The scandal concerning rigged emissions tests to circumvent regulations is regularly not reflected through the lense of the German rules of State liabilty. This lack of attention follows from the fact that compensation for damage caused to individuals is regularly precluded under the German rules of State liability when the underlying regulation scheme is applied diligently by the competent public authority. In consequence, an unlawful market approval by manipulated but lawfully investigating public authorities appears to exclude liability. However, liability under the German rules of State liability is not limited to cases of misconduct by public authorities. Against this background the case is made for a liability of the manipulated State even though there is no evidence of misconduct on behalf of its authorities when applying approval procedures. The proposed special case for State liability rests on two pillars: the structural vulnerability of the relevant approval procedures for manipulation and a high degree of dependency of third party economic actors on the validity of the State’s approval mechanisms.
{"title":"Staatshaftung getäuschter Hoheitsträger?","authors":"Nils Grosche","doi":"10.3790/VERW.52.2.181","DOIUrl":"https://doi.org/10.3790/VERW.52.2.181","url":null,"abstract":"The scandal concerning rigged emissions tests to circumvent regulations is regularly not reflected through the lense of the German rules of State liabilty. This lack of attention follows from the fact that compensation for damage caused to individuals is regularly precluded under the German rules of State liability when the underlying regulation scheme is applied diligently by the competent public authority. In consequence, an unlawful market approval by manipulated but lawfully investigating public authorities appears to exclude liability. However, liability under the German rules of State liability is not limited to cases of misconduct by public authorities. Against this background the case is made for a liability of the manipulated State even though there is no evidence of misconduct on behalf of its authorities when applying approval procedures. The proposed special case for State liability rests on two pillars: the structural vulnerability of the relevant approval procedures for manipulation and a high degree of dependency of third party economic actors on the validity of the State’s approval mechanisms.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42693342","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
German Administrative Science seems to be in crisis. However, some development indicates a possible renaissance. The paper analyzes causes of the crisis and depicts requirements for a renaissance. Therefore, it highlights the historic developmentof the Administrative Science in Germany and discusses different integration levels of Administrative Science. These integration levels are described as potential future scenarios and are evaluated with regard to their sustainability. After examining the impact of New Administrative Law (“Neue Verwaltungsrechtswissenschaft”) on the renaissance of Administrative Science in Germany the paper argues for a concept of Administrative Science as an interdisciplinary project rather than a transdisciplinary science. It demonstrates the potential of this concept with regard to two examples (the reform of the asylum administration and the use of Artificial Intelligence by the administration). The paper ends with notes on the Administrative Science’s entitlement and reputation.
{"title":"Renaissance der Verwaltungswissenschaft?","authors":"Enrico Peuker","doi":"10.3790/VERW.52.2.157","DOIUrl":"https://doi.org/10.3790/VERW.52.2.157","url":null,"abstract":"German Administrative Science seems to be in crisis. However, some development indicates a possible renaissance. The paper analyzes causes of the crisis and depicts requirements for a renaissance. Therefore, it highlights the historic developmentof the Administrative Science in Germany and discusses different integration levels of Administrative Science. These integration levels are described as potential future scenarios and are evaluated with regard to their sustainability. After examining the impact of New Administrative Law (“Neue Verwaltungsrechtswissenschaft”) on the renaissance of Administrative Science in Germany the paper argues for a concept of Administrative Science as an interdisciplinary project rather than a transdisciplinary science. It demonstrates the potential of this concept with regard to two examples (the reform of the asylum administration and the use of Artificial Intelligence by the administration). The paper ends with notes on the Administrative Science’s entitlement and reputation.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45506557","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Claims and Actions in Administrative Law It is beyond dispute that administrative courts protect the rights of individuals. Yet how does this protection actually operate? In his recently published monograph “Actio, Anspruch, subjektives Recht” (2017), Johannes Buchheim suggests a fresh account of legal protection in administrative law issues. Buchheim develops an action-based model concerning the reconstruction of administrative law. The project questions the prevalent approach towards administrative law, labelled as the claim-based model. The claim-based model focusses on substantive claims, which may originate from a violation of an individual right or which may be established directly by a statute, a contract or anadministrative act. It conceives judicial actions as being strictly dependent on such substantive claims. The action-based model denies such a dependence. Instead, it assumes that the courts follow an autonomous logic of decision-making, perceiving the violation of a right only as the initial reference point. This article aspires, firstly, to identify Buchheim’s main objections, secondly, to clarify and to confine the claim-based model in some respects, and lastly, to examine the objections raised by Buchheim in detail. While the book offers a plethora of inspiring ideas, it finally does not succeed in establishing the action-based model. Judicial review is based on claims, not only on (violation of) rights.
