for the application of the signature, and
c) which certificates
containing which data this signature was based on;
2. an electronic document contain the name of the
official responsible for certification and the designation of the authority
carrying out certification; the signature of the official responsible for
certification and the official seal in accordance with paragraph 3 second
sentence number 4 shall be replaced by a permanently verifiable qualified
electronic signature.
If an electronic document given a
different technical format to the initial document associated with a qualified
electronic signature is certified in accordance with sentence 1 number 2, the
certification note must in addition contain the statements described in
sentence 1 number 1 for the initial document.
(6) Where certified, the documents
produced in accordance with paragraph 4 shall be equivalent to certified
copies.
Section 34 Certification of
signatures
(1) The authorities empowered by statutory
orders by the Federal Government under section 1, paragraph 1, no. 1 and the
authorities empowered under the law of the Länder may
certify signatures as true when the signed document is required for submission
to an authority or other official body to which the signed document must be
submitted by law. This shall not apply to:
1. signatures without
accompanying text,
2. signatures which require
public certification under section 129 of the Civil Code.
(2) A signature may only be certified when
it has been made or acknowledged in the presence of the certifying official.
(3) The certification note shall be placed
immediately adjacent to the signature to be certified and must contain:
1. a statement that the
signature is genuine,
2. an exact identification of
the person whose signature is certified, and also a statement as to whether the
official responsible for certification was satisfied as to the identity of the
person and whether the signature was made or acknowledged in his presence,
3. a statement that the
certification is only for submission to the authority or other body mentioned,
4. the place and date of
certification, the signature of the official responsible for certification and
the official stamp.
(4) Paragraphs 1 to 3 apply mutatis
mutandis to the certification of personal identificatory
marks.
(5) Statutory instruments under paragraphs
1 and 4 do not require the approval of the Bundesrat.
Part III: Administrative acts
Division 1: Materialisation
of an administrative act
Section 35 Definition of an
administrative act
An administrative act shall be any order, decision
or other sovereign measure taken by an authority to regulate an individual case
in the sphere of public law and intended to have a direct, external legal
effect. A general order shall be an administrative act directed at a group of
people defined or definable on the basis of general characteristics or relating
to the public law aspect of a matter or its use by the public at large.
Section 36 Additional stipulations
to an administrative act
(1) An administrative act which a person
is entitled to claim may be accompanied by an additional stipulation only when
this is permitted by law or when it is designed to ensure that the legal
requirements for the administrative act are fulfilled.
(2) Notwithstanding the provisions of
paragraph 1, an administrative act may, after due consideration, be issued
with:
1. a stipulation to the
effect that a privilege or burden shall begin or end on a certain date or shall
last for a certain period (time limit);
2. a stipulation to the
effect that the commencement or ending of a privilege or burden shall depend
upon a future occurrence which is uncertain (condition);
3. a reservation regarding
annulment;
or be combined with
4. a stipulation requiring
the beneficiary to perform, suffer or cease a certain action (obligation);
5. a reservation to the
effect that an obligation may subsequently be introduced, amended or
supplemented.
(3) An additional stipulation may not
counteract the purpose of the administrative act.
Section 37 Determinateness and form
of an administrative act
(1) An administrative act must be
sufficiently clearly defined in content.
(2) An administrative act may be issued in
written, electronic, verbal or other form. A verbal administrative act must be
confirmed in writing or electronically when there is justified interest that
this should be done and the person affected requests this immediately. An
electronic administrative act shall be confirmed in writing under the same
conditions; section 3a, paragraph 2 shall not apply in this respect.
(3) A written or electronic administrative
act must indicate the issuing authority and contain the signature or name of
the head of the authority, his representative or deputy. If electronic form is
used for an administrative act for which written form is ordered by a legal
provision, the qualified certificate on which the electronic signature is based
or an associated qualified certificate of attribution shall also indicate the
issuing authority.
(4) For an administrative act, permanent
verifiability may be prescribed by a legal provision for the signature required
in accordance with section 3a, paragraph 2.
(5) In the case of a written
administrative act issued by means of automatic equipment, the signature and
name required in paragraph 3 above may be omitted. Symbols may be used to
indicate content where the person for whom the administrative act is intended
or who is affected is able to comprehend its contents clearly from the
explanations given.
Section 38 Assurance
(1) The agreement by a competent authority
to issue a certain administrative act at a later date or not to do so
(assurance) must be in writing in order to be valid. If, before the
administrative act in respect of which such assurance was given, participants
have to be heard or the participation of another authority or of a committee is
required by law, the assurance may only be given after the participants have
been heard or after participation of such authority or committee.
(2) Notwithstanding the provisions of
paragraph 1, first sentence, section 44 shall apply as appropriate to the
invalidity of the assurance; section 45, paragraph 1, nos. 3 to 5 and paragraph
2 shall apply as appropriate to the remedying of deficiencies in the hearing of
participants and the participation of other authorities or committees; section
48 shall apply as appropriate to withdrawal; and, notwithstanding paragraph 3,
section 49 shall apply as appropriate to revocation.
(3) After an assurance has been given the
basic facts or legal situation of the case change to such an extent that, had
the authority known of the subsequent change, it would not have given the
assurance or could not have done so for legal reasons, the authority is no
longer bound by its assurance.
Section 39 Grounds for an
administrative act
(1) A written or electronic administrative
act, as well as an administrative act confirmed in writing or electronically,
shall be accompanied by a statement of grounds. This statement of grounds must
contain the chief material and legal grounds led the authority to take its
decision. The grounds given in connection with discretionary decisions should
also contain the points of view which the authority considered while exercising
its powers of discretion.
(2) No statement of grounds is required:
1. when the authority is
granting an application or is acting upon a declaration and the administrative
act does not infringe upon the rights of another;
2. when the person for whom the administrative act is
intended or who is affected by the act is already acquainted with the opinion
of the authority as to the material and legal positions and able to comprehend
it without argumentation;
3. when the authority issues
identical administrative acts in considerable numbers or with the help of
automatic equipment and individual cases do not merit a statement of grounds;
4. when this derives from a
legal provision;
5. when a general order is
publicly promulgated.
Section 40 Discretion
Where an authority is empowered to act at
its discretion, it shall do so in accordance with the purpose of such
empowerment and shall respect the legal limits to such discretionary powers.
Section 41 Notification of an
administrative act
(1) An administrative act shall be made
known to the person for whom it is intended or who is affected thereby. Where
an authorized representative is appointed, the notification may be addressed to
him.
(2) A written administrative act shall be
deemed notified on the third day after posting if posted to an address within
Germany. An administrative act transmitted electronically within Germany or
abroad shall be deemed notified on the third day after sending. This shall not
apply if the administrative act was not received or was received at a later
date; in case of doubt the authority must prove the receipt of the administrative
act and the date of receipt.
(3) An administrative act may be publicly
promulgated where this is permitted by law. A general order may also be
publicly promulgated when notification of those concerned is impracticable.
