Objective and Subjective Profiles of the Administrative Jurisdiction

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Objective and Subjective Profiles of the Administrative Jurisdiction:
The Experience of the German System

Preliminary Observation

The following exposition is a summarized written version of the presentation of the German experience concerning „ Profili oggettivi e soggettivi della giurisdizione amministrativo” (Objective and Subjective Profiles of the Administrative Jurisdiction), discussed in the “Giornate di studio sulla giustizia amministrativo” in Rome on 30 January 2017. The conference was directed by Professoressa Maria Alessandra Sandulli. The text intends to give first answers to specific questions raised by the chairmanship, in particular questions concerning the distribution of competences between ordinary and administrative courts in public law disputes and the relationship between primary and secondary judicial protection, with special reference to public procurement law. A deeper analysis of the inquisitorial principle and of the prerequisites for interim relief will be presented by Dr. Otto Mallmann.

The text starts with a short introduction in the historical and conceptual background of the German administrative jurisdiction. The forming of legal institutions depends largely on their historical and cultural context and so does the understanding of legal principles and rules. Even if the legal language of different countries apparently uses similar terms for a legal institution, the connotations and its position in the legal system might be very different. This limits from the outset an easy and simple transfer of legal concepts or norms. Nevertheless, contrasting different legal systems and regulations always triggers a process of learning that helps to identify advantages and shortcomings of legal solutions and to make visible improvement potentials.

I. The Context

1. Historical Background

The development of the German administrative court system is closely linked to the emergence of a modern administrative law in the second half of the 19th century and to the concept of Rechtsstaat (Stato di diritto)[1]. According to the liberal political thinking, a clear public-private law divide was to help better control the public power and protect the rights of the citizens. First in Baden (1863) and Prussia (1872/75), soon in the other German territories, independent administrative courts were created that exercised second instance control over the Public Administration in specific categories of public law disputes; the first instance was still formed by specialized control organs of the Administration itself. Thus, in contrast to the traditional French model, the judicial function was not allocated to a council of state, which, conceptually part of the Administration, carries out simultaneously consultative tasks. The new administrative courts were independent and in this respect on an equal footing with the courts of the so-called ordinary jurisdiction, i.e. the courts for civil and criminal law matters. The administrative jurisdiction of Baden clearly followed a subjective approach; the Prussian Higher Administrative Court (Preußisches Oberverwaltungsgericht) showed elements of both, the subjective and the objective principle. While the civil procedure law provided for the principle of production of evidence by the parties (Beibringungsgrundsatz), the administrative procedure law maintained the investigative or inquisitorial principle (Amtsermittlungsgrundsatz or Untersuchungsgrundsatz), i.e. the investigation of the facts by the court ex officio, although it was not totally clear in the Prussian case in the beginning.

2. The present situation

The present three-tier system of the German (general) administrative jurisdiction[2] is to implement article 19 par. 4 of the German Basic Law, which enshrines the fundamental right of all persons to an effective and complete judicial protection against violation of their rights by any act or any other behavior (including inactivity) of the public power[3]. This is what the procedural principles, the system of admissible claims, and the instruments of interim relief specified in the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung)[4] are grounded upon. In order to guarantee an effective protection of the individual rights and a decision based on correct facts, the administrative court procedure follows the principle of investigation ex officio (inquisitorial principle), i.e. the court investigates on its own initiative.

As a rule, the admissibility of an action brought before the court, presupposes a “subjective public right” of the plaintiff. However, this subjective approach does not prevent that many cases, which in other countries, like in Italy, are considered under the aspect of legitimate interests, fall in the scope of application of subjective rights. According to the German jurisprudence and doctrine, subjective rights can be derived from every norm of public law that intends to protect interests of an individualizable group of persons (so-called Schutznormtheorie), irrespective whether the same norm also (simultaneously) aims at the safeguard of public interests[5]. Thus, the neighbor of an estate, where the owner wants to build a house, is entitled to raise an action against a building permit that does not respect a legal norm, which can be interpreted as aiming at the protection of interests of the neighbor, such as the requirement of a minimum distance to the next building. Furthermore, the subjective approach has been relativized by increasing specialized laws that allow for altruistic actions of associations (e.g. consumer groups, environmental groups). This development has been fostered by international and European law.

Access to the court requires reasonable time limits. The German Code of Administrative Court Procedure provides that rescissory actions (Anfechtungsklagen) and actions for mandatory injunctions against a negative decision upon an application (Verpflichtungsklagen: actions aiming at a pronouncement of the court that obliges the public authority to issue an administrative act) have to be lodged within one month after the administrative act has been notified, or, in case of a prior administrative objection procedure, within one month of service of the decision on the objection. The time limit of one month only applies, if the person concerned has been informed in writing or electronic form about the admissible remedy, about the court where the action is to be lodged and about the time limit. If the information has not been provided or has been incorrectly provided, the filing of the action is admissible within one year of service or announcement. It goes without saying that the time limit is also inapplicable to actions for mandatory injunction if they are directed against an inactivity of the public authority. These rules have a disciplinary effect on the administrative authorities and ensure adequate access to the court.

