German public law has been trend-setting for the development of public law principles in the Continental European sphere in general. In the history of public law, concepts like individual public rights, rule-based execution of discretion or a complex system of differentiated types of public/administrative lawsuits have found their roots in an inspired exchange between predominantly German, but also French, public law pioneers around the late 19th to early 20th century. Thus, judicial review of public law decisions in Germany follows a delicately calibrated and highly developed system of general rules, which are, on the other hand, complemented by quite a number of very specific sets of rules following certain regulatory regimes and sectors.

Germany has a specialised branch of dedicated administrative courts where public/administrative lawsuits can be lodged. Administrative courts have been established on local, regional and finally federal level. The German Federal Administrative Court constitutes the hallmark of a highly developed legal culture of the finest texture.

The term administrative jurisdiction is used to describe the power of the administrative courts to adjudicate in the field of administrative law. The administrative courts rule on public law disputes of a non-constitutional nature unless the law assigns the dispute to other courts.

The judges of the administrative courts examine the legality of administrative action. They pass down their decisions independently and are bound by law and justice only. If citizens feel that their rights have been violated by a decision of an administrative authority affecting them, they can have it reviewed by the administrative courts. The administrative courts thus implement the constitutional requirement of effective legal protection.

Section 52 VwGO (Verwaltungsgerichtsordnung = Code of Administrative Court Procedure) regulates the local jurisdiction of the administrative courts. Apart from some special jurisdictions, Section 52 no 5 VwGO stipulates that, in general, the administrative court in whose district the defendant has their seat, domicile or, in the absence thereof, residence, or had their last domicile or residence, has local jurisdiction.

Susceptibility to challenge is determined by both the status or nature of the defendant and the nature of the decision or action challenged. These combined legal aspects will help a potential claimant to decide which public entity to pursue.

Under German law, it is possible for individuals to challenge primary legislation; however, the range for individuals is limited. The German Federal Constitutional Court will accept this type of claim in two possible circumstances: (i) if an individual claimant has unsuccessfully fought their way through the complete circuit of civil or administrative court procedures and, following final judgment by a Federal Court, can assert that the law this final decision is based on is in breach of an individual constitutional right; or (ii) if an individual can successfully argue that primary legislation directly impairs (at least) one of their individual constitutional rights.

It is further possible to bring a challenge to secondary legislation (i) directly, which is limited to an enumerative number of specific types of secondary legislation, or (ii) indirectly, by initiating judicial review of an individual administrative act which is based on the secondary legislation to be challenged.

Any individual can bring a challenge to government decisions of any form, provided this individual can assert that an individual, subjective right has impaired their legal position.

Under German law, private entities and public bodies may enter into private or public law agreements. Either way, these agreements can be challenged and put under judicial scrutiny. Depending on the subject of the agreement, either a civil court or an administrative court will be called upon.

Depending on the content and form of advice or guidance given by a public body, this type of decision itself might be challenged before an administrative court even if its effect is not binding; in any case, if the advice or guidance given proves wrong and causes damage to the private entity or individual concerned, this will be grounds for damages to be claimed before a civil court.

Where a person or body performs commercial or non-governmental activities within the public sphere, the civil courts are called upon to provide judicial review.

The court’s administrative law jurisdiction cannot be ousted by legislation or by contract, or otherwise. The general principles of public law will permeate the entire legal relationship and can, in parallel, be subject to judicial scrutiny.

Claimants bringing administrative law challenges are required to have been directly affected by the decision, ruling or factual act. In contrast to civil law proceedings, there are no parties in administrative proceedings, but rather “participants”, defined according to Section 63 nos 1–4 VwGO. These include:

• the plaintiff;
• the defendant; and
• where applicable, the subpoenaed party or invitee.

This hard principle is partly softened for activities initiated by charities and NGOs: they may bring challenges to government decisions where they themselves – as legal entities – are not directly affected by the decision under scrutiny. However, the decision must concern a topic that is subject to the charity’s or NGO’s declared and officially acknowledged purpose – ie, an environmental NGO cannot bring a case dealing with general consumer protection, and the other way round.

