When I was first asked to contribute to the book edited by Mariolina Eliantonio (forthcoming in Routledge 2022) Indirect Judicial Review in Administrative Law. Legality vs Legal Certainty in Europe, with a chapter on Germany I did not understand the legal issue. This is because the research questions posed by the editors ran counter to certain basic assumptions on which German administrative and constitutional law is built in (at least) three ways. Thus, Germany did not really ‘fit in’ the research design. But it is precisely this finding of persisting fundamental differences in the ‘administrative legal mindsets’ within the various European legal systems that make comparative European administrative law so interesting: You can take nothing for granted. So, what are these three basic assumptions that make the chapter on indirect judicial review in Germany somewhat different from the other chapters in this edited collection?
I. Strict Conceptual Differentiation between Executive Rules of General Application and Individual Administrative Decisions
The first basic assumption would be that in German law administrative rules of general application (executive norms) and individual administrative decisions (concerning a ‘single case’) are considered to be completely different in terms of form, function and procedure for their adoption. Therefore, traditional German administrative lawyers (like myself) would at least hesitate to put executive norms and individual administrative decisions under the common ‘umbrella term’ of ‘administrative act’ or ‘administrative decision’. The German ‘administrative act’ (as defined in the famous § 35 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz – VwVfG)) is only a (unilateral) individual administrative decision. When highlighting ‘administrative’ in this context I want to make clear that no German lawyer would consider decisions such as the dissolution of the Bundestag or the appointment of a member of government to be an ‘administrative act’ in this sense. These are ‘constitutional acts’ which cannot be challenged before the administrative courts. Similarly, it still sounds rather ‘unusual’ for a German lawyer to conceive executive rulemaking (at least by the federal or Land government) as an ‘administrative’ and not as a ‘governmental’ action of a more ‘constitutional’ than ‘administrative’ character (even if the ‘administrative nature of governmental rulemaking is mostly admitted today – but it still does not ‘feel right’). For this reason, I use the term ‘executive norms’ in my chapter to identify any form of those general applicable rules enacted by the executive (on the Federal level, the level of the German Länder, or at the local level) which can be considered as ‘hard law’ able to create directly applicable rights and obligations. In German law, nearly all executive norms in this sense are either Rechtsverordnungen (a term sometimes translated as ‘delegated legislation’, ‘statutory order’, ‘statutory instrument’ or ‘executive order’) or Satzungen (the term is mostly translated as ‘by-law’). Rechtsverordnungen are the expression of a derived normative power entrusted by a parliamentary statute to the authorities of the executive (mostly to (members of) government). Satzungen are enacted by those legal entities that have the right to self-government. These are primarily the municipalities whose Satzungen are adopted by the municipal council.
All this shows the fundamental distinction between individual administrative decisions and executive norms lies not only in the distinction between single case decision-making and rulemaking but also in whether the legal regime applicable to certain executive measures is considered to be of a more administrative or more constitutional nature. None of this is called into question by the fact that, of course, there is a grey area between individual decisions and general applicable rules. Examples of these ‘particular’ administrative decisions would be traffic regulation by traffic signs, temporary and localised security measures (even if they are directed towards everyone), the terms of use of a specific public facility (e.g. the regulation for the use of a particular public park) and, above all ‘spatial planning decisions’ (decisions of a public authority that harmonise, expand or restrict the possibilities of using specific plots of land located in the planning area and thereby have an impact on the rights and interests of property owners, authorised users or neighbouring residents). In German law, due to the strict conceptual differentiation between individual administrative decisions and executive norms, the ‘specificity’ of these ‘intermediate decisions’ are not denied. However, this only means, that a German lawyer would recognise their specificities so that their specific legal regime would not be used as a sort of ‘model’ for shaping the legal regime of neither single case decisions nor executive rulemaking.
This strict differentiation between the legal regime of executive norms and the legal regime of individual decisions justifies my choice to concentrate (only) on the plea of illegality as an argument against unlawful executive norms in my chapter. To put it briefly and clearly: There is no indirect but only direct review of individual administrative decisions under German administrative law.
