Ansprüche und Klagen im Verwaltungsrecht

2019 ◽  
Vol 52 (2) ◽  
pp. 239-258
Author(s):  
Andreas Funke
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Reference Point ◽  
Legal Protection ◽  
Administrative Law ◽  
Administrative Courts ◽  
Judicial Actions ◽  
Inspiring Ideas

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.

scholarly journals Addressing Disconnection: Automated Decision-Making, Administrative Law and Regulatory Reform

2021 ◽  
Vol 44 (3) ◽  
Author(s):  
Anna Huggins
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Regulatory Reform ◽  
Administrative Law ◽  
Government Agencies ◽  
Mental Process ◽  
Automated Systems ◽  
Regulatory Evolution ◽  
Distinctive Features ◽  
Automated Decision Making

Automation is transforming how government agencies make decisions. This article analyses three distinctive features of automated decision-making that are difficult to reconcile with key doctrines of administrative law developed for a human-centric decision-making context. First, the complex, multi-faceted decision-making requirements arising from statutory interpretation and administrative law principles raise questions about the feasibility of designing automated systems to cohere with these expectations. Secondly, whilst the courts have emphasised a human mental process as a criterion of a valid decision, many automated decisions are made with limited or no human input. Thirdly, the new types of bias associated with opaque automated decision-making are not easily accommodated by the bias rule, or other relevant grounds of judicial review. This article, therefore, argues that doctrinal and regulatory evolution are both needed to address these disconnections and maintain the accountability and contestability of administrative decisions in the digital age.

scholarly journals The Unmeritorious ‘Legality’/‘Merits’ Distinction in Singapore Administrative Law

2021 ◽  
pp. 1-32
Author(s):  
Benjamin Joshua Ong
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
General Principle ◽  
Case Law ◽  
Administrative Law ◽  
Decision Making Process ◽  
Rough Approximation ◽  
Executive Decision Making ◽  
The Law

Abstract The Singapore courts often state that judicial review of executive decision-making ought only to involve an inquiry into the ‘legality’ of a decision or the ‘decision-making process’, and not the ‘decision itself’ or its ‘merits’ – let us call this the ‘Distinction’. This article argues that the Distinction should be expunged from Singapore law. The Distinction has its roots in English case law which aimed to prevent the courts from arbitrarily substituting their decision for the executive's by reason of mere disagreement. But Singapore case law has gone further and treated the Distinction as a general principle applicable to all of administrative law. However, the Distinction is too vague for this purpose (as seen from Singapore cases which have interpreted the distinction inconsistently). It is conceptually problematic, incompatible with the practicalities of judicial review (particularly substantive review as recognised in Singapore law), and has occasionally been paid lip service but not followed in substance. The Distinction cannot form a coherent principle to guide the courts and ought to be replaced by a more nuanced application of constitutional principles relevant to determining the appropriate scope of review. Whatever these principles may be, and however they are to be balanced, the Distinction can be but an over-inclusive rough approximation of them which hampers the development of the law.

scholarly journals Constitutional principles in public administrator's decision-making under the case law of the Supreme Administrative Court of Lithuania

2018 ◽  
Vol 2 (1) ◽  
pp. 109-115
Author(s):  
Ieva Deviatnikovaitė
Keyword(s):  
Decision Making ◽  
Public Administration ◽  
Judicial Review ◽  
Case Law ◽  
Constitutional Court ◽  
Constitutional Principle ◽  
Family Names ◽  
Administrative Courts ◽  
The Republic

This paper serves few purposes. First, it examines the principles of public administration in Lithuania. Good administration principle is analysed as constitutional principle relying on the case law of the Supreme Administrative Court of Lithuania. Second, it explores impact of the decisions of Constitutional Court of the Republic of Lithuania to the contemporary judicial review of Lithuanian administrative courts. Therefore, one of the latest rulings of the Supreme Administrative Court of Lithuania related to the spelling of names and family names in the passports of citizens of the Republic of Lithuania will be reviewed.

Administrative Procedure and Judicial Review in Austria

2021 ◽  
pp. 37-40
Author(s):  
Stefan Storr
Keyword(s):  
Judicial Review ◽  
Legal Protection ◽  
Judicial System ◽  
Administrative Authority ◽  
Administrative Procedure ◽  
Administrative Power ◽  
Fundamental Significance ◽  
General Article ◽  
Administrative Courts ◽  
Court Of First Instance

This chapter discusses administrative procedure and judicial review in Austria. In Austria, there exists a principle of the 'exclusivity of legal sources'. Legal protection is only possible against certain administrative legal sources. In general, Article 130 B-VG pronounces judgments on complaints by the administrative courts against rulings by administrative authorities for unlawful acts; against the exercise of direct administrative power and compulsion to carry out unlawful acts; and on the grounds of breach of the duty to reach a decision by an administrative authority. In principle, the administrative court has to examine the case comprehensively; in general, there is no exclusion for specific administrative matters. It is of fundamental significance for the Austrian administrative judicial system that an administrative court of first instance generally decides on the merits of the case. Only in very exceptional cases does it set aside the contested act by the authority and refer the case back to it.