{"title":"Ansprüche und Klagen im Verwaltungsrecht","authors":"A. Funke","doi":"10.3790/VERW.52.2.239","DOIUrl":"https://doi.org/10.3790/VERW.52.2.239","url":null,"abstract":"Claims and Actions in Administrative Law\u0000 It is beyond dispute that administrative courts protect the rights of individuals. Yet how does this protection actually operate? In his recently published monograph “Actio, Anspruch, subjektives Recht” (2017), Johannes Buchheim suggests a fresh account of legal protection in administrative law issues. Buchheim develops an action-based model concerning the reconstruction of administrative law. The project questions the prevalent approach towards administrative law, labelled as the claim-based model. The claim-based model focusses on substantive claims, which may originate from a violation of an individual right or which may be established directly by a statute, a contract or anadministrative act. It conceives judicial actions as being strictly dependent on such substantive claims. The action-based model denies such a dependence. Instead, it assumes that the courts follow an autonomous logic of decision-making, perceiving the violation of a right only as the initial reference point. This article aspires, firstly, to identify Buchheim’s main objections, secondly, to clarify and to confine the claim-based model in some respects, and lastly, to examine the objections raised by Buchheim in detail. While the book offers a plethora of inspiring ideas, it finally does not succeed in establishing the action-based model. Judicial review is based on claims, not only on (violation of) rights.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49210005","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Information systems constitute a key feature of the European Composite Administration. In the Food and Feed sector, the European Union has established a Rapid Alert System for Food and Feed (RASFF) obliging the Member States to exchange information on food- and feed-related risks to public health, thus enabling them to take action in case of food safety risks resulting from the free movement of these products within the European Union. Such information systems pose a particular challenge for effective legal protection since undertakings seeking to challenge the information exchange or measures resulting from it because of e. g. incorrect information are confronted with a multitude of actors, legal orders and systems of judicial protection. Against this background, the article explores the RASFF’s design and ist functioning, notably the role of the various actors on national and EU level, and analyses the issues of primary and secondary legal protection in case of incorret alert notifications. Moreover, on the basis of these findings, general conclusions for designing EU information systems – relevant also beyond the Food and Feed sector – will be drawn.
{"title":"Informationssysteme als Herausforderung für den Rechtsschutz im Europäischen Verwaltungsverbund","authors":"Ferdinand Wollenschläger","doi":"10.3790/VERW.52.1.1","DOIUrl":"https://doi.org/10.3790/VERW.52.1.1","url":null,"abstract":"Abstract\u0000 Information systems constitute a key feature of the European Composite Administration. In the Food and Feed sector, the European Union has established a Rapid Alert System for Food and Feed (RASFF) obliging the Member States to exchange information on food- and feed-related risks to public health, thus enabling them to take action in case of food safety risks resulting from the free movement of these products within the European Union. Such information systems pose a particular challenge for effective legal protection since undertakings seeking to challenge the information exchange or measures resulting from it because of e. g. incorrect information are confronted with a multitude of actors, legal orders and systems of judicial protection. Against this background, the article explores the RASFF’s design and ist functioning, notably the role of the various actors on national and EU level, and analyses the issues of primary and secondary legal protection in case of incorret alert notifications. Moreover, on the basis of these findings, general conclusions for designing EU information systems – relevant also beyond the Food and Feed sector – will be drawn.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44542849","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The State bears a certain responsibility for the consequences of digitalizing public administration and services. The principles of democracy and the rule of law demand that the state retains effective control over the digitalized performance of ist tasks. This “digital responsibility” of the State also has an impact on the application of public procurement rules governing the procurement of information technologies and services (IT). On the one hand, ensuring digital responsibility will often mean that the contracting authority needs a broad margin of appreciation when interpreting the rules of procurementlaw – for examplewith regard to the legal requirements for choosing special procurement procedures enabling a particulary flexible IT procurement. On the other hand, the contracting authority’s digital responsibility can also be turned against it: When involving, for instance, private parties in the preparation of substantial decisions concerning the procurement of IT, the authority must keep itself well informed and may not simply take over prepared decisions. This way, the digital responsibility of the State can be (and should be) used as a distinct legal argument under public procurement law.
