Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries


Project Report, 2007

23 Pages


Excerpt

Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries

A. General outline

B. Potential legal capacity for individuals to apply to courts in solutions of matters of local importance
I. Potential legal capacity in German law for individuals to apply to courts in solutions of matters of local importance
1. Overview about administrative actions
a) The admissibility of an administrative action
b) The reasonableness of an administrative action
2. Administrative legal protection
3. Possible complaints against insufficiency in solution of matters of local importance
a) Action of opposition
aa) Criteria for the admissibility of an action of opposition
bb) Criteria of the reasonableness of an action of opposition
b) Action for a declaratory judgement
aa) Criteria for the admissibility of an action for a declaratory judgement
bb) Criteria of the reasonableness of an action for a declaratory judgement
c) Judicial review
aa) Abstract and concrete judicial review
bb) Judicial review according to § 47 VwGO
4. Possible complaints against the failure to act of municipal authorities in solution of matters of local importance
a) Action for commitment
aa) Criteria for the admissibility of an action for commitment
bb) Criteria for the reasonableness of an action for commitment
b) Action for performance
aa) Varieties of an action of performance
(1) Action for conduct
(2) Action for omission
bb) Criteria for the admissibility of an action for performance
cc) Criteria for the reasonableness of an action for performance
5. Constitutionality of administrative actions
a) Discretion
aa) Types of discretion
(1) Discretion of ruling
(2) Discretion of assortment
bb) Margins of discretion
(1) Failure of discretion
(2) Misuse of discretion
(3) Exceedance of discretion
b) The right to be heard
c) Bias
II. Potential legal capacity in English law for individuals to apply to courts in solutions of matters of local importance
1. Judicial review
a) The scope of judicial review
b) The limits of an Administrative Court's role
c) The grounds for judicial review
aa) Illegality
(1) Decision maker acting ultra vires
(2) Unlawfully delegating power or fettering discretion
(3) Taking into account irrelevant considerations
bb) Irrationality
cc) Procedural Impropriety
(1) Failure to give each party to a dispute an opportunity to be heard
(2) Bias
(3) Failure to conduct a consultation properly
(4) Failure to give adequate reasons
(5) Legitimate expectation
2. Other potential claims

C. Communal supervision of efficiency, resulting capacity and sufficiency in solution of matters of local importance
I. Communal supervision of efficiency, resulting capacity and sufficiency in solution of matters of local importance in Germany
1. Meaning of the supervision
2. Competent supervisory authorities
3. Types of supervision
a) Legal supervision
b) Functional supervision
II. Communal supervision of efficiency, resulting capacity and sufficiency in solution of matters of local importance in Austria
1. Competent supervisory authority
2. The content of communal supervision
3. The scope of communal supervision

Literature:

- Becker, Ulrich, Heckmann, Dirk, Kempen, Bernhard, Manssen, Gerrit, Öffentliches Recht in Bayern, publishing company: C. H. Beck, 3rd edition, 2005.

- Erichsen, Hans-Uwe, Ehlers, Dirk, Allgemeines Verwaltungsrecht, publishing company: De Gruyter, 12th edition, 2002.

- Horne, Alexander, Berman, Gavin, Judicial Review: A short guide to claims in the Administrative Court, House of Commons Library, Research Paper 06/44, 28 September 2006.

- Kopp, Ferdinand O., Schenke, Wolf-Rüdiger, Verwaltungsgerichtsordnung, Kommentar, publishing company: C. H. Beck, 12th edition, 2000

- Schenke, Wolf-Rüdiger, Verwaltungsprozessrecht, publishing company: C. F. Müller Verlag, 8th edition, 2002.

- Treasury Solicitor, The Judge Over Your Shoulder, A Guide to Judicial Review for UK Government Administrators, 4th edition, 2006.

Abbreviations and acronyms:

illustration not visible in this excerpt

A. General outline

Municipalities are to some extent entitled by law to administrate matters of local importance. However, they cannot act just as they like. In fact, they are supervised by competent authorities. Even individuals can apply to courts if they think the Municipalities did not accomplish their duties and responsibilities sufficiently, or failed to perform them at all. A closer contemplation of this subject matter follows on the forthcoming pages.

B. Potential legal capacity for individuals to apply to courts in solutions of matters of local importance

Individuals are not powerless when confronted with rights infringing decisions or deeds exercised by local authorities. In fact, they have the possibility to apply to courts for sorting out potential legal problems. Of course, every Member State has developed different types of lawsuits and therefore has set out different requirements that must be fulfilled to succeed in such an action.