II. Understanding Executive Rulemaking mainly as Delegated Legislation: A Constitutional Law Approach Focusing on the Hierarchy of Norms
The second particularity of German legal thinking to be highlighted here has already been alluded to above: Executive rulemaking is thought almost exclusively from a constitutional perspective: The counterpart of executive norms is parliamentary legislation. This means that executive rulemaking is considered mainly as ‘delegated legislation’ and that the consequences of incompatibility of executive norms with higher-ranking norms are in principle the same as the consequences of the incompatibility of parliamentary statutes regarding the constitution (or other higher-ranking norms, such as Land law being compatible with federal law). This is mainly considered to be a question of substantive law: A norm that is not compatible with higher-ranking norms cannot create rights for private persons, obligations against private persons, or powers or competences of public bodies. Such a norm is void ipso iure and ex nunc because of its formal and/or material illegality and anybody may rely on this voidness in any proceedings (so-called ‘dogma of nullity’). Thus, from a material law perspective, the court may only ‘recognise’ that a norm is incompatible with higher-ranking norms and conclude that the norm is void but it does not need to ‘quash’ it. This distinctive understanding of the hierarchy of norms and the separation of powers between the judiciary and the (parliamentary and executive) lawmaker has been developed step by step during the German Reich of 1871 and the Weimar Republic. In the 1920s it was (finally) also applied in case of the unconstitutionality of a parliamentary statute. As a sort of reaction to this, the Constitution of the Federal Republic of Germany, the ‘Basic Law’ (Grundgesetz – GG) of 23 May 1949 provides for a special preliminary ruling procedure ‘bundling’ indirect review of the constitutionality of parliamentary statutes at the German constitutional courts if an ‘ordinary court’ concludes that this statute is unconstitutional (Article 100 (1) GG). This aims to create greater legal certainty regarding parliamentary statutes. From a historical perspective, this is, however, an exception from the general rule that any court can and has to review the compatibility of a norm with higher-ranking norms. In administrative law cases this is even considered a component of the right to effective judicial protection against public authorities guaranteed by Article 19 (4) GG. Thus, administrative courts are obliged to quash individual administrative decisions which are based on illegal executive norms – there is no judicial discretion in this regard.
Conversely, there is no tradition of direct review of executive norms before administrative courts in Germany. There are cases in which direct review of executive norms before the administrative courts is provided for, namely in § 47 of the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO). But this provision is only applicable in specific situations (detailed in my chapter). So, to put it briefly: An indirect review of executive norms is the rule, and direct review is the exception. What is more: An indirect review of executive norms is always possible even if a direct action against this norm would not be admissible (any longer).
III. Iura novit curia and the German Unfamiliarity with Pleas for Illegality
The third basic assumption of German law at odds with a ‘plea’ of illegality under German administrative law is that there is no necessity for ‘pleas’ in this sense in any German court procedure: In Germany, indirect review of the legality of a norm is part of the ordinary business conducted by judges in any court hierarchy even if in practice the ‘plea of illegality issue’ has greater relevance in some proceedings (and before some courts) than in others. The concept of ‘iura novit curia’ plays a specific role here: it seems to be different in Germany from its understanding in most or at least many other (European) legal orders. Concisely, in Germany, iura novit curia is considered to be a general principle applicable in all court procedures and before all courts and regardless of whether the court procedure is contradictory or non-adversarial. It means that in any court procedure the courts can and have to apply all points of law on their motion (ex officio) and, thus, regardless of whether a party to the proceedings has invoked them. It is up to the judge to know the law and, therefore, to ‘gather’ the legal material applicable to the case. In principle, no legal argument by the parties is required in any proceedings before a German court since the application of the law is incumbent on the court irrespective of such an argument. This means too that a party may win a case for reasons the party never had thought of. It derives from this principle that any court has to verify on its motion whether the law it applies is valid and therefore may serve as a legal basis for a claim or an individual administrative decision. To verify the ‘existence’ of the law the court has to check if it was enacted in a formally correct way and if its substance is compatible with higher-ranking norms. This means above all, that even with regard to parliamentary statutes there is nothing like a legal presumption of constitutionality (however, the aforementioned specific procedure foreseen in Article 100 (1) GG concerning parliamentary statutes has to be respected). Concerning executive norms, this may lead, however, to situations where the court loses sight of the real object of the case. Such a risk has materialised above all in cases of municipal Satzungen on local taxes which are quite ‘error prone’ in formal as well as in substantive respects. This led to the adoption of rules in specialised administrative law that specific procedural errors may become irrelevant after the elapse of certain time limits so that (only) these errors may not be invoked by anyone thereafter. However, these rules only apply in specific cases and do not solve the problem as a whole.
IV. To wrap it up …
These explanations have hopefully clarified why the problems discussed under the heading of ‘plea of illegality’ in other countries are not discussed in Germany at all. Conversely, the linkage of the ‘plea of illegality issue’ with the question of the consequences of the unconstitutionality of parliamentary statutes seems to be a quite unique ‘German feature’. This is due to the fact that the whole issue is looked at from a totally distinct perspective by German lawyers. This has mostly historical reasons but is also and especially a consequence of the wide access to constitutional court review under the German Constitution. Thus, as shown in my chapter, the ‘plea for illegality issue’ is not a specific issue of administrative court procedure law but of general court procedure law applicable to all ‘ordinary’ courts (whether civil, criminal or administrative) on the one hand and constitutional court procedure law governing also the interaction of the Federal Constitutional Court with all the other German courts on the other.
Posted by Ulrich Stelkens, Professor of Public Law at the German University of Administrative Sciences Speyer
Suggested citation: U. Stelkens, “Hierarchy of Norms, Iura Novit Curia, and No Need to Plea for Indirect Review of Administrative Action – The Strictly German Legal Point of View”, REALaw.blog available at https://realaw.blog/?p=2392