(4) The public promulgation of an
administrative act in written or electronic form shall be effected by
advertising the operative part in accordance with local custom. Promulgation
shall state where the administrative act and its statement of grounds may be
inspected. The administrative act shall be deemed to have been promulgated two
weeks after the date of advertising in accordance with local custom. A general
order may fix a different day for this purpose but in no case may this be
earlier than the date following advertisement.
(5) Provisions governing the promulgation
of an administrative act by service shall remain unaffected.
Section 42 Obvious errors in an
administrative act
The authority may at any time correct
typographical mistakes, errors in calculation and similar obvious inaccuracies
in an administrative act. When the person concerned has a justifiable interest,
correction must be undertaken. The authority shall be entitled to request
presentation of the document for correction.
Section 42a Fictitious
approval
(1) Upon expiry of a specified
decision-making period, an approval that has been applied for shall be deemed
granted (fictitious approval) if this is stipulated by law and if the
application is sufficiently clearly defined in content. The regulations
concerning the validity of administrative acts and the proceedings for legal
remedy shall apply mutatis mutandis.
(2) The decision-making period pursuant to
paragraph 1 fist sentence shall be three months unless otherwise stipulated by
law. The period starts upon reception of the complete application documents. It
may be extended once by a reasonable period of time if this is warranted by the
complexity of the matter. Any such extension of the decision-making period
shall be justified and communicated in good time.
(3) Upon request, the fact that the
approval is deemed granted (fictitious approval) shall be confirmed in writing
to the person to whom the administrative act would have had to be notified
pursuant to section 41, paragraph 1.
Division 2: Validity of an administrative act
Section 43 Validity of an
administrative act
(1) An administrative act shall become
effective vis-à-vis the person for whom it is intended or who is affected
thereby at the moment he is notified thereof. The administrative act shall
apply in accordance with its tenor as notified.
(2) An administrative act shall remain
effective for as long as it is not withdrawn, annulled, otherwise cancelled or
expires for reasons of time or for any other reason.
(3) An administrative act which is invalid
shall be ineffective.
Section 44 Invalidity of an
administrative act
(1) An administrative act shall be invalid
where it is very gravely erroneous and this is apparent when all relevant
circumstances are duly considered.
(2) Regardless of the conditions laid down
in paragraph 1, an administrative act shall be invalid if:
1. it is issued in written or
electronic form but fails to show the issuing authority;
2. by law it can be issued
only by means of the delivery of a document, and this method is not followed;
3. it has been issued by an authority acting beyond
its powers as defined in section 3, paragraph 1, no. 1 and without further authorisation;
4. it cannot be implemented
by anyone for material reasons;
5. it requires an action in
contravention of the law incurring a sanction in the form of a fine or
imprisonment;
6. it offends against
morality.
(3) An administrative act shall not be
invalid merely because:
1. provisions regarding local
competence have not been observed, except in a case covered by paragraph 2, no.
3;
2. a person excluded under
section 20, paragraph 1, first sentence, nos.
2 to 6 is involved;
3. a committee required by
law to play a part in the issuing of the administrative act did not take or did
not have a quorum to take the necessary decision;
4. the collaboration of
another authority required by law did not take place.
(4) If the invalidity applies only to part
of the administrative act it shall be entirely invalid where the invalid
portion is so substantial that the authority would not have issued the
administrative act without the invalid portion.
(5) The authority may ascertain invalidity
at any time ex officio; it must be ascertained upon application when the person
making such an application has a justified interest in so doing.
Section 45 Making good defects in
procedure or form
(1) An infringement of the regulations
governing procedure or form which does not render the administrative act
invalid under section 44 shall be ignored when:
1. the application necessary
for the issuing of the administrative act is subsequently made;
2. the necessary statement of
grounds is subsequently provided;
3. the necessary hearing of a
participant is subsequently held;
4. the decision of a
committee whose collaboration is required in the issuing of the administrative
act is subsequently taken;
5. the necessary
collaboration of another authority is subsequently obtained.
(2) Actions referred to in paragraph 1 may
be made good up to the final court of administrative proceedings.
(3) Where an administrative act lacks the
necessary statement of grounds or has been issued without the necessary prior
hearing of a participant, so that the administrative act was unable to be
contested in good time, failure to observe the period for legal remedy shall be
regarded as unintentional. The event resulting in restoration of the status quo
ante under section 32, paragraph 2 shall be deemed to occur when omission of
the procedural action is made good.
Section 46 Consequences of defects
in procedure and form
Application for annulment of an
administrative act which is not invalid under section 44 cannot be made solely
on the ground that the act came into being through the infringement of
regulations governing procedure, form or local competence, where it is evident
that the infringement has not influenced the decision on the matter.
Section 47 Converting
a defective administrative act
(1) A defective administrative act may be
converted into a different administrative act when it has the same aim, could
legally have been issued by the issuing authority using the procedures and
forms in fact adopted, and when the requirements for its issue have been
fulfilled.
(2) Paragraph 1 shall not apply when the
different administrative act would contradict the clearly recognisable
intention of the issuing authority or when its legal consequences would be less
favourable for the person affected than those of the
defective act. Conversion is not permissible when the withdrawal of the
administrative act would not be allowable.
(3) A decision dictated by a legal
requirement cannot be converted into a discretionary decision.
(4) Section 28 shall apply mutatis
mutandis.
Section 48 Withdrawal of an unlawful
administrative act
(1) An unlawful administrative act may,
even after it has become non-appealable, be withdrawn wholly or in part either
retrospectively or with effect for the future. An administrative act which
gives rise to a right or an advantage relevant in legal proceedings or confirms
such a right or advantage (beneficial administrative act) may only be withdrawn
subject to the restrictions of paragraphs 2 to 4.
(2) An unlawful administrative act which
provides for a one-time or continuing payment of money or a divisible material
benefit, or which is a prerequisite for these, may not be withdrawn so far as
the beneficiary has relied upon the continued existence of the administrative
act and his reliance deserves protection relative to the public interest in a
withdrawal. Reliance is in general deserving of protection when the beneficiary
has utilised the contributions made or has made
financial arrangements which he can no longer cancel, or can cancel only by
suffering a disadvantage which cannot reasonably be asked of him. The
beneficiary cannot claim reliance when:
1. he obtained the
administrative act by false pretences, threat or bribery;
2. he obtained the
administrative act by giving information which was substantially incorrect or
incomplete;
3. he was aware of the
illegality of the administrative act or was unaware thereof due to gross
negligence.
In the cases provided for in sentence 3,
the administrative act shall in general be withdrawn with retrospective effect.
(3) If an unlawful administrative act not
covered by paragraph 2 is withdrawn, the authority shall upon application make
good the disadvantage to the person affected deriving from his reliance on the
existence of the act to the extent that his reliance merits protection having
regard to the public interest. Paragraph 2, third sentence shall apply. However,
the disadvantage in financial terms shall be made good to an amount not to
exceed the interest which the person affected has in the continuance of the
administrative act. The financial disadvantage to be made good shall be
determined by the authority. A claim may only be made within a year, which
period shall commence as soon as the authority has informed the person affected
thereof.
