Why is a uniform, generally applicable Law on Administrative Procedure so important?

In the European understanding a general and fundamental Law on Administrative Procedure, which is designed on the principles of the rule of law, is of central importance to a democratic relationship of the state and its citizens.

With a uniform, generally applicable Law on Administrative Procedure, all authorities - whether at the state or local self-government level - receive generally applicable instructions on how they are to organise their decision-making processes in accordance with the rule of law.

The legal determination of uniform rules of the game for administrative procedures, renouncing different special regulations for different levels of government, thus ensures fairness and legal clarity, legal certainty and transparency for both the authorities and the citizens and it prevents arbitrariness and restricts corruption. Authorities and citizens are able to meet on an equal footing:

Authorities are obliged:

• to respect the rights of its citizens

• to fulfil their duties to the citizens

• to communicate with the citizens on an equal footing

• to treat the citizens in fair manner

• not to act arbitrarily

• to act transparently

• to give citizens the right to be heard before making a negative decision

• to explain their actions and decisions to the citizens

• to advise citizens on necessary administrative procedural steps

• to decide on the concerns of citizens in due time.

Citizens are given a legal position that enables them

• to claim their rights against authorities self-confidently

• to negotiate with authorities on an equal footing

• to claim their rights vis-à-vis authorities

• to recognise and demand the duties of authorities

• to be powerful against state arbitrariness

• to understand the actions and decisions of authorities

• to defend themselves against acts and decisions of authorities.

Why is such a Law on Administrative Procedure of particular importance for local self-government?

For democratic states that have or aspire to living decentralised structures and, like Ukraine and Germany, have ratified the European Charter of Local Self-Government, the particular importance of a Law on Administrative Procedure for local self-government is obvious:

The understanding of a decentrally organised state is that public services should be provided as close as possible to the citizens. This principle of subsidiarity is enshrined, for example, in Article 4 of the European Charter of Local Self-Government. It implies that public tasks should generally be carried out by the most local level of government. In the light of the European Charter of Local Self-Government the most local level is the local self-government level.

This means: In a democratic, decentralised state, the local self-government level is the most important for providing citizens with basic administrative services. It is here that a particularly large number of administrative procedures are carried out in a wide variety of task areas, which end with a decision in favour of or to the disadvantage of a citizen or a company. All these decisions must be made in accordance with the rule of law.

Transparent, comprehensible procedures and legal certainty are also of great importance at the local level for attracting investors: entrepreneurs need a stable and reliable legal framework to set up a business, create jobs and invest money locally.

It is therefore all the more important that local self-government in particular must and can basically follow clear and comprehensible rules of the game in a transparent manner in every administrative procedure.

Why is it especially important for local self-governments to have a single, uniform, generally applicable Law on Administrative Procedure?

Certainty about the right procedure increases legal certainty and thus enables local self-government to work effectively, responsibly and in accordance with the rule of law for the benefit of their citizens.

The more complex, detailed and subject-specific the rules of the game are, the greater the risk of error in their implementation: it is difficult for administration as well as for citizens to see through a wide variety of special regulations. Already the administration has problems to apply the right rules correctly. For citizens, it is all the more difficult to understand complex and different rules, to know their rights and fulfil their duties. The less complex and differentiated the procedural rules, the better people can exercise their rights as empowered and responsible citizens.

It is all the more important that local self-government in particular, with its diverse areas of responsibility and competences, must and can basically follow the same, uniform, clear and comprehensible rules of the game in a transparent manner in every administrative procedure, which apply to other administrative authorities in the same way. This gives local authorities certainty about the right course of action, regardless of the subject of the individual administrative procedure. At the same time, citizens are thus protected from procedural errors.

What is the significance of the Law on Administrative Procedure for local self-government in Germany?

A citizen survey has shown that in Germany in 2019 a total of 84% of the population had contact with at least one administrative authority. A good 57% had contact with several administrative authorities. Almost all of them, 93% in total, had contact once or several times with authorities of the local self-governments (in Germany these are the municipalities and districts).

The contacts concerned registration after a change of residence, registration of marriages and births, issuing identity cards or visas, health certificates, parking permits, granting social welfare benefits such as housing allowance, registration of motor vehicles, building permits, business licences or bans, assessment of business tax for companies, matters concerning kindergartens and schools, water supply, waste disposal and much more.

This shows that in Germany especially the public administration tasks that are important for the citizens in their everyday lives are the responsibility of the local self-governments, i.e. the municipalities and districts.

This illustrates two things:

Firstly, it is particularly important that a fair administrative procedural law based on the rule of law applies precisely at the level of local self-government. It is at the level of local self-government that citizens benefit most from such a law, as they have the most frequent contact with the authorities of local self-government.

On the other hand, it also shows how important it is that a largely uniform procedural law applies. The administrations of the local self-governments benefit just as much as the citizens from the fact that for their many contacts in extremely different and diverse areas of law there are not different rules in each case, but fundamentally uniform rules. This creates transparency, ensures that the principle of the rule of law is observed equally in all procedures and gives all those involved certainty of action.

What happens if the rules of the game are not observed, i.e. an authority violates regulations of the German Law on Administrative Procedure?

The German constitution (the Basic Law) guarantees anyone who claims that his or her rights have been violated by an authority the right to take legal action. From this guarantee of effective legal protection follows the duty of the courts to review the challenged decisions of authorities also with regard to compliance with administrative procedural requirements.

The citizen or business concerned can therefore sue in court to have the authority respect the rules of the game of administrative procedure, i.e. his or her procedural rights. This can lead to the authority having to conduct a new administrative procedure and make a new decision at the end, or to procedural steps having to be corrected or made up for and it having to be checked whether the decision made afterwards also has to be corrected in terms of content. 