I. Potential legal capacity in German law for individuals to apply to courts in solutions of matters of local importance

In German law a very methodical and sophisticated system of different administrative actions does exist. To emphasize this, firstly an overview about administrative action will be given in order to demonstrate the difference of admissibility and reasonability in German administrative law (1.). After a short digression to the constitutional and legal grounds for administrative action (2.) possible reactions of complaints to two typical failures of administrative action – insufficient solutions (3.) and the failure to act at all (4.) – will be extensively analysed. Finally problems concerning the reasonability of administrative action will be shown (5.).

1. Overview about administrative actions

A successful administrative action has to be admissible and reasonable.

a) The admissibility of an administrative action

The scrutiny of the admissibility (“Zulässigkeit”) of a claim means to verify, whether the different conditions are existent, in order to adjudicate the case. If one of the conditions is lacking, the administration court will rebut the claim as inadmissible. Such a nonsuit implicates that the matter in dispute has not been decided in a legally binding way yet. Thus, there is still the possibility for the real differences to be resolved in another proceeding.[1]

b) The reasonableness of an administrative action

The scrutiny of the reasonableness (“Begründetheit”) of a claim means to verify, whether the administrative decision has been lawful. Hence, the administrative action is reasonable, if the demand of the claimant is justifiable on the basis of the material legal situation.

There are many criteria which must be met: The right position as respondent, existence of a legal basis for suretyship for the purported infringement of the claimants rights, formal lawfulness (“formelle Rechtmäßigkeit”) of the behaviour of the administration and material lawfulness (“materielle Rechtmäßigkeit”).[2]

The scrutiny of the material lawfulness is the most important part of this examination. It should clarify, if the facts of the case have been ascertained entirely and precisely, if all concepts of law have been interpreted exactly and if the obligation to justice and law has been considered. Furthermore, in discretionary decisions the administration court investigates if the administration has exercised the discretion granted as in duty bound.[3]

However, according to § 68 section 1 Verwaltungsgerichtsordnung (Administration Procedural Law, in the following VwGO) the scrutiny of the administrative decision's convenience is the purpose of the preliminary proceeding[4] (“Vorverfahren”)[5].

2. Administrative legal protection

Art. 19 section 4 Grundgesetz (Basic Law – Constitution of the Federal Republic of Germany, in the following GG) provides that persons, whose rights are hurt by public force, are allowed to take legal proceedings (“verwaltungsgerichtlicher Rechtsschutz”). The conditions which must be fulfilled to take legal actions to an administration court are set out in § 40VwGO. Thus, the existence of an administrative legal process is one of the basic requirements that must be existent to successfully bring in any remedy ruled in the VwGO. There are different types of claims according to the particular demands of the individual searching for legal protection.

3. Possible complaints against insufficiency in solution of matters of local importance

In case a local authority acted insufficient in an individual's opinion, there are different ways for them to challenge this alleged inadequate behaviour. This comprehends actions against administrative acts as well as actions for scrutinising legal provisions.

a) Action of opposition

In case the claimant demands the annulment of an administrative act which has not already tired out, he takes an action of opposition (“Anfechtungsklage”, § 42 VwGO).[6]

aa) Criteria for the admissibility of an action of opposition

Firstly, there are some criteria for the admissibility of the claim which must be fulfilled. The claimant must have a right to sue (“Klagebefugnis”, § 42 section 2 VwGO), an opposition proceeding must have been conducted (§§ 68 et seqq. VwGO) and the period for filing an action must not be failed (§ 74 VwGO).

bb) Criteria for the reasonableness of an action of opposition

An action of opposition is justified as far as the administrative act is unlawful and thereby the claimant is infringed in their rights (§ 113 section 1 sentence 1 VwGO).

b) Action for a declaratory judgement

An action for a declaratory judgement is a claim for determining that a certain legal relationship exists or does not exist, or that an administrative act is void, (“Feststellungsklage”, § 43 section 1 VwGO).

A substantial field of application of an action for a declaratory judgement is where rights of status are controvertible. These are inter alia cases which concern citizenship, civil service or soldiers.

aa) Criteria for the admissibility of an action for a declaratory judgement

Again special premises must be fulfilled for the claim to be admissible.

According to § 43 section 1 VwGO, the claimant must have a qualified interest in an early declaration. Not only legal interests, but also every interest that is considered worth to be protected comes into consideration. This includes economical and ideational interests as well.[7]

If the legal relationship that must be resolved is a thing of the past, then there either must be efficiencies in the presence (“Wiederholungsgefahr”, danger of recurrence)[8] or the claimant must have a special interest in a retroactive clarification (“Rehabilitationsinteresse”, interest in rehabilitation)[9].