{"title":"Vergaberecht als Digitalisierungsfolgenrecht","authors":"Christoph Krönke","doi":"10.3790/VERW.52.1.65","DOIUrl":"https://doi.org/10.3790/VERW.52.1.65","url":null,"abstract":"Abstract The State bears a certain responsibility for the consequences of digitalizing public administration and services. The principles of democracy and the rule of law demand that the state retains effective control over the digitalized performance of ist tasks. This “digital responsibility” of the State also has an impact on the application of public procurement rules governing the procurement of information technologies and services (IT). On the one hand, ensuring digital responsibility will often mean that the contracting authority needs a broad margin of appreciation when interpreting the rules of procurementlaw – for examplewith regard to the legal requirements for choosing special procurement procedures enabling a particulary flexible IT procurement. On the other hand, the contracting authority’s digital responsibility can also be turned against it: When involving, for instance, private parties in the preparation of substantial decisions concerning the procurement of IT, the authority must keep itself well informed and may not simply take over prepared decisions. This way, the digital responsibility of the State can be (and should be) used as a distinct legal argument under public procurement law.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":"57 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70201667","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Contributing to the discussion about the constitutional prohibition on cooperation (‘Kooperationsverbot’) In the political discussion, the term ‘Kooperationsverbot’ (prohibition on cooperation) has become a fixed buzzword. It describes a principle of the GermanConstitution that prevents the Federation from supporting the Länder in the allegedly inadequate fulfilment of their tasks, particularly in the field of education. Its constitutional foundation lies in the distribution of powers and finances of the German Constitution between the Federation and the Länder. This distribution is structured differently in the field of jurisdiction, legislation, administration and finance. The overall view of these areas does not lead to a comprehensive prohibition on cooperation, but rather to a prohibition on the mixing of powers. The existing distribution of powers and finances can be reorganized by amending the constitution – but only up to the indispensable area of the federal principle protected b Article 79 (3) of the German Constitution. The current discussion about the expansion of cooperation possibilities between the Federation and the Länder must take greater account of these limits. Restrictions of the sovereignity of the Länder, which result from the creationand expansion of joint powers andfinancial assistance, must be handled restrictively.Theincreasing blending of powersandimplementation of financial assistance are no panacea for deficits in the fulfilment of tasks by the Länder. The long-term solution lies in an adequate financial allocation of the Länder.
{"title":"Verfassungsrechtliche Grundlagen und Grenzen der Kooperation von Bund und Ländern","authors":"Maik Bäumerich, Maximilian Schneider","doi":"10.3790/verw.52.1.99","DOIUrl":"https://doi.org/10.3790/verw.52.1.99","url":null,"abstract":"Abstract\u0000 Contributing to the discussion about the constitutional prohibition on cooperation (‘Kooperationsverbot’)\u0000 In the political discussion, the term ‘Kooperationsverbot’ (prohibition on cooperation) has become a fixed buzzword. It describes a principle of the GermanConstitution that prevents the Federation from supporting the Länder in the allegedly inadequate fulfilment of their tasks, particularly in the field of education.\u0000 Its constitutional foundation lies in the distribution of powers and finances of the German Constitution between the Federation and the Länder. This distribution is structured differently in the field of jurisdiction, legislation, administration and finance. The overall view of these areas does not lead to a comprehensive prohibition on cooperation, but rather to a prohibition on the mixing of powers. The existing distribution of powers and finances can be reorganized by amending the constitution – but only up to the indispensable area of the federal principle protected b Article 79 (3) of the German Constitution.\u0000 The current discussion about the expansion of cooperation possibilities between the Federation and the Länder must take greater account of these limits. Restrictions of the sovereignity of the Länder, which result from the creationand expansion of joint powers andfinancial assistance, must be handled restrictively.Theincreasing blending of powersandimplementation of financial assistance are no panacea for deficits in the fulfilment of tasks by the Länder. The long-term solution lies in an adequate financial allocation of the Länder.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42415114","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Recently, there have been various conflicts with regard to extravagant or flashy body styling of applicants for police career, like conspicuous tattoos and piercings. The essay discusses the general requirements, which bear uponapplicants in the interest of public image cultivation, separation ofpowers in the light of basic rules. As Article 33 (5) of the Basic Law obligates the state to organize the public service according to traditional principles of German civil service, constitutional law offers a basis to justify interferences in private life, as far as the duties inherent in the servise as police officers require neutrality.