(4) If the authority learns of facts which
justify the withdrawal of an unlawful administrative act, the withdrawal may
only be made within one year from the date of gaining such knowledge. This
shall not apply in the case of paragraph 2, third sentence, no. 1.
(5) Once the administrative act has become
non-appealable, the decision concerning withdrawal shall be taken by the
authority competent under section 3. This shall also apply when the
administrative act to be withdrawn has been issued by another authority.
Section 49 Revocation of a legal
administrative act
(1) A lawful, non-beneficial
administrative act may, even after it has become non-appealable, be revoked
wholly or in part with effect for the future, except when an administrative act
of like content would have to be issued or when revocation is not allowable for
other reasons.
(2) A lawful, beneficial administrative
act may, even when it has become non-appealable, be revoked in whole or in part
with effect for the future only when:
1. revocation is permitted by
law or the right of revocation is reserved in the administrative act itself;
2. the administrative act is
combined with an obligation which the beneficiary has not complied with fully
or not within the time limit set;
3. the authority would be
entitled, as a result of a subsequent change in circumstances, not to issue the
administrative act and if failure to revoke it would be contrary to the public
interest;
4. the authority would be entitled, as a result of an
amendment to a legal provision, not to issue the administrative act where the
beneficiary has not availed himself of the benefit or has not received any
benefits derived from the administrative act and when failure to revoke would
be contrary to the public interest, or
5. in order to
prevent or eliminate serious harm to the common good. Section 48 paragraph 4
applies mutatis mutandis.
(3) A lawful administrative act which
provides for a one-time or a continuing payment of money or a divisible
material benefit for a particular purpose, or which is a prerequisite for
these, may be revoked even after such time as it has become non-appealable,
either wholly or in part and with retrospective effect,
1. if, once this payment is
rendered, it is not put to use, or is not put to use either without undue delay
or for the purpose for which it was intended in the administrative act;
2. if the administrative act
had an obligation attached to it which the beneficiary either fails to satisfy
or does not satisfy within the stipulated period. Section 48 paragraph 4
applies mutatis mutandis.
(4) The revoked administrative act shall
become null and void with the coming into force of the revocation, except where
the authority fixes some other date.
(5) Once the administrative act has become
non-appealable, decisions as to revocation shall be taken by the authority
competent under section 3. This shall also apply when the administrative act to
be revoked has been issued by another authority.
(6) In the event of a beneficial
administrative act being revoked in cases covered by paragraph 2, nos. 3 to 5,
the authority shall upon application make good the disadvantage to the person
affected deriving from his reliance on the continued existence of the act to
the extent that his reliance merits protection. Section 48, paragraph 3, third
to fifth sentences shall apply as appropriate. Disputes concerning compensation
shall be settled by the ordinary courts.
Section 49a Reimbursement, interest
(1) Where an administrative act is either
withdrawn or revoked with retrospective effect, or where it becomes invalid as
a result of the occurrence of a condition which renders it null and void, any
payments or contributions which have already been made shall be returned. The
amount of such a reimbursement shall be stipulated in a written administrative
act.
(2) The amount to be reimbursed, excepting
interest, is governed by the relevant provisions of the Civil Code on
surrendering undue enrichment. The beneficiary is not entitled to claim that
enrichment no longer exists where he was either aware of the circumstances
which led to the administrative act being withdrawn, revoked or becoming
invalid, or failed as a result of gross negligence to be aware of this.
(3) Interest shall be due on the amount to
be reimbursed from the date on which the administrative act becomes invalid at
a rate of 5 (five) per cent per annum above the currently valid Discount Rate
of the German Federal Bank [Deutsche Bundesbank]. The
payment of interest may be waived where the beneficiary cannot be held
responsible for the circumstances which led to the administrative act being
withdrawn, revoked or becoming invalid and repays the amount in full within the
time limit stipulated by the authority.
(4) If a reimbursement is not put to use
upon receipt immediately and for the intended purpose, the payment of interest
may be demanded at the level stated in paragraph 3, first sentence for the
period up to the date at which it is put to its designated use. The same shall
apply as far as a reimbursement is claimed, even when other funds are to be
used proportionally or preferentially. The provisions of section 49, paragraph
3, first sentence, no. 1 remain unaffected.
Section 50 Withdrawal and revocation
in proceedings for a legal remedy
Section 48, paragraph 1, second sentence
and paragraphs 2 to 4 and section 49, paragraphs 2 to 4 and 6 shall not apply
when a beneficial administrative act which has been contested by a third party
is annulled during a preliminary procedure, or during proceedings before the
administrative court, and the annulment operates in favour
of the third party.
Section 51 Resumption of proceedings
(1) The authority shall, upon application
by the person affected, decide concerning the annulment or amendment of a
non-appealable administrative act when:
1. the material or legal
situation basic to the administrative act has subsequently changed to favour the person affected;
2. new evidence is produced which would have meant a
more favourable decision for the person affected;
3. there are grounds for
resumption of proceedings under section 580 of the Code of Civil Procedure.
(2) An application shall only be
acceptable when the person affected was, without grave fault on his part,
unable to enforce the grounds for resumption in earlier proceedings,
particularly by means of a legal remedy.
(3) The application must be made within
three months, this period to begin with the day on which the person affected
learnt of the grounds for resumption of proceedings.
(4) The decision regarding the application
shall be made by the authority competent under section 3; this shall also apply
when the administrative act which is to be anulled or
amended was issued by another authority.
(5) The provisions of section 48,
paragraph 1, first sentence and of section 49,
paragraph 1 shall remain unaffected.
Section 52 Return of documents and
other materials
When an administrative act has been
revoked or withdrawn and appeal is no longer possible, or the administrative
act is ineffective or no longer effective for other reasons, the authority may
require such documents or materials as have been distributed as a result of the
administrative act, and which serve to prove the rights deriving from the
administrative act or its exercise, to be returned. The holder and, where this
person is not the owner, also the owner of these documents or materials are
obliged to return them. However, the holder or owner may require that the
documents or materials be handed back to him once the authority has marked them
as invalid. This shall not apply to materials for which such a marking is
impossible or cannot be made with the necessary degree of visibility or
permanence.
Division 3: Legal effects of an administrative act on
the statute of limitations
Section 53 Suspension of the statute
of limitations by administrative act
(1) An administrative act which is issued in
order to determine or enforce the claim of a legal entity under public law
suspends the statute of limitations in respect of the claim. This suspension
shall continue until the administrative act has become non-appealable or 6
months after it has been otherwise settled.
(2) If an administrative act has become
non-appealable within the meaning of paragraph 1, the time limit shall be set
at 30 years. As far as the administrative act involves a claim to regularly
recurring payments due in the future, the time limit that applies to this claim
shall remain in force.
Part IV:
Agreement under public law
Section 54 Admissibility of an
agreement under public law
A legal relationship under public law may
be constituted, amended or annulled by agreement (agreement under public law)
in so far as this is not contrary to legal provision. In particular, the
authority may, instead of issuing an administrative act, conclude an agreement
under public law with the person to whom it would otherwise direct the
administrative act.