As for a prospective legal relationship, an interest to seek a declaratory judgement will only be affirmed, if the claimant cannot be expected to wait any longer.[10]

The legal relationship in question must be concrete enough.[11] That is to say, it must be about a statement of affairs which already is straightforward. It must not be about scrutinising abstract legal questions.

Again the claimant must have the right to sue (§ 42 section 2 VwGO).

The action for a declaratory judgement is subsidiary to a suit for performance (“Leistungsklage”) and an action for conformation (“Gestaltungsklage”).[12] Only if the claimant could not have protected his rights by one of these lawsuits, their action for a declaratory judgement might be admissible (§ 43 section 2 sentence 1 VwGO). By that, a circumvention of the special conditions of the admissibility of an action of opposition[13] and an action for commitment[14] (period for filing suit, opposition proceedings) is avoided.

bb) Criteria for the reasonableness of an action for a declaratory judgement

An action for a declaratory judgement is reasonable if the legal relationship exists, or (in case of an action for a negative declaratory judgement) does not exist, or (in case of an action of nullity) the administrative act is de facto void.[15] This goes by material law.

c) Judicial review

Judicial review (“Normenkontrolle”) is an administrative type of process to juridically scrutinise the validity of legal provisions. It is executed by the Federal Constitutional Court (“Bundesverfassungsgericht”) or the Constitutional Court of the particular Federal State (“Landesverfassungsgericht”). The court scrutinises the reconcilableness of a Federal Law or a Federal State Law with the constitution and as the case may be with the constitution of a particular Federal State.

aa) Abstract and concrete judicial review

One can differentiate between the abstract and the concrete judicial review.

If the compatibility is examined within a continuous legal procedure, judicial review is called concrete. In that case, according to Art. 100 section 1 GG, § 13 no. 11 Bundesverfassungsgerichtsgesetz (Federal Constitutional Court Act, in the following BVerfGG), a cognitive court renders a statute for examination to the Federal Constitutional Court.

The review is called abstract if the investigation is exercised independent of a continuous legal procedure. In accordance with Art. 93 Abs. 1 no. 2 GG, § 13 no. 6 BVerfGG, the Federal Government (“Bundesregierung”), the Government of the Federal States (“Landesregierung”), or one-third of the Members of the Lower House of German Parliament (“Bundestag”) can apply a request to the Federal Constitutional Court.

bb) Judicial review according to § 47 VwGO

But individuals can only induce a judicial review in accordance with § 47 VwGO. This type of abstract judicial review is implemented by the higher administration courts (“Oberverwaltungsgerichte”) of the Federal States. According to § 47 section 1 no. 1 VwGO, issue of this proceeding is the scrutiny of the validity of by-laws (“Satzungen”)[16], in particular legally binding land use plans according to the Baugesetzbuch (German Statutory Code on Construction and Building, in the following BauGB), ordinances (“Rechtsverordnungen”)[17] in accordance with § 246 section 2 BauGB, and according to § 47 section 1, no. 2 VwGO, other provisions below the level of a law provided that this is designated by the respective federal state law. According to § 47 section 2, sentence 1 VwGO every individual and legal person can request a judicial review. For that purpose, they must assert that their rights are or will be infringed in a foreseeable time by the legal provision or its implementation.[18] To affirm legal standing it is therefore not enough to argue that one has suffered or maybe will suffer a disadvantage because of the legal provision. The application is furthermore only admissible if applicant can prove a need for legal relief. This is taken for granted if the infringement of the proposer can still be remedied or avoided by the court's decision. According to § 47 section 2 sentence 2 VwGO, the petition of the judicial review must be directed against the corporation, institution or foundation that has enacted the particular legal provision.[19] There is a time-limit of two years which starts after publication of the provision (§ 47 section 2, sentence 1 VwGO).

In case the judicial review is justified the court declares the attacked legal provision void or temporarily not effective (§ 47 section 5, sentence 2 VwGO). This is because certain deficits can be cured in retroactive procedures.

