German Administrative Law Research Articles

Dogmatics of administrative law

The basic terms and definitions inherent in Soviet administrativelegal science are examined; dogmatic concepts currently used in everyday life in domestic science and teaching need to be improved; in many cases they are not applicable in the existing political and legal realities. The concept of “public administration” does not correspond to its purpose in the conditions of separation of powers, constitutional and legal guarantees for the activities of executive authorities, pluralism of various forms of ownership, especially non-public ones. Using the example of teaching activities in the field of German administrative law, the need to distinguish between various training courses is shown, first of all, substantiating the theoretical postulates of German administrative law science — Verwaltungslehre, Polizeiund Ordnungsrecht, from training courses devoted, just like in domestic administrative law , the study of the institutions of the Special Part of Administrative Law — Besonderes Verwaltungsrecht. The dogma of “public administration” is now being replaced by the study of the theoretical postulates of the executive branch, with special attention should be paid to the generality and subordination of public and civil regulation in various spheres of government influence, primarily in relation to property regulation, which is especially significant in conditions of the dominance of public property relations , based on the hierarchical subordination of their participants, and not regulated by civil law.

Традиционализм и прагматизм в административно-правовой науке

The features of reforming the fundamental institutions of administrative-legal science in modern political and legal conditions are considered. The conceptual apparatus of administrative law currently does not meet its purpose, especially in the category of “public administration”. Using the example of German administrative law, the coexistence of various educational courses is substantiated, including “the doctrine of management”, “general administrative law”, “police law” and “public order law”, which are independent academic disciplines. Corresponding differences are also accepted in Germany when conducting scientific research. In the new political and legal conditions, the subject of administrative law lies primarily in the study of the basic institutions of executive power, while theoretical postulates must correspond to their pragmatic purpose. The subject of study of the new course of administrative law should be not only its traditional categories, but also the concepts of “public property relation”, “special public body or organization”; in relation to the latter, the study of the organizational and legal forms of activity of state corporations in their relations with the executive power.

Proof in Administrative Law: the German Perspective

German administrative law is characterized by the idea that the authorities and, in the case of a lawsuit, the administrative judges have sovereignty over the investigation of the facts ‐ the so-called principle of ex officio inquiry (Section 1). In the relationship between the official and judicial investigation of the facts, it is striking that the judicial duty to investigate is not limited by the official duty to clarify the facts. This shift in the direction of a judicial right of final decision, also with regard to the factual basis of administrative decisions, derived from the German Constitution (Article 19(4) Grundgesetz) can probably only be explained by the historical background of National Socialist despotism. The article reveals that the instruments of evidence collection (Section 2), the consideration of evidence (Section 3), the evidential standard (Section 4) and the burden of proof (Section 5) are based on the principle of ex officio inquiry. This principle is based on the assumption that only a perceivable set of facts can be established. Therefore, practice and sectoral administrative laws show that in areas where obtaining knowledge is particularly difficult, the principle of ex officio investigation and the law of evidence based on it must be modified and, in particular, strong participation of the parties in obtaining the facts must be made possible. At the same time, the German law of evidence is based on theories and instruments of civil procedural law, which is characterized by the principle of production of evidence. Against this background, the article aims to illustrate that, contrary to the first impression, German administrative law does not implement the principle of official investigation in its pure form, but it is understood in a refined open and area-specific manner.

ЗВУЖЕННЯ ПРАВ МЕЖ РОЗСУДУ ЗА ВТРУЧАННЯ У ПРАВА І СВОБОДИ ЛЮДИНИ – ЗАКОН УКРАЇНИ «ПРО АДМІНІСТРАТИВНУ ПРОЦЕДУРУ» І СУДОВА ПРАКТИКА У ФРН СТОСОВНО ЗВУЖЕННЯ МЕЖ РОЗСУДУ