Section 55 Compromise agreements
The authority may conclude an agreement
under public law within the meaning of section 54, second sentence, which
eliminates an uncertainty existing even after due consideration of the facts of
the case or of the legal situation by mutual yielding (compromise) if the
authority considers the conclusion of such a compromise agreement advisable in
order to eliminate the uncertainty.
Section 56 Exchange agreements
(1) An agreement under public law within
the meaning of section 54, second sentence and under which the party to the
agreement binds himself to give the authority a consideration may be concluded
when the consideration is agreed in the contract as being for a certain purpose
and serves the authority in the fulfilment of its
public tasks. The consideration must be in proportion to the overall
circumstances and be materially connected with the contractual performance of
the authority.
(2) Where a claim to the performance of
the authority exists, only such considerations may be agreed which might form
the subject of an additional stipulation under section 36, were an
administrative act to be issued.
Section 57 Written form
An agreement under public law must be in
written form except where another form is prescribed by law.
Section 58 Agreement of third
parties and authorities
(1) An agreement under public law which
infringes upon the rights of a third party shall become valid only when the
third party gives his agreement in writing.
(2) If an agreement is concluded instead
of an administrative act, the issuing of which by law would require the
acceptance, agreement or approval of another authority, the agreement shall not
become valid until the other authority has collaborated in the form prescribed.
Section 59 Invalidity of an
agreement under public law
(1) An agreement under public law shall be
invalid when its invalidity derives from the appropriate application of
provisions of the Civil Code.
(2) An agreement within the meaning of
section 54, second sentence shall also be invalid when:
1. an administrative act with
equivalent content would be invalid;
2. an administrative act with
equivalent content would be unlawful not merely for a deficiency in procedure
or form under section 46, and this fact was known to the parties;
3. the conditions for
conclusion of a compromise agreement were not fulfilled and an administrative
act with similar content would be unlawful not merely for a deficiency in
procedure or form under section 46;
4. the authority requires a
consideration which is not permissible under section 56.
(3) If only a part of the agreement is
invalid, it shall be invalid in its entirety, unless it can be assumed that it
would also have been concluded without the part which is invalid.
Section 60 Adaptation and termination
in special cases
(1) If the circumstances which determined
the content of the agreement have altered since the agreement was concluded so
substantially that one party to the agreement cannot reasonably be expected to
adhere to the original provisions of the agreement, this party may demand that
the content of the agreement be adapted to the changed conditions or, where
such adaptation is impossible or not reasonably to be expected of the other
party, may terminate the agreement. The authority may also terminate the
agreement in order to avoid or eliminate grave
harm to the common good.
(2) Termination must be in written form,
except where the law prescribes another form. Reasons for termination must be
stated.
Section 61 Submission to immediate enforcement
(1) Any party to an agreement may submit
to immediate enforcement deriving from an agreement under public law within the
meaning of section 54, second sentence. The authority must in this case be
represented by the head of the authority, his general deputy or a member of the
civil service qualified for judicial office or fulfilling the requirements of
section 110, first sentence of the German Judiciary Act.
(2) The federal law on administrative
enforcement shall apply mutatis mutandis to agreements under public law within
the meaning of paragraph 1, first sentence when the party entering upon the
agreement is an authority within the meaning of section 1, paragraph 1, no. 1. If a natural or legal person under private law or an
association not having legal capacity effects enforcement for a monetary claim,
section 170, paragraphs 1 to 3 of the Code of Administrative Court Procedure
shall apply mutatis mutandis. If enforcement is designed to obtain performance,
suffering or non-performance of an action against an authority within the
meaning of section 1, paragraph 1, no. 1, section 172 of the Code of
Administrative Court Procedure shall again apply as appropriate.
Section 62 Supplementary application
of provisions
As far as sections 54 to 61 do not provide
otherwise, the remaining provisions of this Act shall apply. The provisions of
the Civil Code shall also additionally apply as appropriate.
Part V:
Special types of procedures
Division 1: Formal administrative
proceedings
Section 63 Application of provisions
concerning formal administrative proceedings
(1) Formal administrative
proceedings pursuant to this Act take place when required by law.
(2) Formal administrative proceedings are
governed by sections 64 to 71 and, unless they provide otherwise, the other
provisions of this Act.
(3) Notice under section 17, paragraph 2,
second sentence and the requirement under section 17, paragraph 4, second sentence shall be publicly announced in formal
administrative proceedings. Public announcement shall be effected when the
notification or the requirement is published by the authority in its official
bulletin and also in local daily newspapers which circulate widely in the
district in which the decision may be expected to have its effects.
Section 64 Form of applications
If formal administrative proceedings
require an application, this shall be made in writing or be recorded in writing
by the authorities.
Section 65 Participation of
witnesses and experts
(1) In formal administrative proceedings
witnesses are obliged to give evidence and experts to provide opinions. The
provisions of the Code of Civil Procedure regarding the obligation to give
evidence as a witness or to furnish an opinion as an expert, the rejection of
experts and the hearing of statements by members of the civil service as
witnesses or experts shall apply mutatis mutandis.
(2) If witnesses or experts refuse to give
evidence or to furnish an opinion in the absence of any of the grounds referred
to in sections 376, 383 to 385 and 408 of the Code of Civil Procedure, the
authority can ask the administrative court competent in the area in which the
witness or expert has his domicile or normal residence to take evidence. If the
domicile or normal residence of the witness or expert is not at a place where
there is an administrative court or specially constituted chamber, the
competent municipal court may be requested to take the evidence. In making its
request the authority must state the subject of the examination and the names
and addresses of those concerned. The court shall inform those concerned of the
dates on which evidence will be
taken.
(3) If the authority considers it
advisable for statements to be made under oath in view of the importance of the
evidence of a witness or of the opinion of an expert, or in order to ensure
that the truth is told, it may request the court competent under paragraph 2 to
administer the oath.
(4) The court shall decide as to the
legality of a refusal to give evidence or an opinion or to take the oath.
(5) An application under paragraph 2 or 3
to the court may be made only by the head of an authority, his general deputy
or a member of the civil service qualified for judicial office or fulfilling
the conditions of section 110, first sentence of the German Judiciary Act.
Section 66 Obligation to hear
participants
(1) In formal administrative proceedings
the participants shall be afforded the opportunity of making a statement before
a decision is taken.
(2) Participants shall be afforded an
opportunity of attending hearings of witnesses and experts and inspecting the
locality concerned and of asking pertinent questions. They shall be furnished
with a copy of any opinion existing in written or electronic form.
Section 67 Need for an oral hearing
(1) The authority shall decide after an
oral hearing, to which the participants shall be invited in writing on due
notice. The invitations should point out that if a participant fails to appear,
the discussions can proceed and decisions be taken in his absence. If more than
50 invitations must be sent, this may be done by public announcement. Public
announcement shall be effected by publishing the date of the hearing at least
two weeks beforehand in the official bulletin of the authority, and also in the
local daily newspapers with wide circulation in the district in
which the decision may be expected to have its effect,
reference being accordingly made to the third sentence. The period referred to
in the fifth sentence shall be calculated from the date of publication in the
official bulletin.