II. Public Law Disputes: Competences of the Administrative Courts and Competences of the Ordinary Jurisdiction

In the German legal system, public law is defined as the sum of legal norms whose addressees are necessarily, at least on one side of the legal relationship, the State or one of its subdivisions. This criterion is near to the “clauses exorbitantes du droit commun”, which, according to the French jurisprudence and doctrine are, alongside the criterion of “service public”, relevant for the identification of public law[6].

In principle, there is a clear delimitation between the judicial competences for private law disputes on one hand and public law disputes on the other in Germany: All public law disputes go the administrative courts (article 40 par. 1 of the Code of Administrative Court Procedure[7]), all private law disputes to the ordinary courts (article 13 of the Court Constitution Act[8]). However, there are important exceptions from this rule. For historical reasons, in particular stemming from the influence of the theory of the fisc (Fiskustheorie: the State as an economic agent comparable to a private asset holder), claims concerning State liability and compensations for expropriations and for violations of rights are still attributed to the ordinary courts. But is has to be noted that, if an illegal administrative act, which was already executed, is annulled by the administrative court, this same court will state that and how the administrative authority has to countermand execution (so-called Folgenbeseitigungsanspruch).

Other important exceptions from the competence of the administrative courts for public law disputes concern competition law, in particular anti-trust law and public procurement law. In these fields, the ordinary courts will have the final decision about disputes. In the case of the award of a public contract, the amount of which exceeds the corresponding threshold of the relevant EU-law, the review will be carried out by public procurement tribunals (Vergabekammern), which exercise their functions independently and in a quasi-judicial procedure, but are not tantamount to courts (cf. articles 155 to 169 of the Act against Restraints of Competition – Gesetz gegen Wettbewerbsbeschränkungen[9]). Before filing an application with the tribunal, the applicant, when he or she becomes aware of the violation of public procurement provisions during the award procedure, has to raise a complaint to the contracting entity within 10 days. Upon notification from the contracting entity that it is unwilling to redress the complaint, the applicant has to present the application before the tribunal within 15 days[10]. The public procurement tribunal investigates the facts ex officio. Against the decision of the tribunal, immediate appeal is admissible. The immediate appeal shall be decided by the Higher Regional Court having jurisdiction at the seat of the public procurement tribunal.

The question raised in the Puligienica-Case (C-689/13), which was decided by the European Court of Justice by judgement of 5 April 2016[11], does not affect German law. There is no legal rule according to which a main action for review brought by a tenderer with a view to excluding another tenderer, can be dismissed on the ground that the counter claim lodged by the other tenderer must be examined first. A reason for the lack of such provision might be that the application of the inquisitorial principle in the control procedures ensures a complete and coherent investigation, so that the different perspectives are combined in one procedure. Consequently, according to article 162 of the Act against Restraints of Competition, parties to the tribunal proceedings are “the applicant, the contracting entity and the undertakings the interests of which are severely affected by the decision and which are therefore admitted”.

III. The Primacy of Primary Judicial Protection

The administrative courts grant primary judicial protection by annulling administrative acts or by obliging an administrative authority to issue an administrative act or to carry out another performance or to refrain from an act. Primary judicial protection is generally the most effective form of protection and control. In German law, persons affected by an administrative act or other forms of administrative activity or omission therefore have to seek first and above all protection of the administrative courts. This principle is reflected in article 839 par.3 of the German Civil Code (Bürgerliches Gesetzbuch[12]) which reads as follows:

“Liability for damage does not arise if the injured person has intentionally or negligently failed to avert the damage by having recourse to appeal.”

Hence, it is not up to the claimant to choose either primary or secondary protection. Only if primary protection is granted too late or cannot prevent damage, secondary judicial protection comes into play. Equally, in case that primary protection would have been admissible, but the plaintiff missed to file an action before the administrative court without any fault, he or she can, according to the prevailing opinion in the jurisprudence[13] and doctrine[14], still bring an action for damages before the ordinary courts. This appears to be consequent because article 839 par. 3 of the Civil Code explicitly requires intention or negligence. Another question is, if the prerequisites for liability are met. The right to claim compensation based on a breach of an official dutyincumbent upon the civil servant in relation to the plaintiff expires three years after obtaining knowledge of the facts on which the claim is founded.

As far as public contracts are concerned, the amount of which exceeds the corresponding threshold of the relevant EU-law, the Act against Restraints of Competition provides for a special liability rule, a particular claim for damages arising from reliance (article 181, former article 126):

“If the contracting entity has violated a provision intended to protect undertakings, the undertaking may claim damages for the costs incurred in connection with the preparation of the tender or the participation in a procurement procedure if, without such violation, the undertaking would have had a real chance of being awarded the contract after assessment of the tenders, and provided that such chance was impaired as a consequence of the violation. Further claims for damages shall remain unaffected.”