Goal. To determine the conditions and limitations during the application of administrative discretion, which are determined by the Constitution of Ukraine. Methods. The scientific provisions presented in the article are based on the use of general and special methods of scientific knowledge (logical-co-semantic method, comparative-legal, systematic, methods of analysis and synthesis, etc.), the choice of which was determined by the purpose and tasks of the research, its object and subject. The results. The article emphasizes that at the initial stages of the formation and development of European, in particular, German administrative law, the narrowing of discretion was not discussed in legal literature and law enforcement practice. However, the situation began to gradually change due to the strengthening of the importance and weight of fundamental rights, the observance of which during the exercise of discretionary powers is currently a mandatory standard. The author analyses the content of the duty of the administrative body to observe the human rights and freedoms guaranteed by the Constitution of Ukraine within the limits of administrative procedures. It is emphasized that for its implementation, the administrative body must clarify all the circumstances of the case, acting on its own initiative. The duty to establish the circumstances of the case is limited by what the administrative body is able to do and what is expedient in each specific situation. Particular attention is paid to the question of how the legal position of the addressee of the planned administrative act (action) should be taken into account in view of the provisions of the Constitution when making a decision on the basis of discretional powers. The author analyses the content of the following constitutional (fundamental) rights and principles (the right to equal treatment, proportionality) and formulates the positions that the administrative body should consider Conclusions. The central criteria for observing the rights and freedoms of the addressee of the event are the duty of equal treatment and the principle of proportionality. Since the reduction of discretion or narrowing it to zero is the result of the influence of the rights and freedoms guaranteed by the Constitution, the decision of an administrative body is considered legal if it was adopted within the available limits of discretion. And any other decision will be considered a significant interference with the addressee’s rights and freedoms and will no longer be proportionate. The same applies to the obligation to treat similar cases similar and treat different cases differently, because if the discretion of the administrative body is limited or reduced to zero, any other decision is a violation of the duty of equal treatment. These two criteria are clear requirements that administrative bodies must comply with when making decisions, and the verification of compliance with these criteria is carried out by administrative courts in accordance with Art. 2 KAS. This control applies to most cases of abuse of discretion, and therefore complex constructions of abuse of discretion are necessary only in some very special cases.

The Issue of Public Officials’ Promises in the Light of Philosophy of State

The legal nature of promises of state bodies has not become a subject of discussion in the theory and philosophy of Soviet and Post-Soviet Law. Issues related to the promise/assurance of an administrative act and its legal consequences are studied in more detail in the doctrine of German administrative law. Moreover, positive legal provisions on the promise of an administrative act exist in Germany. The results of studying the promise in this article will be presented in a deductive methodology (from general to specific). The article will present: First, within the framework of the types of law enforcement, theoretical approaches about the legal nature of the promises made by officials, their place in the system of sources of law (philosophical and legal plane); Second, the essence of the promise made by an official as a performative act, types of promises and connection with the doctrine of legal expectation (theoretical and legal plane); Third, judicial practice of consideration and resolution of disputes related to the promise made by administrative bodies. The authors conclude that the fulfillment of public promises of high-ranking officials is not only a moral duty, but also causes political and legal consequences.

PUBLIC LAW CONTRACT IN GERMAN ADMINISTRATIVE LAW

The article focuses on the public-law contract in German law. It considers the relationship between the public-law contract and the administrative act in the context of the principle of freedom of choice of form of action of the administrative authorities. It analyses the legal basis of the public law contract. First of all, these covers § 54 of the Administrative Procedure Act as the central norm of the public law contract. Issues relating to the limitations in the enforcement of § 54 are also outlined. In addition, the constitutional background of the public contract is discussed. Particular attention is paid to the principle of lawfulness of government action and its two main components: the rule of law and the principle of compliance with the law, which have a varying impact on the public-law contract. The article also considers the dual nature of public-law contracts, which is primarily due to the fact that the public-law contract itself is directly a figure of both procedural and substantive law. Distinctive features of a public-law contract in the context of its differentiation from the other forms of implementation by administrative authorities of their powers are analyzed. First of all, it affects the administrative act on demand as the closest to the public-law contract type of its external manifestations. The same applies to an administrative act with additional conditions, since it has misleading characteristics similar to a contractual relationship. The subject matter of the contract itself was analyzed as a decisive factor enabling it to be classed as a contract entered into in the field of public administrative law. The role of the theory of special law and its impact on the process of identifying the public law contract was examined. In this regard, the limping mutual contract as a special form of a public-law contract has been defused. A special place in the article is given to the issues of terminology. It is concluded that Ukrainian administrative law has no analogues and similar approach not only to the question of classification but also to the correlation of the considered notions developed by German administrative law.