(2) The authority may reach a decision
without an oral hearing when:
1. an application is fully
complied with by agreement between all concerned;
2. within the period set for
this purpose no party has entered opposition to the intended measure;
3. the authority has informed
the participants that it intends to reach a decision without an oral hearing
and no participant opposes this within the period set for this purpose;
4. all participants have
agreed to waive the hearing;
5. an immediate decision is
necessary because of the risk involved in delay.
(3) The authority shall pursue proceedings
so as to ensure that if possible the matter can be settled in one session.
Section 68 Conduct of oral hearings
(1) The oral hearing shall not be public.
It may be attended by representatives of the supervisory authority and by
persons working with the authority for training purposes. The person in charge
of the hearing may admit other people if no participant objects.
(2) The person in charge of the hearing
shall discuss the matter with the parties concerned. He shall endeavour to clarify applications which are unclear, to see
that relevant applications are made, inadequate statements supplemented and
that all explanations necessary to ascertain the facts of the case are given.
(3) The person in charge of the hearing
shall be responsible for keeping order. He may have persons who do not observe
his orders removed. The hearing may be continued without such persons.
(4) A written record shall be made of the
oral hearing and must contain the following information:
1. place and date of the
hearing,
2. the names of the person in
charge of the hearing and of the participants, witnesses and experts appearing,
3. the subject of the inquiry
and the applications made,
4. the chief content of
statements by witnesses and experts,
5. the result of any visit to
the location concerned.
The written record shall be signed by the
person in charge of the hearing and, where the services of such a person are
used, by the person keeping the written record. Inclusion in a document
attached in the form of an appendix and designated as such shall be equivalent
to inclusion in a written record of the hearing. The record of the hearing
shall make reference to the appendix.
Section 69 Decisions
(1) The authority shall take its decision
having considered the overall result of proceedings.
(2) Administrative acts which conclude the
formal proceedings must be in written form, must contain a statement of grounds
and be sent to the participants; in cases referred to in section 39, paragraph
2, nos. 1 and 3, no statement of grounds is required. An electronic
administrative act as described in sentence 1 shall be provided with a permanently
verifiable qualified electronic signature. Where more than 50 notifications
have to be sent, this may be replaced by public announcement. Public
announcement shall be effected by publishing the operative part of the decision
in the official bulletin of the authority, and also in the local daily
newspapers with circulation in the district in which the decision may be
expected to have its effect. The administrative act shall be deemed to have
been delivered two weeks from the day of publication in the official bulletin,
which fact shall be included in the announcement. After public announcement has
been made and until the period for appeal has expired, the administrative act
may be requested in writing or electronically by the participants, which fact
shall also be included in the announcement.
(3) If formal administrative proceedings
are concluded in another manner, those concerned shall be informed. If more
than 50 notifications have to be sent, this may be replaced by public
announcement; paragraph 2, fourth sentence shall apply mutatis mutandis.
Section 70 Contesting
the decision
No examination in preliminary proceedings
is required before an action is brought before the administrative court against
an administrative act issued in formal administrative proceedings.
Section 71 Special provisions
governing formal proceedings before committees
(1) If the formal administrative procedure
takes place before a committee (section 88), each member shall be entitled to
put relevant questions. If a participant objects to a question, the committee
shall decide as to the question’s admissibility.
(2) Only committee members who have
attended the oral hearing may be present during discussions and voting. Other
persons who may attend are those employed for training purposes by the
authority forming the committee, subject to the chairman’s approval. The
results of the voting must be recorded.
(3) Any participant may reject a member of
the committee who is not entitled to take part in the administrative proceedings
(section 20) or who may be prejudiced (section 21). A rejection made before the
oral hearing must be explained in writing or recorded. The explanation shall
not be acceptable if the participant has attended the oral hearing without
making known his reasons for rejection. Decisions as to rejection shall be
governed by section 20, paragraph 4, second to fourth sentences.
Division 1a: Procedures dealt with
by a single authority
Section 71a Applicability
(1) Where it is stipulated by law that an
administrative procedure may be dealt with by a single authority, the
provisions of this division and, where they do not stipulate otherwise, the
remaining provisions of this law shall apply.
(2) The duties pursuant to section 71 b
paragraphs 3, 4 and 6, section 71 c paragraph 2 and section 71 e shall be
incumbent on the competent authority even in cases where the applicant or the
person who is under an obligation to notify, addresses himself directly to the
competent authority.
Section 71b Procedure
(1) The single authority shall receive
notices, applications, statements of intent and documents and shall transfer
them immediately to the competent authorities.
(2) On the third day following receipt by
the single authority, notices, applications, statements of intent and documents
shall be deemed received by the competent authority. Time limits shall be
deemed observed if the notice, application, statement of intent or document is
received in good time by the single authority.
(3) If a notice, application or statement of
intent fixes a time limit within which the competent authority is to take
action, the competent authority shall issue a receipt. The receipt shall
indicate the date on which the notice, application or statement of intent was
received by the single authority and state the time limit, the preconditions
for fixing the time limit and the legal consequences resulting from expiry of
the time limit and the legal remedy available.
(4) If the notice or application is
incomplete, the competent authority shall immediately request the applicant or
the person who has filed the notice to submit the missing documents. The
request shall contain a reference pointing out that the time limit pursuant to
paragraph 3 is fixed by the receipt of the complete documentation. The date on
which the subsequently submitted documents are received by the single authority
shall be confirmed to the applicant or the person who has filed the notice.
(5) To the extent that the single
authority is involved in the handling of the procedure, notices by the
competent authority to the applicant or the person who has filed a notice
should be passed on through the single authority. Upon the request of the
person for whom it is intended, an administrative act shall be made known
immediately to him by the competent authority.
(6) A written administrative act shall be
deemed notified one month after posting if posted to a foreign address. Section
41, paragraph 2, third sentence shall apply mutatis mutandis. The applicant or
the person who has filed a notice must not be required to appoint an authorized
recipient pursuant to section 15.
Section 71c Duty to provide
information
(1) Upon request, the single authority
shall immediately provide information on the relevant regulations, the
competent authorities, the access to public registers and data bases, the
procedural rights available and the institutions which support the applicant or
the person who has filed a notice in taking up or exercising his activity. It
shall immediately inform the applicant or the person who has filed a notice if
such a request is too unspecific.
(2) Upon request, the competent
authorities shall immediately provide information on the relevant regulations
and their customary interpretation. Encouragements and information required pursuant
to section 25 shall be provided immediately.
Section 71d Mutual Support
Together, the single authority and the
competent authorities shall strive for an orderly and expeditious handling of
the procedure; all single authorities and competent authorities shall be
supported in these efforts. The competent authorities shall make available to
the single authority in particular the necessary information concerning the
status of the procedure.