{"title":"Löwentattoos auf Streife?","authors":"Klaus Schönenbroicher","doi":"10.3790/VERW.52.1.41","DOIUrl":"https://doi.org/10.3790/VERW.52.1.41","url":null,"abstract":"Abstract\u0000 Recently, there have been various conflicts with regard to extravagant or flashy body styling of applicants for police career, like conspicuous tattoos and piercings. The essay discusses the general requirements, which bear uponapplicants in the interest of public image cultivation, separation ofpowers in the light of basic rules. As Article 33 (5) of the Basic Law obligates the state to organize the public service according to traditional principles of German civil service, constitutional law offers a basis to justify interferences in private life, as far as the duties inherent in the servise as police officers require neutrality.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42666959","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Providing a comprehensive review of the recent developments in migration and refugee law proves to be an impossible undertaking – one reason being the vast diversity of this area of law, which includes asylum, work or family migration, the other being the mix of actors in the multi-level system. The events of 2015, which are more likely to be referred to as “refugee protection crises” rather than a “refugee crisis”, undoubtedly mark a turning point. They have not only revealed the shortcomings of the Common EU Asylum System, but have triggered a broad societal debate on immigration as such. The focus of the following report will be on refugee law. First, the supra-national aspects of this increasingly Europeanized area of law shall be determined. Furthermore, the recent and various changes in national law shall be analyzed, ranging from the acceleration of asylum procedures, the efforts to limit and control migration up to the establishment of socio-economic incentive structures in order to avoid “bogus” asylum procedures. Finally, the article provides an overview of the perspectives of European and national migration and refugee law.
对移民和难民法的最新发展进行全面审查被证明是一项不可能完成的任务-一个原因是这一法律领域的巨大多样性，其中包括庇护，工作或家庭移民，另一个原因是多层次系统中行为者的混合。2015年的事件，更有可能被称为“难民保护危机”，而不是“难民危机”，无疑标志着一个转折点。它们不仅暴露了欧盟共同庇护制度(Common EU Asylum System)的缺陷，还引发了一场关于移民本身的广泛社会辩论。下一份报告的重点将是难民法。首先，应确定这个日益欧洲化的法律领域的超国家方面。此外，还应分析最近国家法律的各种变化，从加速庇护程序、努力限制和控制移徙到建立社会经济奖励结构以避免“虚假”庇护程序。最后，文章概述了欧洲和各国移民和难民法的观点。
{"title":"Entwicklungen und Perspektiven des Migrationsrechts zwischen Umbruch und Kontinuität","authors":"C. Janda","doi":"10.3790/VERW.51.4.495","DOIUrl":"https://doi.org/10.3790/VERW.51.4.495","url":null,"abstract":"Abstract Providing a comprehensive review of the recent developments in migration and refugee law proves to be an impossible undertaking – one reason being the vast diversity of this area of law, which includes asylum, work or family migration, the other being the mix of actors in the multi-level system. The events of 2015, which are more likely to be referred to as “refugee protection crises” rather than a “refugee crisis”, undoubtedly mark a turning point. They have not only revealed the shortcomings of the Common EU Asylum System, but have triggered a broad societal debate on immigration as such. The focus of the following report will be on refugee law. First, the supra-national aspects of this increasingly Europeanized area of law shall be determined. Furthermore, the recent and various changes in national law shall be analyzed, ranging from the acceleration of asylum procedures, the efforts to limit and control migration up to the establishment of socio-economic incentive structures in order to avoid “bogus” asylum procedures. Finally, the article provides an overview of the perspectives of European and national migration and refugee law.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43022259","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In the last five years (2014– 2018) judgements of the German Federal Administrative Court (Bundesverwaltungsgericht) have significantly influenced the German planning law (Baugesetzbuch). This article provides a representative overview of these decisions. It also explains their influence on the German planning law with a particular emphasis on the law of urban landuse planning (Bauleitplanung) and building consents (Baugenehmigung). The article also takes into account some decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) as well as the German Federal Court of Justice (Bundesgerichtshof). Both courts have adjudicated on compensation for expropriation. Furthermore, the German Federal Constitutional Court has given advice on the preservation of deficient plans whereas the German Federal Court of Justice also delivered judgements on urbanistic contracts.
{"title":"Höchstrichterliche Rechtsprechung zum Planungsrecht","authors":"M. Kment","doi":"10.3790/VERW.51.4.559","DOIUrl":"https://doi.org/10.3790/VERW.51.4.559","url":null,"abstract":"Abstract\u0000 In the last five years (2014– 2018) judgements of the German Federal Administrative Court (Bundesverwaltungsgericht) have significantly influenced the German planning law (Baugesetzbuch). This article provides a representative overview of these decisions. It also explains their influence on the German planning law with a particular emphasis on the law of urban landuse planning (Bauleitplanung) and building consents (Baugenehmigung). The article also takes into account some decisions of the German Federal Constitutional Court (Bundesverfassungsgericht) as well as the German Federal Court of Justice (Bundesgerichtshof). Both courts have adjudicated on compensation for expropriation. Furthermore, the German Federal Constitutional Court has given advice on the preservation of deficient plans whereas the German Federal Court of Justice also delivered judgements on urbanistic contracts.","PeriodicalId":36848,"journal":{"name":"Verwaltung","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2018-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43986195","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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