Administrative Law and the Chinese Legal System: Some Issues on Judicial Review of Administration Activity

2021 ◽  
pp. 326-338
Author(s):  
Danilo Pappano
Keyword(s):  
Legal System ◽  
Judicial Review ◽  
Legal Protection ◽  
Economic Structure ◽  
Administrative Law ◽  
Current Phase ◽  
Gradual Change ◽  
State And Society ◽  
The Relationship ◽  
Theoretical Issues

This chapter explains how, in the current phase of development in the Chinese legal system, administrative law has emerged. China is undergoing a process of subjecting power to the rules which, for administrative law, concern the relationship between state and citizen, and more generally that between state and society. The current evolution is particularly rapid and favoured by changes to the economic structure in recent years, and this explains the fact that administrative law in China is on the eve of great expansion. The chapter examines some theoretical issues relating to judicial review of the exercise of administrative activity, an area which has seen the manifestation of the process of legalization of administrative power, as has happened in Western legal systems. Over the last few years, the development and interpretation of the instruments available has progressed while the availability of instruments has tended to broaden, even if currently legal protection is still in its early stages. However, all this will naturally require a long period of settling, as in Western countries; hence the evident need for gradual change as the fruit of a realistic approach.

Three Decades of Tension: From the Codification of Migration Decision-Making to an Overarching Framework for Judicial Review

2020 ◽  
Vol 48 (3) ◽  
pp. 401-431
Author(s):  
Grant Robert Hooper
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Subject Matter ◽  
Administrative Law ◽  
Migration Decision ◽  
Natural Justice ◽  
Base Level ◽  
Executive Decision Making

Over the last three decades, Australian administrative law decisions about who will be allowed to stay in Australia have led to more interaction and tension between the elected government (Parliament and Ministry) and the judiciary than any other subject matter. This interaction has been intensified by Parliament’s attempts to amend the Migration Act 1958 (Cth) to codify judicial review and the procedures to be followed when making decisions under the Act. These amendments were made with the specific aim of minimising, if not practically eliminating, the judiciary’s influence over executive decision-making. However, this outcome has not been achieved. Rather, through a thousand cuts, or more literally cases, the codification efforts of Parliament have been weakened. Instead, the judiciary has put in place an overarching judicial review framework centred on the inherently flexible concept of jurisdictional error. This framework places equal emphasis on both express and implied statutory obligations and procedures. Express procedures have often being interpreted to include judicially created natural justice-like obligations and implied procedures often including other natural justice-like obligations or at least a base level of fairness premised on the constitutionally entrenched premise that the executive cannot decide arbitrarily.

Composite Procedures and Judicial Review in the Single Resolution Mechanism: Iccrea Banca

2021 ◽  
Vol 13 (4) ◽  
pp. 109-125
Author(s):  
Menelaos Markakis
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Case Law ◽  
Administrative Law ◽  
Banking Union ◽  
Single Supervisory Mechanism ◽  
Single Resolution Mechanism ◽  
Ratio Decidendi ◽  
Judicial Protection ◽  
National Measure

Iccrea Banca is a landmark ruling regarding judicial protection in composite decision-making procedures. Its importance extends not only to the Banking Union but also to EU administrative law more broadly. This paper argues that the Court's judgment in Iccrea Banca affirms the recent Berlusconi and Fininvest ruling regarding the Single Supervisory Mechanism, and extends its ratio decidendi to the Single Resolution Mechanism. It further argues that Iccrea Banca leaves open a number of questions, notably as regards the irregularities affecting the national preparatory act or proposal that would be reviewed by the CJEU, and the 'legal fate' of that national measure. Furthermore, we do not know which other composite procedures, whether within or beyond the Banking Union, would come to be decided under the principles established in this case. It is likely that more litigation will follow on these matters, and that future case law will provide much-needed answers to the questions left open in Iccrea Banca and earlier rulings.

scholarly journals Control and Accountability: Administrative Courts and Courts of Audit

2021 ◽  
pp. 185-203
Author(s):  
Veith Mehde
Keyword(s):  
Decision Making ◽  
Administrative Law ◽  
Enforcement Mechanism ◽  
Locus Standi ◽  
German System ◽  
Administrative Courts

AbstractThe control of the administration by administrative courts follows very particular rules. Two elements of the German system stand out: first, the intensive type of control which makes the scope for independent administrative decision-making an exception. Second, the quite strict restrictions on locus standi. The development of administrative law by the courts and its application by the administration are an elementary part of the German legalistic tradition. The courts of audit at all levels of government also play an independent role. They can control the proper as well as the efficient use of funds from the respective budgets. While there is no enforcement mechanism, the publication of the findings certainly leads to pressure to comply.

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