Фиктивные (подразумеваемые) административные акты: перспективы интеграции в российское законодательство

The article analyses the category of a fictitious administrative act. It is pointed out that the term “fictitious administrative act” borrowed from German administrative law is not appropriate for Russian law. As a substitute for it, another term is offered — “implied administrative act”. It is argued that the implied administrative act, being a legal fiction, is not an administrative act in the proper sense of the word. Consequently, although the rules on the invalidity of administrative acts may be applied to implied administrative acts, not all grounds of invalidity may be applicable to them. As a result of the analysis of foreign legislation, possible models of using of implied administrative act are presented. The paper demonstrates that the legislator can establish a positive or negative fictitious conclusion either as a general rule or in relation to individual administrative procedures. The objectives of introducing the category in question into the legislation are also determined. The article shows that the goals of normative fixation and the use of positive and negative fictitious conclusion in legal practice are different. The purpose of a negative fictitious conclusion is to eliminate the state of legal uncertainty in cases where challenging the inaction of an administrative body for one reason or another is difficult. At the same time, a positive fictitious conclusion generally leads to simplification and acceleration of administrative procedures and contributes to procedural savings. Taking into account foreign experience, the paper concludes that it is advisable to introduce a positive implied administrative act into Russian legislation to simplify and speed up administrative procedures. General recommendations on possible ways of its introduction are given, in particular, it is indicated that it is unacceptable to establish such a condition as a general rule.

Chinese Legalist Analysis of German Administrative Law—Tripolar Action Modes and Reconceptualized Rulership [Pre-Publication Draft

Chinese Legalist Analysis of German Administrative Law—Tripolar Action Modes and Reconceptualized Rulership [Pre-Publication Draft

Legislation on Administrative Procedures: The German Experience

This article provides an overview of the main provisions of German administrative procedural law. It outlines in a systematic way the particularities of administrative procedures and the possibilities for a citizen to seek administrative remedy. The essence of the basic principles of administrative procedural law as well as the particularities of temporary legal protection and the possibilities for an extrajudicial appeal against an administrative act are explained to the reader. The Author points out that administrative proceedings in Germany are, in a broad sense, any decision-making activity of a public administration body. According to the German Administrative Procedure Act, an administrative procedure in the sense of the law is an externally imposed activity of the administrative authorities that is aimed at verifying the conditions, preparing and issuing an administrative act or entering into a public-law contract. At the same time, the activities of a public administration body are not bound by a specific form, unless there are specific rules on the form of procedure. It is stated that current German administrative law distinguishes between an administrative act and a general order. The latter is also an administrative act, the range of addressees, however, is wider. An administrative act according to the law is any order, decision or other authoritative action of an administrative body aimed at regulating a single case in the field of public law and having direct legal consequences of an external nature. A general order is an administrative act, which is addressed to a certain or defined by general features, or which concerns the public-law properties of a thing or the use of it by the public. The author notes that an administrative act must be specific in content, justified and announced to the participants in the proceedings. As long as the act has not been declared, it is invalid. An administrative act is valid from the moment it is announced, unless it itself provides otherwise. It continues in force until it is revoked, cancelled, terminated by a deadline or for any other reason specified in the law. Based on the analysis, it is concluded that the lack of a law on administrative procedures in Russia is a negative indicator of the modern Russian administrative legal system.

Zakon o upravnom postupku i e-usluge u Letoniji

The Article provides an insight in the scope of regulation of the Latvian Administrative Procedure Law and the use of e-services and other means of electronic communication in administrative procedure. The scope of regulation of the Latvian Administrative Procedure Law is mainly determined by the definition of an administrative act, which, in turn, is derived from the German administrative law. The adoption and application of the Administrative Procedure Law is generally regarded as very successful example of transformation of the legal system. For the past ten years the government has introduced various e-services and other electronic tools designed to facilitate electronization of administrative procedure. The article outlines basic legal regulation of these tools, as well as gives a short insight towards recent impact of the pandemic of COVID-19 on use of electronic communication between the government and private persons.