This provision does not apply to public contracts, the amount of which remains below the threshold of the EU-law, i.e. for the largest number of contracts. However in both cases, contracts with a value greater than the threshold for application of the EU-law and contracts with a value below the threshold, liability can arise from violation of precontractual obligations. Given the requirements of culpa in contrahendo, the damages comprise always the amount of the negative interest of the tenderer (i.e. the cost of preparing the tender), under exceptional circumstances even the amount of the positive interest (i.e. the lost profit). In the latter case, the claimant has to prove that the contract necessarily would have been awarded to him or her, if the culpable violation of the procurement rules would not have taken place.

IV. Conclusion

After the Second World War the German administrative jurisdiction underwent an early and deep process of modernization. The Code of Administrative Court Procedure of 1960 has offered all procedural instruments for an effective and complete judicial protection against violation of individual rights by any act or any other behavior of the executive power. However, until today not all inconsistencies, which result from historical path dependencies, have been eliminated. Some important categories of public law disputes, such as public procurement law and compensation claims, have remained within the competence of the ordinary courts; at the same time, these areas of law are still lacking a coherent codification. As far as the subjective approach of the judicial protection by the administrative courts is concerned, a gradual integration of objective elements triggered by international treaty law and EU-law can be observed; given that the concept of subjective public rights has been interpreted by the courts traditionally in a broad sense, the system until now has been flexible enough to adapt to most of the supranational requirements without deeper structural modifications of the court procedure. Since other European countries have simultaneously adapted their law to subjective requirements, in particular with regard to an effective interim relief for the citizens, we are witnessing a process of convergence in Europe. This convergence makes it even more interesting to draw inspiration for the reform discussions out of the comparison of our national laws.

Speyer, 14 February 2017

Prof. Karl-Peter Sommermann

Professor of Public Law, Political Theory and Comparative Law at the GermanUniversity of Administrative Sciences Speyer

(Professore ordinario di Diritto pubblico, Teoria politica e Diritto comparato presso l’Università di Scienze Amministrative di Speyer)

Pubblicato 20 marzo 2017

[1] Cf. Otto Bähr, Der Rechtsstaat, Kassel/Göttingen 1864, p.12: „Law and Statutes can gain real importance and power only if they find a judgement ready to put them into effect.“

[2] Special administrative jurisdictions are formed by the social courts and the tax courts.

[3] With regard to the executive power, the Federal Constitutional Court (Bundesverfassungsgericht) has concretized article 19 par. 4 in this sense very early, cf., e.g., the relevant decisions of 12 November 1958 (BVerfGE 8, 274,326), 12 January 1960 (10, 264, 267 et seq.) and 19 June 1973 (BVerfGE 35, 263, 274).

[4] Verwaltungsgerichtsordnung of 21 January 1960, in the version published on 19 March 1991 (BGBl. 1991 I, p. 686), last amended by Article 17 of the Act of 22 December 2016 (BGBl.2016I, p. 3106).

[5] Historically, the German doctrine of the subjective public rights was developed by Otto Sarwey (1825-1900), Georg Jellinek (1851-1911) and Ottmar Bühler (1884-1965). For the conceptual foundations oft he Schutznormtheorie see in particular Ottmar Bühler, Die subjektiven öffentlichen Rechte und ihr Schutz in der deutschen Verwaltungsrechtsprechung, Berlin et al. 1914, p 42 et seq.

[6] This is of special relevance for the classification of contracts concluded by the public administration, cf. Pierre-Laurent Frier/Jacques Petit, Droit administrative, 9th ed., Paris 2014, p. 388 et seq.

[7] See note 3.

[8] Gerichtsverfassungsgesetz of 12 September 1950, in the version published on 9 May 1975 (BGBl. 1975 I, p. 1077), last amended by Article 2 par.2 of the Act of 22 December 2016 (BGBl. 2016 I, p. 3150).

[9] Gesetz gegen Wettbewerbsbeschränkungen of 26 August 1998, in the version published on 26 June 2013 (BGBl. 2013 I, p. 1750, 3245), last amended by Article 5 of the Act of 13 October 2016 (BGBl. 2016 I, p. 2258).

[10] See in detail article 160 of the Act against Restraints of Competition.

[11] ECLI:EU:C:2016:199.

[12] Bürgerliches Gesetzbuch of 18 August 1896, in the version published on 2 January 2002 (BGBl. 2002 I, p. 42, 2909; 2003I, p. 738), last amended by Article 3 of the Act of 24 May 2016 (BGBl. 2016 I, p. 1190).

[13] Cf. the judgement of the Federal Court of Justice of 15 November 1990 - III ZR 302/89 -, BGHZ 113, 17 et seq.

[14] Cf. Fritz Ossenbühl/Matthias Cornils, Staatshaftungsrecht, 6th ed., München 2013, p. 93 et seq.