The public body that issued the decision in question will automatically be a participant to the procedure. In some German states, eg, the Free State of Bavaria, a public general attorney will be heard by the court. Apart from this, it is not possible for any government body to join an administrative court procedure as an additional party at their own will.

Invitees/subpoenaed parties to a procedure are third parties/persons whose interests may be affected by the court’s decision and therefore may or must be involved in the litigation. Any subpoenaed party can bring about measures to end the procedure they have been summoned to. That party has the same level of capacity to settle as the defendant. Apart from this, a subpoenaed party has each and every right to appeal against the judgment passed down.

In an administrative court procedure, the public body’s files will have to be disclosed. Usually, the court will summon these files as soon as the claim has been lodged.

In addition to disclosure of the public body’s files, the claimant may apply for further disclosure of governmental files; the application will be reviewed and sanctioned by the court.

Live evidence and cross-examination of witnesses can be applied for by the participants to the procedure or even be initiated by the court itself.

In some cases, which depend on (i) the specific sector of administrative law where the decision is taken and (ii) individual state law, it will be necessary to apply for an intra-administrative review of the decision before seeking out an administrative court. This type of review is called the “objection procedure” (Widerspruchsverfahren).

Please see 9.1 Preliminary Requirements.

The time limit for bringing a challenge is one month after the decision has been sent and finally come to the knowledge of its addressee. In cases of a third-party claim, the time limit is one year after the decision has come to the knowledge of the third party.

In order to initiate a claim, the claimant has to clearly name the administrative act which has been issued to their asserted disadvantage and also to submit the decision in question.

The initiation of the claim will enable the administrative court to summon the files of the public body which has issued the decision. An inspection of the public files will then enable the claimant to provide legal arguments and, if necessary, further evidence.

There is no sifting process to be adhered to or to be passed through. As soon as the claimant has submitted his reasoning and evidence, the court will decide whether an oral hearing is necessary and when to order a date for the hearing.

In urgent situations, the claimant may, in parallel to the initiated main proceedings, file for an immediate injunction. This will be heard by the same court. The test for an immediate injunction will be a summarised, preliminary and non-binding legal review of the decision challenged in the main proceedings. The court will also assess the factual circumstances of the situation, ie, why it is urgent and what might follow from an order to immediately give way to the claimant’s demands. The court will weigh, at its discretion, the legal and other interests of the claimant against the public interest behind the decision issued by the public body.

The task of the court is to examine the merits of the decision as well as the way in which it was made: the procedural and the material aspects of the decision will be closely examined, and any of these aspects may cause a withdrawal to be ordered by the court.

The founding of the Federal Republic of Germany after the Second World War is based on a written constitution issued on 23 May 1949, the Grundgesetz. A wide variety of challenges can be brought by governmental and municipal bodies, but also by individuals, on the basis that a decision is inconsistent with the constitution. For this purpose, the German Federal Constitutional Court was founded, its procedural order and the various types of lawsuits it will accept prescribed by dedicated legislation, the Procedural Code of the Federal Constitutional Court (Bundesverfassungsgerichtsgesetz). In addition to this, the constitution is directly binding on and must be considered by any court (and any public body), with the effect that in any administrative procedure, and in any court procedure, a claimant can argue that a decision is inconsistent with the constitution and must be heard by the Federal Constitutional Court. Beside the Grundgesetz, each of the 16 German states has an individual State Constitution in place, including a dedicated state constitutional court which has powers similar to the Federal Constitutional Court, but limited to the respective state law.

To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker did not follow the relevant procedure for that decision. In German administrative law, this would be called a procedural fault.

To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker made an error of fact.

To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker abdicated or fettered their discretion. In German administrative law, this would be called mistaken exercise of discretion (Ermessensfehler).

If a decision-maker exercises a decision in a biased way, this would be treated by the court as a mistaken exercise of discretion (Ermessensfehler).

As the right of equal treatment is guaranteed under the German constitution, it is possible to bring a challenge on the basis of unequal treatment.

