ADDITIONAL PROVISIONS TO ADMINISTRATIVE ACTS

  • Jörg Pudelka GlZ Country
Keywords: administrative act, discretion, indeterminate legal concepts, condition, determination of terms, instruction, additional provision

Abstract

Purpose. Preconditions for the enactment of an administrative act and the legal effects following from enactment of such an act are not always absolutely clear. The reason is life’s diversity and the related fact that in life it is impossible to plan everything in advance, therefore, it is also impossible to regulate each detail by law. In this context, there is the need to

 have certain flexibility in issues connected with the application of legal regulations (as part of the regulatory scope) and their impact (as part of the legal effects of the regulation).

Methods. As concerns the regulatory scope, this is implemented by the use of indeterminate legal concepts (assessment). But in turn, the concepts shouldn’t breach the principle of the rule of law, and, at the same time, they must be clearly stated. In practice, this is achieved mainly through specifications by a long-term judicial practice which determines the relevant administrative practice.

Results. As concerns legal effects, there are regulations providing for discretion and therefore ensuring the possibility for the administrative authority to select the appropriate addressee and means of action. In this context, the administrative authority may also choose whether or not to publish an administrative act with an additional provision. Such additional provisions include determination of the terms, conditions, instruction, a clause on revocability and clause on imposition or modification of an obligation. If the administrative act is published at the discretion of the executive authority, then the act may be extended by additional provisions at the appropriate discretion of the executive body. If the administrative act is not issued under the discretion of the executive body, additional provisions may be added if it is definitely permitted by law or if the additional provision is required only for ensuring the fulfillment of the legal preconditions for the enactment of an administrative act.

Conclusions. The article covers the nature and preconditions for enacting additional provisions in administrative law.

References

Kopp, F.O., Ramsauer, U. (2015). Verwaltungsverfahrensgesetz: VwVfG. Kommentar [Administrative Procedure Act: VwVfG. comment]. München: C.H. Beck [in German].

OVG (1966). Oberverwaltungsgericht Rheinland-Pfalz hat seinen Sitz in Koblenz [Higher Administrative Court Rhineland-Palatinate is located in Koblenz]. DÖV, no. 209 [in German]

Savigny, F.C. von. (1840). System des heutigen römischen Rechts [System of today’s Roman law]. Berlin: Veit [in German].

Mitgliedern des Gerichts (1991). Entscheidungen des Bundesverwaltungsgerichts (BVerwGE) [Decisions of the Federal Administrative Court (BVerwGE)]. Köln: Carl Heymanns Verlag [in German].
Published
2019-10-01
How to Cite
PudelkaJ. (2019). ADDITIONAL PROVISIONS TO ADMINISTRATIVE ACTS. Administrative Law and Process, (2(25), 108-117. https://doi.org/10.17721/2227-796X.2019.2.07
Section
Foreign administrative law and procedure