Section 71e Electronic Procedure
Upon request, the procedure under this
division shall be handled electronically. The provisions under section 3 a,
paragraph 2, second and third sentence and paragraph 3 shall remain unaffected.
Division 2: Procedures for planning
approval
Section 72 Application of provisions
on planning approval procedures
(1) Where the law requires proceedings for
planning approval, these shall be governed by sections 73 through 78 and,
unless these provide otherwise, by the remaining provisions of this Act.
Section 51 and sections 71a to 71e shall not apply and section 29 shall apply
with the condition that files shall be open to inspection at the due discretion
of the authority.
(2) Notice under section 17, paragraph 2,
second sentence and the requirement under section 17, paragraph 4, second sentence shall be publicly announced in planning
approval proceedings. Public announcement shall be effected by the authority
publishing the notification or the requirement in its official bulletin and
also in local daily newspapers which circulate widely in the district in which
the project may be expected to have its effect.
Section 73 Hearings
(1) The project developer shall submit the
plan to the hearing authorities to enable the hearing to be held. The plan
shall comprise the drawings and explanations to clarify the project, the
reasons behind it and the land and structures affected.
(2) Within one month of receiving the
complete plan the hearing authorities shall gather the opinions of those
authorities whose spheres of competence are affected by the project and shall
make the plan available for inspection in those communities on which the
project is likely to have an impact.
(3) Within three weeks of receiving the
plan, the communities referred to in paragraph 2 shall make the plan available
for inspection for a period of one month. This procedure may be omitted where
those affected are known and are given the opportunity to examine the plan
during a reasonable period.
(3a) The
authorities referred to in paragraph 2 shall report their opinions within a
period to be stipulated by the hearing authority, and not to exceed three
months. Comments made after the date set for discussion shall be disregarded,
unless the matters raised are already or should already have been known to the
planning approval authority or have a bearing on the legality of the decision.
(4) Any person whose interests are
affected by the project may, up to two weeks after the end of the inspection
period, lodge objections to the plan in writing or in a manner to be recorded
with the hearing authority or with the community. In the case referred to in
paragraph 3, second sentence, the period for lodging
objections shall be determined by the hearing authority. Following the closing
date for lodging objections, no objections shall be allowed except those which
rest on specific titles enforceable under private law. This fact shall be noted
in the announcement
of the inspection period or in the announcement of the
closing date for lodging objections.
(5) Those communities in which the plan is
to be made public shall give advance notice of the fact according to local
custom. The announcement shall state:
1. where and for what period
the plan is open to inspection;
2. that any objections must
be lodged with the authorities mentioned in the announcement within the time
limit set for that purpose;
3. that if a participant
fails to attend the meeting for discussion, discussions may proceed without
him;
4. that:
a) those persons who lodge
objections may be informed of the dates of meetings for discussion by public
announcement,
b) the notification of
decisions on objections may be replaced by public announcement, if more than 50
notifications have to be made or served. Persons affected who do not reside
locally but whose identity and residence are known or can be discovered within
a reasonable period shall, at the instigation of the hearing authority, be
informed of the plan’s being made available for inspection, with reference to
sentence 2.
(6) Following the closing date for lodging
objections, the hearing authority shall discuss those objections made to the
plan in good time, and the opinions of the authorities with regard to the plan,
with the project developer, the authorities, the persons affected by the plan
and those who have lodged objections to it. The date of the meeting for
discussion must be announced at least a week beforehand in the manner usual in
the district. The authorities, the project developer and those who have lodged
objections shall be informed of the date set for discussion of the plan. If
apart from notifications to authorities and the project developer more than 50
notifications must be sent, this may be replaced by public announcement. Public
announcement shall be effected, notwithstanding sentence 2, by publishing the
date of the meeting for discussion in the official journal of the hearing
authority, and also in local daily newspapers with wide circulation in the
district in which the project may be expected to have its effect. The period
referred to in the second sentence shall be calculated from the date of
publication in the official bulletin. In
other respects, the discussion shall be governed by the
provisions concerning oral hearings in formal administrative proceedings
(section 67, paragraph 1, third sentence, paragraph 2, nos. 1 and 4 and
paragraph 3, and section 68) as appropriate. Discussion shall be concluded
within three months of the closing date for lodging objections.
(7) Notwithstanding the provisions of
paragraph 6, second to fifth sentences, the date of the meeting for discussion
may already be fixed in the announcement in accordance with paragraph 5, second
sentence.
(8) If a plan already open for inspection
is to be altered, and if this means that the sphere of competence of an
authority or the interests of third parties are affected for the first time or
more greatly than hitherto, they shall be informed of the changes and given the
opportunity to lodge objections or state their points of view within a period
of two weeks. If the change affects the territory of another community, the
altered plan shall be made available for inspection in that community;
paragraphs 2 to 6 shall apply as appropriate.
(9) The hearing authority shall issue a
statement concerning the result of the hearing and shall send this, together
with the plan, the opinions of the authorities and those objections which have
not been resolved, to the planning approval authority, if possible within one
month of the conclusion of the discussion.
Section 74 Decisions on planning
approval, planning consent
(1) The planning authority shall consider
and decide on the plan (planning approval decision). The provisions concerning
decisions and contesting decisions in formal administrative proceedings
(sections 69 and 70) shall apply.
(2) The planning approval decision shall
contain the decision of the planning approval authority concerning the
objections on which no agreement was reached during discussions before the
hearing authority. It shall impose upon the project developer the obligation to
take measures or to erect and maintain structures or facilities necessary for
the general good or to avoid detrimental effects on the rights of others. Where
such measures or facilities are impracticable or irreconcilable with the
project, the person affected may claim reasonable monetary compensation.
(3) Where it is not yet possible to make a
final decision, this shall be stated in the planning approval decision; the
project developer shall at the same time be required to submit in good time any
documents still missing or required by the planning approval authority.
(4) The planning approval decision shall
be sent to the project developer, those people known to be affected by the
project and those people whose objections have been dealt with. A copy of the
decision, together with advice on legal remedies and a copy of the plan as
approved, shall be open for inspection in the communities concerned for two
weeks, the place and time at which the plan may be inspected being made known
in accordance with local custom. With the end of the inspection period, the
other parties affected shall be regarded as having been notified, which fact
shall be made known in the announcement.
(5) If apart from the project developer
more than 50 notifications have to be made under paragraph 4, this may be
replaced by public announcement. Public announcement shall be effected by
publishing the operative part of the decision of the planning approval
authority, as well as advice on legal remedies and a reference to the fact that
the plan is open to public inspection pursuant to paragraph 4, second sentence,
in the official bulletin of the competent authority, and also in local daily
newspapers with wide circulation in the district in which the project may be
expected to have its effect. Any impositions shall be indicated. At the end of
the period of public inspection, those affected by the decision and those who
have lodged objections to it shall be regarded as having been notified, which
fact shall be indicated in the public announcement. Between the time of the
public announcement and the end of the period during which legal remedies may
be sought, those affected by the decision and those who have lodged objections
may make written requests for copies of the decision; this shall likewise be
indicated in the public announcement.