E-Government in German Administrative Law and its Problems

E-Government in German Administrative Law and its Problems

Generalklauseln im Datenschutzrecht

German data protection laws all provide for provisions that allow public authorities to process personal data whenever this is ‘necessary’ for the respective authority to fulfil its tasks or, in the case of sensitive data in the meaning of art. 9 GDPR, if this is ‘absolutely necessary’. Therewith, in theory, data protection law provides for a high degree of administrative flexibility, e. g. to cope with unforeseen situations like the Coronavirus pandemic. However, these provisions, referred to in German doctrine as ‘Generalklauseln’ (general clauses or ‘catch-all’-provisions in English), are hardly used, as legal orthodoxy assumes that they are too vague to form a sufficiently clear legal basis for public purpose processing under the strict terms of the German fundamental right to informational self-determination (art. 2‍(1), 1‍(1) German Basic Law). As this orthodoxy appears to be supported by case law of the German Constitutional Court, legislators have dutifully reacted by creating a plethora of sector specific laws and provisions to enable data processing by public authorities. As a consequence, German administrative data protection law has become highly detailed and confusing, even for legal experts, therewith betraying the very purpose of legal clarity and foreseeability that scholars intended to foster by requiring ever more detailed legal bases. In our paper, we examine the reasons that underlie the German ‘ban’ on using the ‘Generalklauseln’. We conclude that the reasons do not justify the ban in general, but only in specific areas and/or processing situations such as security and criminal law. Finally, we list several arguments that do speak in favour of a more ‘daring’ approach when it comes to using the ‘Generalklauseln’ for public purpose data processing.

獨逸 行政法方法論의 發展과 變化 - 독일 행정법학의 성립부터 신행정법론의 등장까지 -

행정법학에서도 방법론에 관한 관심이 점차 높아지고 있다. 비교법적 연구를 통해 행정법방법론의 현주소와 새로운 발전방향을 모색하는 것이 필요하다. 독일의 행정법학은 초기에 일본을 거쳐 한국의 행정법학에도 적지 않은 영향을 주었다. 독일 행정법방법론의 형성과정과 발전, 그리고 최근의 변화에 관하여 살펴보는 것은 의미 있는 일이다. 전통적으로 독일의 행정법학은 실정법 위주의 해석론적 법학방법론에 바탕을 두고 발전하여 왔다. 초기에는 국가학적 방법론이 유행하였으나, 이후에는 오토 마이어(Otto Mayer), 플라이너(Fritz Fleiner) 및 발터 옐리네크(Walter Jellinek) 등이 법실증주의자들이 발전시킨 법학방법론이 주도하기 시작하였다. 그러나 오토 마이어 이전에도 프리드리히 프란츠 마이어(Friedrich F. Mayer), 게오르크 마이어(Georg Mayer) 등의 고전학파 행정법학자들이 독일 행정법학의 형성에 기여한 점을 간과할 수는 없다. 이러한 점에 대해서는 국내 행정법학계에 잘 알려지지 않은 사실이다. 20세기 후반에도 독일에서는 법실증주의자에 의한 법학방법론이 여전히 큰 영향을 미치고 있었다. 한스 볼프(Hans J. Wolff), 오토 바호프(Otto Bachof) 등이 이러한 법학방법론을 계승하였다. 다만, 당시에 포르스트호프(E. Forsthoff)는 이러한 주류적 흐름과 거리를 두면서 급부국가와 생존배려를 중심으로 독자적인 행정법이론을 발전시켰고, 사회학적 · 경제적 · 정책적 분석을 접목시키고 있었다. 21세기에 들어와서 독일에서는 행위학, 결정학, 조종학 등으로 대표되는 새로운 행정법학의 흐름이 나타나게 되었다. 이러한 새로운 행정법학(신행정법학)에서는 종전에 지배적이던 해석론 중심의 법학방법론을 지양하고, 학제적 연구를 강조하고 있다. 또한 이를 연결할 수 있는 핵심개념으로 협력이나 민영화, 조종(Steurung) 등을 강조하고 있다. 행정법학의 새로운 동력을 얻기 위해서는 다양한 방법론이 접목되어야 한다. 해석론적 법학방법론 외에 비교법적 법학방법론, 법제사적 법학방법론, 입법론적 법학방법론, 그리고 학제적 법학방법론이 접목되어야 한다. 국가는 현실을 도외시하고 규범으로만 파악되기 어렵다. 행정법학은 규범 없이 성립되기가 어렵지만, 현실을 배재한 행정법도 존립하기 어렵다. 전통적인 행정법방법론이 규범해석 중심의 학문이라는 점은 부인할 수 없다. 그러나 법학은 현실적인 학문이다. 미래세대의 법학은 알고르즘 기반의 인공지능(AI)과 제4차 산업혁명의 등장으로 새로운 도전에 직면할 것이다. 이러한 급속한 시대의 변화를 규범으로만 대응하기가 어려운 상황이 올 수도 있다. 차세대의 행정법학에서는 새로운 도그마틱(Dogmatik)과 다양한 학제적 연구가 시도될 필요가 있다.

