CAL REVISION – GERMANY
1. What is an administrative act and where is it defined?
An administrative act is an order, decision or other sovereign measure which an authority
issues for the regulation of an individual case in the area of public law which is aimed at
direct external legal effect. It is defined §38 of the German APA.
2. How can an administrative act be distinguished from other forms of
administrative action?
The following criteria distinguish an administrative act from other forms of administrative
action.
Sovereign measure: this entails a relationship of subordination; unilateral ≠ bilateral
and consensual measures
By an authority defined in §1(4) APA ≠ private individuals, unless exercising public
law powers, legislative bodies and courts
On an individual case ≠ general and abstract measures (statutory orders/by-laws)
o The addressees must be either determined or determinable on the basis of
common characteristics (the latter falls within a general order (2nd para)).
Regulation: it must be able to change the legal sphere of an individual ≠ factual acts
Direct external legal effect ≠ internal measures, preparatory measures
3. Contracts
Private law contracts
- If an administrative authority is carrying out or participating in a purely commercial
and trading activity in order to save, augment or dispose of its assets.
Administrative law contracts (i.e. public law contracts) → §54 ff.
- Creates, modifies or annuls the legal relationship in the sphere of public law
(administrative law; administrative courts)
- Coordinate/subordinate contracts (= the parties to the contract stand in the relationship
of superior and subordinate)
- Compromise/Reciprocal (= the parties to the contract agree to carry out reciprocal
obligations)
- Requirement of legality → through contract the administration cannot enlarge its
powers and do things which otherwise is not authorised to do.
- An administrative contract must have its basis in the law and should not conflict with
any legal provision!
- If a law requires that any of its provisions should be implemented through an
administrative measure, then a contract is prohibited.
Decisive criterion for distinction between public and private sphere is the ‘object’ of the
contract → exercise of public power = public law contract
4. Principle of legitimate expectations
1. What is an administrative act and where is it defined?
An administrative act is an order, decision or other sovereign measure which an authority
issues for the regulation of an individual case in the area of public law which is aimed at
direct external legal effect. It is defined §38 of the German APA.
2. How can an administrative act be distinguished from other forms of
administrative action?
The following criteria distinguish an administrative act from other forms of administrative
action.
Sovereign measure: this entails a relationship of subordination; unilateral ≠ bilateral
and consensual measures
By an authority defined in §1(4) APA ≠ private individuals, unless exercising public
law powers, legislative bodies and courts
On an individual case ≠ general and abstract measures (statutory orders/by-laws)
o The addressees must be either determined or determinable on the basis of
common characteristics (the latter falls within a general order (2nd para)).
Regulation: it must be able to change the legal sphere of an individual ≠ factual acts
Direct external legal effect ≠ internal measures, preparatory measures
3. Contracts
Private law contracts
- If an administrative authority is carrying out or participating in a purely commercial
and trading activity in order to save, augment or dispose of its assets.
Administrative law contracts (i.e. public law contracts) → §54 ff.
- Creates, modifies or annuls the legal relationship in the sphere of public law
(administrative law; administrative courts)
- Coordinate/subordinate contracts (= the parties to the contract stand in the relationship
of superior and subordinate)
- Compromise/Reciprocal (= the parties to the contract agree to carry out reciprocal
obligations)
- Requirement of legality → through contract the administration cannot enlarge its
powers and do things which otherwise is not authorised to do.
- An administrative contract must have its basis in the law and should not conflict with
any legal provision!
- If a law requires that any of its provisions should be implemented through an
administrative measure, then a contract is prohibited.
Decisive criterion for distinction between public and private sphere is the ‘object’ of the
contract → exercise of public power = public law contract
4. Principle of legitimate expectations