(6) Planning consent may be issued in
place of a planning approval decision where
1. there is no impairment of the rights of others or
where those affected have declared in writing that they consent to the utilisation of their property or of some other right, and
2. agreement has been reached
with those public agencies whose spheres of competence are affected.
Planning consent has the same legal
effects as planning approval except for the predetermining legal effect with
regard to later expropriation; the granting of such consent shall not be
governed by the provisions on planning approval procedures. Re-examination in
preliminary proceedings is not required prior to the filing of an action with
the administrative court. Section 75, paragraph 4 applies mutatis mutandis.
(7) Planning approval and planning consent
are not required in cases of minor significance. Such cases are deemed to exist
where
1. no other public concerns
are affected, or the required decisions on the part of authorities have already
been taken and are not in conflict with the plan, and
2. rights of others are not
affected, or the relevant agreements have been reached with those affected by
the plan.
Section 75 Legal effects of planning
approval
(1) Planning approval has the effect of
establishing the admissibility of the project, including the necessary measures
subsequently to be taken in connection with other installations and facilities,
having regard to all public interests affected thereby. No other administrative
decisions, in particular consent issued under public law, grants, permissions, authorisations, agreements or planning approvals are
required. Planning approval legally regulates all relationships under public
law between the project developer and those affected by the project.
(1a) Flaws in the weighing of public and
private interests touched by the project shall be deemed to be significant only
where they have clearly exerted an influence on the outcome of deliberations. Significant
flaws in weighing public and private interests shall result in the annulment of
the decision on planning approval or of planning consent only where such flaws
cannot be rectified by means of modifications to the plan or by a supplementary
procedure.
(2) Once the decision on planning approval
has become nonappealable, no claims to stop the
project, to remove or alter structures or to stop their use will be allowed. If
unforeseeable effects of the project, or of structures built in accordance with
the approved plan, on the rights of another become apparent only after the plan
has become nonappealable, the person affected may
demand that measures be undertaken or structures erected and maintained to
counteract the detrimental effects. Such measures shall be imposed on the
project developer by a decision of the planning approval authority. If such
measures or the installation of such structures are impracticable or
irreconcilable with the project, a claim may be made for reasonable monetary
compensation. If measures or structures within the meaning of sentence 2 become
necessary because of changes which occur on a neighbouring
piece of land after the planning approval procedure has been concluded, the
costs arising shall be borne by the owners of the adjacent land, unless such
changes are the result of natural occurrences or force majeure; sentence 4
shall not apply.
(3) Applications seeking to enforce claims
to the erection of installations or structures or for reasonable compensation
in accordance with paragraph 2, second and fourth sentences shall be made to
the planning authority in writing. These shall only be acceptable if made
within three years of the date on which the person affected became aware of the
detrimental effects of the project resulting from the non-appealable plan, or
of the installations. They may not be made once thirty years have passed from
the creation of the situation shown in the plan.
(4) If work is not commenced on the
project within five years of the plan becoming non-appealable, it shall become
invalid.
Section 76 Changes to the plan
before the project is finished
(1) If the approved plan is to be changed
before the project is finished, a new approval procedure shall be required.
(2) If the changes to the plan are of
negligible importance, the planning approval authorities may waive the need for
a new procedure
where the interests of others are not affected or where
those affected have agreed to the change.
(3) If, in the cases referred to in
paragraph 2, or in other cases of a negligible change to a plan, the planning
approval authority conducts an approval procedure, then no hearing and no
public notification of the planning approval decision is required.
Section 77 Annulment of a planning
approval decision
If a project on which work has commenced
is permanently abandoned, the planning authority shall annul the approval
decision. The annulment decision shall require the project developer to restore
the status quo ante or to take other suitable measures where these are necessary
for the common good or in order to avoid detrimental effects to the rights of
others. If such measures are required because changes occur on an adjacent
piece of land after the planning approval procedure has been completed, the
planning approval authority may decide to require the project developer to
undertake suitable measures. However, the cost thereof shall be borne by the
owner of the adjacent piece of land except where such changes are the result of
natural occurrences or force majeure.
Section 78 Coincidence of several
projects
(1) If a number of independent plans, the
execution of which requires planning approval procedures, coincide in such a
manner that only a uniform decision is possible for these projects or parts
thereof, and if at least one of the planning approval procedures is regulated
by federal law, these projects or parts thereof shall be the subject of one
single planning approval procedure.
(2) Competence and procedures shall be governed
by the regulations relating to planning approval proceedings prescribed for
that structure or facility which affects a larger number of relationships under
public law. In the event of uncertainty as to which legal provision applies,
the Federal Government shall decide, if according to the relevant provisions a
number of federal authorities within the remit of a number of supreme federal
authorities are competent; otherwise, the highest competent federal authority
shall decide. Where there is uncertainty as to which legal provision applies,
and if according to the relevant provisions, a federal authority and a Land
authority are competent, and the highest federal and Land authorities are
unable to reach an agreement, the federal and Land governments shall come to an
agreement as to which legal provision shall apply.
Part VI:
Procedures for legal remedies
Section 79 Remedies for
administrative acts
Formal remedies for administrative acts
shall be governed by the Code of Administrative Court Procedure and its
implementing legislation, except where the law determines otherwise; in other
respects, the provisions of this Act shall apply.
Section 80 Refund of costs in
preliminary proceedings
(1) Where an appeal is successful, the
legal entity whose authority issued the disputed administrative act shall
refund to the person appealing the costs involved in the legal prosecution or defence proceedings. This shall also apply where the appeal
is unsuccessful only because the infringement of a prescription as to form or
procedure is insignificant under section 45. Where the appeal is unsuccessful,
the person entering the appeal shall refund to the authority which issued the
disputed administrative act the costs involved in the necessary legal
prosecution or defence proceedings. This shall not
apply when an appeal is entered against an administrative act which was issued:
1. in the context of an
existing or previously existing relationship of employment or official service
under public law, or
2. in the context of an existing or previously
existing official duty or an activity which may be performed instead of the
legally required official duty.
Costs arising due to the fault of a person
entitled to a refund shall be borne by him; the fault of a representative shall
be regarded as that of the person represented.
(2) The fees and expenses of a lawyer or
other authorised representative in preliminary
proceedings are refundable when the use of a lawyer's services was necessary.
(3) The authority making the decision as
to costs shall upon application fix the amount of the costs to be refunded. If
a committee or advisory board (section 73, paragraph 2 of the Code of
Administrative Court Procedure) has made a decision as to costs, the fixing of
costs shall be the responsibility of the authority forming the committee or
advisory board. The decision as to costs shall also determine whether the
services of a lawyer or other authorised
representative were necessary.
(4) Paragraphs 1 to 3 shall apply also to
preliminary proceedings connected with measures relating to the legal status of
the judiciary.
Part VII:
Honorary positions, committees
Division 1: Honorary positions
Section 81 Application of the
provisions on honorary positions
Sections 82 to 87 govern participation in
an administrative procedure in an honorary capacity as far as legal provisions
do not provide for exceptions.