With the Law on Administrative Procedure, the courts have binding and generally applicable criteria against which they must review whether an administrative procedure has been conducted properly and without violations of the law. 

At the same time, authorities and citizens know that compliance with the rules of the game is important and can be demanded. The authorities regularly emphasise compliance with the rules of the game on their own initiative, as they have an interest in ensuring that their decisions stand and are not repealed by the courts due to procedural errors.

What principles of the rule of law are the basis of the German Law on Administrative Procedure?

The German Law on Administrative Procedure is based in particular on the following principles:

Firstly, the principle of administrative legality applies. It is important in two respects: On the one hand, the administration must observe the primacy of the law, i.e. it may not violate legal norms. Secondly, it must accept the reservation of the law. This means that it may not interfere with the rights of third parties without legal authority.

Furthermore, the principle of equal treatment applies. This includes a prohibition of discrimination and the requirement to treat equal things equally. The latter, in turn, also includes a differentiation requirement in the sense that unequal things may not be treated equally.

Finally, the principle of proportionality applies to all decisions of the authorities, as does the prohibition of arbitrariness, including the principle of exercising due discretion, insofar as there is scope for decision-making.

What are the main contents of the German Law on Administrative Procedure?

In general, the German Law on Administrative Procedure regulates everything the administration does and how it may do it. In particular, the following general procedural principles are a central part:

•  Administrative procedures are to be carried out swiftly and efficiently.

•  Administrative procedures must be kept free from any inappropriate influences. Therefore, employees of the authorities who could themselves gain a direct advantage or disadvantage from the decision to be taken are excluded from the specific administrative procedure. In this context, it is important to avoid any impression of bias. This is the case if, due to the circumstances of the individual case, the impartiality of the action no longer appears to be sufficiently guaranteed from the perspective of an objective third party in view of the possible advantage or disadvantage.

• If administrative proceedings have been initiated, the authority shall investigate the relevant facts ex officio. In doing so, the authority has to take into account all circumstances that are significant for the individual case and that are both unfavourable and favourable for the respective party in its decision-making.

• The authorities have a duty of care and concern towards the persons involved. Therefore, they shall encourage the submission of declarations, the filing of applications or the correction of declarations or applications if these have obviously only been omitted or submitted incorrectly by mistake or through ignorance. No person shall be prevented from exercising his or her rights by mere ignorance.

• The authority is obliged to hear the party concerned. This means, the authority must give a party the opportunity to comment on all factual and legal issues deemed relevant in the specific case by the authority before making a decision that interferes with the party's rights.

This gives the party the opportunity to influence the course and outcome of the proceedings, because the authority must take note of his or her opinion and seriously consider it in its decision. The decision may also only be based on circumstances on which the party concerned was able to comment beforehand.

• The authority is obliged to grant the person concerned access to the procedural files insofar as such access is necessary for the assertion or defence of his or her legal interests. This right to inspect files ensures that the party involved can receive all the necessary information to be able to effectively participate in the administrative procedure and to make a qualified statement at his or her hearing. At the same time, it ensures transparency and an exchange between the authority and the party on an equal footing.

• In order for the right to inspect files to be effective, the authority is at the same time obliged to keep the files properly, in particular completely.

• The party concerned is entitled to have his or her secrets - in particular secrets belonging to the personal sphere of life as well as business and trade secrets - not disclosed by the authority without authorisation.

• If the authority has made a decision with effect for or against a citizen or a company, it must notify the party concerned. Before that, the decision has no effect.

• The content of the authority’s decision must be sufficiently clear and specific.

• The authority must give reasons for its decision with effect for or against citizens or businesses. The person concerned must be able to understand from the justification all facts and legal considerations which, in the opinion of the authority, are essential for the decision. If there was a room for discretion, it must be clear from the justification that the authority recognised this, with which considerations it filled it and whether it respected the principle of proportionality.

What is the background of the German Law on Administrative Procedure?

In Germany, the Law on Administrative Procedure came into force at federal level in 1977. The law was based on the experience that it is important that the parliament, as the highest directly elected representative body of the people, itself defines the requirements for a proper administrative procedure that meets the requirements of the rule of law and does not leave this to the jurisdiction of the courts and certainly not to the authorities themselvesOnly in this way authorities have a universally valid, binding guideline on how to act. And only in this way can citizens gain certainty about what rights they have in an administrative procedure before or during an administrative procedure and not only in a later legal dispute and assert them confidently. 

Because of this fundamental importance, the Law on Administrative Procedure is also referred to as the "Basic Law of Administration", in reference to the German constitution, the Basic Law.

Due to the federal system in Germany, the Federal Law on Administrative Procedure applies exclusively to the administrative actions of the federal authorities. In addition, there are administrative procedure laws of the Länder which apply to the respective Land authorities and the local self-governments in the respective Länder.

What is important, however:

The Laender have either adopted the provisions of the Federal Law on Administrative Procedure verbatim for the most part or declare the rules of the Federal Law on Administrative Procedure to be directly applicable in their law. On the one hand, of course, the requirements of the rule of law for a fair administrative procedure are uniform throughout Germany. On the other hand, different procedural rules create legal uncertainty and it must be avoided that citizens and companies have to deal with different rules when contacting different federal, state and local self-government authorities. For this reason, the administrative procedure laws of the Federation and the Länder are always developed further in a joint process by the Federation and the Länder.

Thus, even in federal Germany, it is important and guaranteed that uniform administrative procedural law is legally standardised for all administrative authorities nationwide and that it is applied equally and uniformly to all citizens.

This material is a reprint. Read the original on the Public Administration Reform portal.