4. Possible complaints against the failure to act of municipal authorities in solution of matters of local importance

In the event the local authority fails to act, again the individual can bring in several actions to demand the compensation for the failure.

a) Action for commitment

By means of § 42 section 1, alternative 2 VwGO (“Verpflichtungsklage”) the claimant can demand the conviction of the administration to pass a benefiting administrative act. In case the authority owns discretionary powers, the administration court is not able to issue the administrative act itself.[20] This is because of the separation of powers. Different from the action of opposition, the action for commitment is not an action for conformation. That is to say, the administrative court does not change the legal situation itself. Instead, it can convict the administration to issue the administrative act which then would change the legal situation.

aa) Criteria for the admissibility of an action for commitment

For the action for commitment to be admissible, there must have been an unsuccessful opposition procedure (§§ 68 et seqq. VwGO). If the administration does not enact the demanded act or does not respond to the objection (action for failure to act, § 75 VwGO), this is enough for a commencement of an action for commitment.

Again the claimant must have a right to sue (§ 42 section 2 VwGO) and there is a time-limit that must be met.[21] An exception to this requirement is the action for failure to act which can be commenced for an unlimited period.

bb) Criteria for the reasonableness of an action for commitment

According to § 113 section 5 VwGO an action for commitment is justified if the rejection or omission of the administrative act is unlawful and by that the claimant's rights are infringed. The rejection or omission is unlawful if the claimant has a title against the administration for enactment of an administrative deed (judgement of commitment (“Verpflichtungsurteil”), § 113 section 5, sentence 1 VwGO) or a title for an error-free decision (judgement of notification (“Bescheidungsurteil”), § 113 section 5, sentence 2 VwGO).

b) Action for performance

The action for performance (“allgemeine Leistungsklage”) is not expressly regulated by the administrative procedural law. Nevertheless, it is preconditioned in a few provisions of the VwGO: § 40 in connexion with § 43 section 2 sentence 1, further §§ 111, 113 section 4, 169 section 2 and 170 VwGO.[22] By them the claimant can demand a deed, a bearing or an omission. An action of performance is therefore allowed if the claimant desires an action of the administration that is not an administrative decision.

aa) Varieties of an action of performance

The so-called general action for performance can be distinguished in an action for conduct and an action for omission. It depends on the claimant's demand which conformation is permissible.

(1) Action for conduct

In case of an action for conduct (“Leistungsklage”) an activity is normally demanded. That is to say, a deed in the form of a real act.

(2) Action for omission

An action for omission (“Unterlassungsklage”) again is distinguished in a “normal” action for omission and a “precautionary” action for omission (“vorbeugende Unterlassungsklage”). In the event of a normal action for omission an action that has already been done or still continues should be neglected. A precautionary action for omission cannot only be aimed against simple administrative action, but also in an exceptional case against administrative decisions.[23]

bb) Criteria for the admissibility of an action for performance

§ 42 section 2 VwGO is used along the lines of an action of performance.[24] The claimant must therefore assert that they have been infringed in their subjective public rights. An opposition proceeding is disposable.[25] There is no time limit that must be complied with.

[...]


[1] See explanations of existing procedures below B. I. 3. and 4.

[2] Cp. e. g. Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 237.

[3] Cp. e. g. Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 237.

[4] See below B. I. 3. a) aa).

[5] The preliminary ruling (“Vorverfahren”) is also called opposition proceeding (“Widerspruchsverfahren“).

[6] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 59.

[7] Kopp/Schenke, Verwaltungsgerichtsordnung, Kommentar, 12th edition, 2000, § 43 margin no. 33.

[8] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 185.

[9] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 186.

[10] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 186.

[11] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 118 et seq.

[12] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 127.

[13] See below B. I. 3. a).

[14] See below B. I. 4. b).

[15] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 281 et seq.

[16] A by-law in German law means a legal provision which is enacted by a public corporation in order to administer their concerns.

[17] An ordinance is a legal provision which is enacted by executive bodies (government, ministers, and administrative bodies).

[18] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 289.

[19] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 292 et seq.

[20] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 275.

[21] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 84.

[22] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 108.

[23] Cp. Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 111 et seqq.

[24] Cp. Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 114.

[25] Schenke, Verwaltungsprozessrecht, C. F. Müller Verlag, 8th edition, 2002, p. 114.

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Title
Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries
Author
Year
2007
Pages
23
Catalog Number
V169719
ISBN (eBook)
9783640881055
ISBN (Book)
9783640881208
File size
498 KB
Language
English
Tags
application, parameters, working, efficiency, matters, local, importance, municipal, standards, european, countries
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Wolfgang Tiede (Author), 2007, Application of Parameters of Working Efficiency in Matters of Local Importance and Municipal Standards in European Countries, Munich, GRIN Verlag, https://www.grin.com/document/169719

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