Section 82 Duty of honorary
participation
A duty to assume an honorary position
shall exist only when the duty is provided for by legislation.
Section 83 Performance of an
honorary function
(1) A person acting in an honorary
capacity shall perform the function in a conscientious and impartial manner.
(2) Upon assuming the position, he shall
be expressly obliged to carry out the tasks in a conscientious and impartial
manner and to observe secrecy. A written record of the conferring of this
obligation shall be made.
Section 84 Duty to observe secrecy
(1) A person acting in an honorary
capacity shall observe secrecy concerning the official business revealed to
him, even after the honorary activity has ended. This obligation shall not
apply to official communications or facts which are
common knowledge or whose significance requires no obligation of secrecy.
(2) A person acting in an honorary
capacity may not without permission testify in court, make statements outside
court or make declarations concerning the official business he is obliged to
keep secret.
(3) Permission to testify as a witness may
be refused only if the testimony would be detrimental to the welfare of the
Federation or a Land, or would seriously endanger or significantly interfere
with the execution of public duties.
(4) If the person who holds an honorary
position is a participant in a legal action before a court, or if his arguments
serve to protect legitimate personal interests, permission to testify may be
refused, even if the conditions in paragraph 3 are fulfilled, only if required
by a compelling public interest. If permission is refused, the person holding
an honorary position shall be provided protection as allowed by the public
interest.
(5) Permission granted in cases covered in
paragraphs 2 to 4 shall be granted by the specially
competent supervisory authority which appointed the person to the honorary
position.
Section 85 Compensation
A person who performs an honorary function
shall have a right to compensation for necessary expenses and for loss of
earnings.
Section 86 Dismissal
Persons who have been appointed to perform
an honorary function can be dismissed for good cause by the authority which
appointed them. Good cause is shown in particular if the person who holds an
honorary position
1. violates his duty in a grievous manner or proves to
be unworthy;
2. is no longer capable of performing the duties in a
proper manner.
Section 87 Administrative offences
(1) An administrative offence shall be
deemed to have been committed by any person who
1. does not assume an
honorary position although he is obliged to do so;
2. lays down an honorary
position which he is obliged to assume without a valid and sufficient reason.
(2) The administrative offence can be
punished by a fine.
Division 2: Committees
Section 88 Application of the provisions
on
Sections 89 to 93 shall govern committees,
advisory councils and other collegial bodies (committees) when they participate
in an administrative procedure, unless legislation provides otherwise.
Section 89 Order of meetings
The chairman shall open, preside over and
close the meeting; he shall be responsible for order.
Section 90 Quorum
(1) Committees shall constitute a quorum
when all the members have been duly summoned and more than half, but at least
three members who are eligible to vote are present. Resolutions may also be
passed in a written procedure if no committee member objects.
(2) If a matter of official business has
been deferred due to lack of a quorum and the committee is again summoned to
take action on the same subject, the committee shall constitute a quorum
regardless of the number of committee members present as long as this provision
has been indicated in the summons.
Section 91 Adoption of resolutions
Resolutions shall be adopted by a majority
of votes. In the case of a parity of votes, the chairman shall have the casting
vote as long as he is eligible to vote; otherwise a parity of votes shall be
considered a rejection of the resolution.
Section 92 Elections by committees
(1) Unless a member of a committee
objects, voting shall be carried out by voice or signal, or else by ballot. A
secret ballot shall be used if a committee member so requests.
(2) The candidate who receives the
greatest number of votes cast shall be elected. In the case of a parity of
votes, the official in charge of the election shall decide the election by
drawing a lot.
(3) Unless otherwise resolved by unanimous
vote, the election procedure to be used when a number of similar elective
positions are to be filled shall be the d'Hondt
highest number procedure. In the event of the highest number being shared, the
official in charge of the election shall determine the allocation of the last
elective position by drawing a lot.
Section 93 Minutes
Minutes of the meeting shall be kept. The
minutes must contain the following information:
1. time and place of the
meeting,
2. name of the chairman and
of the committee members present,
3. subject dealt with and the
motions presented,
4. resolutions passed,
5. election results.
The minutes shall be signed by the chairman
and by a secretary if a secretary has been called in to keep the minutes.
Part VIII:
Concluding provisions
Section 94 Delegation of municipal
duties
By legal ordinance, the governments of the
Länder shall be able to transfer duties which are incumbent
on the communities under sections 73 and 74 of this Act to other local
authorities, or to an administrative community. The legal provisions of Länder which already contain the appropriate regulations
shall not be affected.
Section 95 Special arrangements for defence matters
If a state of defence
or a state of tension has been declared, the following can be dispensed with in
case of defence matters: hearing of participants
(section 28, paragraph 1); confirmation in writing of an administrative act (section
37, paragraph 2, second sentence); written statement of grounds for an
administrative act (section 39, paragraph 1). In derogation of section 41,
paragraph 4, third sentence, an administrative act shall be deemed to have been
promulgated in these cases on the day following the date of announcement. The
same shall be valid for the other applicable regulations pursuant to Article
80a of the Basic Law.
Section 96 Transitional proceedings
(1) Proceedings which have already begun
shall be concluded according to the provisions of this Act.
(2) The admissibility of a legal remedy
for decisions issued before this Act came into force shall be governed by the
provisions formerly in effect.
(3) Time limits which began before this
Act came into force shall be calculated according to the provisions formerly in
effect.
(4) The provisions of this Act shall be
valid for the refund of costs in preliminary proceedings if the preliminary
proceedings have not been concluded before this Act enters into force.
Section 97 Amendment of the Code of
Administrative Court Procedure
[Verwaltungsgerichtsordnung] - revoked
Section 98 Amendment of the Law
Concerning Federal Long-Distance Highways
[Bundesfernstraßengesetz] (revoked)
Section 99 Amendment of the
Immissions Act [Bundes-Immissionsschutzgesetz]
(revoked)
[Bundes-Immissionsschutzgesetz] - revoked
Section 100 Regulations under state
law
The Länder shall
be able to make laws which
1. provide for a regulation
pursuant to section 16;
2. stipulate that for planning approval procedures
executed on the basis of provisions under state law, the legal effects of
section 75, paragraph 1, first sentence shall also be valid vis-à-vis the
necessary decisions under federal law.
Section 101 City-state clause
The Senates of the Länder
Berlin, Bremen and Hamburg are authorized to regulate local competence in
derogation of section 3 in accordance with the particular administrative
structure of their respective states.
Section 102 Transitional rule on
section 53
Article 229, section 6, paragraphs 1 to 4
of the Introductory Act of the Civil Code applies mutatis mutandis to the use
of section 53 in the version effective 1 January 2002.
Section 103 Entry into force
The above translation is unofficial. It was published by the Federal Ministry of the Interior. Reproduced with kind permission. This HTML edition by Nico Köppel and © 2009 Gerhard Dannemann. The contents of this page may be downloaded and printed out in single copies for individual use only. Making multiple copies without permission is prohibited.