Administrative Law and Dogmatic

전문적 학문분과가 모두 그렇듯이 행정법학 또한 전문가들 사이에서만 통하는 공통의 언어를 가지고 있다. 그런 전문 용어는 행정법 도그마틱을 표현하고 있다. 시대에 따라 변화는 있지만 행정법의 도그마는 여전히 굳건하며 이를 통하여 행정법은 해석되고 적용되며 발전한다. 이 글은 행정법 도그마에 대한 논의를 중심으로 하여 현재 한국 법학이 당면하고 있는 과제와 대안을 이야기하고자 하는 목적으로 작성되었다. 최근 행정법 도그마틱에 관하여 연구자들의 연구 성과물이 많이 나오고 있는 점은 고무적이다. 이는 행정법학의 방법론을 재검토하고 이를 기초로 행정법학의 논의를 풍부하며 또한 변화하는 사회의 수요에 대응하려는 의도를 가지고 있다. 도그마틱에 관한 논의는 행정법학을 예리하게 만들고 또한 반성적으로 만든다. 도그마틱이라는 용어는 원래 철학에 대비되는 교조나 독단이라는 뜻이 있지만 이 글에서는 행정법학의 방법론과 사상체계라는 넓은 의미로 사용하였다. 독일 행정법학계에서는 종래의 행정법학 방법론에 대한 반성에서 조종과학의 한 분야로서의 행정법학의 가능성을 주목하고 있다. 이는 종래 적법/위법의 이분론을 극복하고 사회가 요구하는 결과를 보다 효율적으로 가져오는 행정법을 지향하는 방법이다. 이를 위하여 행위중심의 행정법 대신에 행위자 중심, 그리고 사법과 함께 행정과 입법을 모두 시야에 넣는 연구의 방법을 모색한다. 독일 행정법학계는 유럽연합의 결성과 이로 인한 독일 국내 행정법의 위치 변화에 주목하면서 이에 대한 대안으로 신행정법을 모색하였다. 한편 우리는 독일과 같은 상황은 아니지만 행정법학은 변화가 필요하다. 그 이유는 행정법학의 상대적인 위상 저하와 함께 수험행정법이 제기하는 도전 때문이다. 이미 행정법 이론 안에도 계획행정과 비례원칙 등 사회의 변화에 대응하여 가치를 조정하는 수단이 있다. 그러나 법원은 아직 종래의 재량판단이라는 협소한 적법성 통제 원리에 머무르고 있다. 그 결과 행정법은 전형적인 권리구제 사안에 매달리고 정작 사회의 큰 변화나 미래에 대한 대응은 하지 못하고 있다. 행정법학은 전통적 방법론을 중심으로 법규의 정확한 해석과 적용을 위한 노력, 비교법적 연구를 통하여 제도를 정비하는 노력과 함께 당면하고 있는 문제의 해결에도 관심을 기울여야 한다. 행정법학은 종래의 도그마틱에 기초한 법해석학에 머물지 말고 정확한 사실과 법적 판단에 기반한 법학방법을 추구함으로써 사회의 변화에 대응하고 또한 다양한 법적 수요에 대응하여야 한다.Like all specialized academic disciplines, administrative law also has a common language spoken only among experts. Such jargon expresses administrative law dogmatic. Although there are changes according to the times, the dogma of administrative law is still strong, through which administrative law is interpreted, applied, and developed. This article was written for the purpose of talking about the problems and alternatives currently facing Korean law, focusing on the discussion on administrative law dogma. It is encouraging that researchers have recently shown a lot of research results on dogmatics in administrative law. This reexamines the methodology of administrative law, enriches the discussion of administrative law based on it, and also intends to respond to the changing needs of society. The discussion of dogmatic makes administrative law sharp and reflective. The term dogmatic originally means dogma or dogmatism in contrast to philosophy, but in this article it is used in a broad sense of the methodology and ideological system of administrative law. The German administrative law community is paying attention to the possibility of administrative law as a field of control science in reflection on the conventional administrative law methodology. This is a method of overcoming the conventional legal/illegal dichotomy and aiming for an administrative law that more efficiently produces the results required by society. To this end, instead of action-oriented administrative law, they seek a method of research that puts both administration and legislation in view with actor-centered and judicial law. German administrative law academia sought a new administrative law as an alternative to this, paying attention to the formation of the European Union and the resulting change in the position of German administrative law. On the other hand, we are not in the same situation as in Germany, but administrative law needs change. The reason is the relative decline of the administrative law and the challenges posed by the examination administration law. Already in the theory of administrative law, there are means to adjust values in response to changes in society such as planned administration and proportional principles. However, the courts still remain on the conventional principle of discretionary judgment. As a result, administrative law clings to typical rights remedies and is not able to respond to major changes in society or to the future. Administrative law should pay attention to solving the problems that are facing along with efforts to accurately interpret and apply laws and regulations, and to reorganize the system through comparative studies, centering on traditional methodologies. The recent crisis in administrative law appears to be the reinforcement of examination law along with the stagnation or contraction of administrative law. Administrative law should respond to changes in society and respond to various legal demands by pursuing a law method based on accurate facts and legal judgments, not just the conventional dogmatic-based legal analysis.