As Germany is a signatory to the European Convention on Human Rights, it is, in addition, possible to bring a claim on human rights grounds. However, the German constitution covers all rights provided for under the European Convention; only nuances in the wording of each document slightly set them apart.

It is possible to bring a claim on proportionality grounds, which the German courts, systematically, treat as part of their assessment of the correct exercise of discretion.

Finally, a claimant can challenge a public decision on the grounds that it does not abide with other law regimes which are in principle binding upon public bodies in Germany – in particular, European Law.

Any decision of a public body in Germany which is directed towards the public or individuals can be challenged by the affected individual. This is explicitly guaranteed under the German constitution.

Please see 9.5 Procedural Stages and 9.6 Initial Sifting Process.

Please see 9.7 Expedited Proceedings.

If an administrative court finds that a claimant’s rights have been impaired by decisions or factual acts exercised by public bodies, the affected individual can seek to be awarded damages before a civil court.

In very specific cases, higher regional administrative courts may strike out secondary legislation they find to be unlawful. However, this only applies to secondary legislation issued by municipalities, eg, zoning plans or the imposition of local public charges. As regards any parliamentary legislation, issued at state or federal level, only a constitutional court (at state or federal level) may strike it out.

Only the constitutional courts (at state or federal level) which have the power to strike out legislation they find unlawful can order the (state or federal) government to carry out a specific course of action. When doing this, constitutional courts must observe the balance between executive and jurisdictional power.

Where a decision is found to be unlawful, the court (i) simply lifts the decision and declares it null and void with the effect it is non-existent and non-binding, or (ii) orders the public body to grant the claimant’s demands.

The costs of a court procedure and the legal representation needed are determined by statutory law, based on the value of the dispute. Costs are transparent and any claimant can make an informed decision on the cost risk at hand.

There are no special rules for costs in public interest cases. As the access to administrative courts is limited to claimants who are individually affected or to interest groups who are privileged under tax laws, there is neither cause nor interest in defining public interest cases.

There is no applicable information in this jurisdiction.

Germany has installed a specialised branch of dedicated administrative courts where public/administrative lawsuits can be lodged. Administrative courts have been established on local, regional and finally federal level. A local administrative court’s judgment can be appealed to the regional and, finally, to the Federal Administrative Court.

The administrative jurisdiction basically consists of three instances. The first instance is the administrative courts (Verwaltungsgerichte), the second instance is the Higher Administrative Courts (Oberverwaltungsgerichte), and the final instance is the Federal Administrative Court (Bundesverwaltungsgericht) based in Leipzig.

Appeals against decisions of the administrative courts are generally heard in the second instance by the Higher Administrative Court. In each state – with the special feature that the states of Berlin and Brandenburg have a joint Higher Administrative Court – such higher court is established, thus resulting in a total of 15 Higher Administrative Courts in Germany. They are not only appellate courts but also have first-instance jurisdiction for normal control proceedings, eg, disputes about the validity of development plans.

The highest administrative court in Germany is the third instance, the Federal Administrative Court. It is a court of appeal and decides on appeals against rulings of the Higher Administrative Courts and, in special cases, on jump appeals against rulings of the administrative courts (see below). Its primary task is to safeguard the unity of the law and the further development of the law. To this end, it clarifies fundamental questions of federal law. It examines whether the decisions of the administrative courts and higher administrative courts are compatible with federal law and the law of the European Union. In doing so, it decisively determines their interpretation and application. In this respect, the Federal Administrative Court is purely a legal authority. It neither establishes new facts nor – with a few exceptions – interprets the law of the states.

In certain cases, listed by law, the Federal Administrative Court will decide in first instance. In these cases, it decides as both factual and legal authority.

Whether its judgment can be directly appealed or permission to appeal must be given by the higher court is a matter that depends on the court hearing a case. The lower court may explicitly give way to an opportunity to appeal it if believes the case is of general interest and that direct access to an appeal will be beneficial for the matter at hand.

Once the appeal has been accepted, it will be subject to a rehearing. The Federal Administrative Court as last instance will hear the case, but it will not accept new facts; it will decide on legal grounds only.