Stand und Entwicklung des Fachplanungsrechts im Spiegel der jüngeren höchstrichterlichen Rechtsprechung

The report surveys in two parts the development of the law on project-related planning and thus relates in particular to the planning and approval of space-consuming infrastructure projects such as traffic routes and power lines. For this purpose, German administrative law has long provided for the specific instrument of plan approval (Planfeststellung). In this context, the Federal Administrative Court has extensive first-instance jurisdiction and uses this to shape large parts of German approval law, including beyond the actual area of plan approval law, be it in terms of legal protection and procedure, be it with regard to the requirements of substantive environmental law. On the other hand, the revision of the law on environmental protection induced by the decisions of the Aarhus Compliance Committee and the European Court of Justice has been used by the German legislator to extend procedural specifics of the plan approval to other approval decisions of environmental relevance. This firstly indicates the contours of a general law on project approval and, secondly, the nature of the plan approval as an instrument for the implementation of projects in the public interest is more strongly emphasized.

The first German climate case

This article explains the first German climate case filed against the Federal Government in the Berlin Administrative Court in 2018 and decided in October 2019. The article identifies and examines the key elements of the decision of the Berlin Court and it places the legal issues of the case within the relevant framework of German administrative court procedure law, administrative law and constitutional law. The case evolved around the legally binding force of a cabinet decision of the Federal Government which laid down the German greenhouse gas emissons reduction target for 2020. Despite the fact that the application was dismissed for lack of standing, some important legal developments can be derived from the judgment, especially in relation to justiciability of the case and the state’s duty to protect fundamental rights under the German Basic Law (Grundgesetz) in the climate change context. Just after the judgment was delivered, the German Federal Parliament (Bundestag) adopted the first Federal Climate Protection Act in November 2019 and thus defined the state’s new climate targets in statutory form. This changed the legal landscape and claimants consequently abstained from appealing the judgment. However, the German Constitutional Court now has the opportunity to clarify further some of the legal issues that arose in this first German climate case from applying ‘traditional’ legal concepts to the challenge of climate change, if it decides to hear the constitutional complaint which was filed in 2020 against the Federal Climate Protection Act.

Preclusion in German administrative proceedings

The subject. The article describes preclusion in German Administrative Law. The purpose of the paper is to confirm or disprove hypothesis that the preclusion is an integral part of the administrative and judicial practice of Germany, despite its low efficiency. The main results and scope of their application. There are relations of between the constitutional principle of legal protection (Art. 19 Abs. of the Basic Law for the Federal Republic of Germany) and preclusion. It is shown that there are different types of preclusion in German Administrative Law, depending on the status of the administrative procedure. It can occur in the administrative process between citizen and the administrative authority and in the administrative court process. In both acts there is to differ between those who plea an infringement of their own rights and those who consider the rights of third parties. Examples for preclusion from different areas of the law like tax or environmental law are given. Another aspect is the difference between formal and material preclusion. While formal preclusion is limited to the administrative process and does not affect the administrative court case, material preclusion effects both acts, the administrative process and the court case. The next part concentrates on the limits set by the constitution and European law. A decision by the European Court of Justice and by the Federal constitutional court of Germany (Bundesverfassungsgericht) are presented to specify these limits. The ECJ has a stricter approach than the German constitutional court, which ruled, that preclusion does not violate the constitutional principles of legal protection and fair hearing. Nonetheless the ECJ also agreed laws that hinder abusive pleas. Conclusions. The last part contemplates the practicability of preclusion and concludes, that the effects are relatively modest and the target of acceleration is often not attained. However, the German model of preclusion has a disciplining effect on participants in administrative procedures and the judicial process; has firmly entered German administrative and judicial practice and does not contradict the constitutional guarantee of legal protection.

Migrationsverwaltungsrecht zwischen Beschleunigung und Effizienz

Migration law between acceleration and efficiency Efficiency and speed of decision making have been a recurrent theme of German administrative law reform since the 1970 s. Although migration law has long been the subject of acceleration efforts, this occurred largely outside the general efficiency discourse. In an effort to connect these two strands, this article first retraces the trends that the administrative efficiency discourse has undergone since the 1970 s and points out how the sectors of law driving it – environmental law, emission control, and economic regulation – as well as an economic paradigm have promoted an truncated understanding of efficiency as mere acceleration. In a second step, it shows that while the devaluation of procedure in the interest of speed does align with a German focus on subsequent judicial review, it neither does justice to the relevance of the procedure to the realization of fundamental rights, not to its specific performances: the development of substantive requirements, transparency, participation, legitimacy. Asylum law in particular has experienced a surge of acceleration measures since 2015, pushed by the consulting firm McKinsey. But its existential relevance for protection seekers and the particular dependency of the right to asylum on the asylum procedure require an especially rigorous examination. An efficiency concept geared merely toward acceleration cannot do justice to these specific challenges, as the McKinsey measures have demonstrated; the burden has simply been shifted on the courts. In its last part, this article therefore proposes a qualitative efficiency concept that bears in mind the entirety of the functions of the administrative procedure, takes into account the different requirements of the procedure in different sectors of law, and does not lose sight of the reciprocity between administrative and judicial procedure. Meanwhile, pilot studies from the Netherlands, Switzerland, and Germany show that a qualitatively efficient asylum procedure is not necessarily a slower or more costly procedure.

The concept of discretion in German administrative law and its separation from judicial discretion

The concept of discretion in German administrative law and its separation from judicial discretion

Implementation of the Concept of ‘Public Assets’ in the Latvian Legal System

The article analyses the problems of division between public and private legal relationships regarding the use of assets owned by public entities. Although most of the assets owned by public entities are managed within the framework of private legal relationships, some assets which are allocated for public use are treated as ‘public assets’, like rivers, the sea, public parks etc. The legal relationships arising out of the use of those assets are public legal relationships, reviewed by administrative courts in case of a dispute. The concept of ‘public assets’ has been implemented in the Latvian legal system from the German administrative law (Offentliche Sache). However, literal transplantation of the German concept has caused irregularities with the existing practices. Therefore, by case studies it is argued that a narrower approach should be used regarding the concept of public assets.