Doctor of Law, Associate Professor,
Professor of the Department of Administrative Law and Procedure
National Academy of Internal Affairs
Laws and regulations of public administration in Germany
The article is devoted to the problematic issues of laws and regulations of public administration in Germany.
Key words: Laws and regulations; bodies of public administration; Germany.
Development of acts by public administration authorities is one of the most important forms of activity of public administration of EU Member States, including Germany. The study, analysis and implementation of rulemaking ideas of Germany is one of the steps Ukraine towards European integration. This is a real example of the implementation of the theory of administrative law and administrative process of public power. Proper public administration in modern conditions is impossible without certain control of the civil society. These issues raise the relevance of the topic, chosen for analysis in this article.
The purpose of this article is to conduct examination of peculiarities of legal act and regulations of public administration in Germany and problematic issues of administrative discretion.
The development of administrative law in Germany began in the nineteenth century with to establishment of legal boundaries for the administration. In liberal legal state of the nineteenth century, progressive bourgeoisie demanded to restrict administration by the law, in order to reduce the administrative influence public by means of public protection against hazards. The power of the monarch was limited to the basic rights of an individual and by legal rights of Parliament. Legal science has developed state-legal method by which were systematized and explained fragmented regulations. Outstanding achievement of German science was the publication in 1895-1896 Otto Meyer's textbook "General administrative law", the majority of its provisions are recognized to date [1, S. 69-70 ].
The state had to intervene in economic life, in order to contribute the balance of social interests. Thus, the main task of the public administration is to protect from the dangerous challenges. Administrative law determines the legality of acts of the sovereign (the State) as well as judicial and legal protection from them.
The essence of legal state reflected in the rule of law, public authorities are created under the law and their activities shall be guided only by the law. The rule of law principle means that the administration is established by the law and cannot perform activities contradicting the legislation. Administration authorities can not deviate from the law. Administrative actions that violate the law, automatically become invalid, and should be appealed, as illegal to the Administrative Court.
The activities of the public administration are based on the law, which regulations manage issues of structure and competence of public administration.
As the main and initial administrative body the State is recognized, which consists of federal and Land authorities, performing public administration duties through its public bodies. Performance of these tasks is mainly the objective of lands, while the Federation has administrative jurisdiction only in limited spheres. Regarding public administration we should distinguish direct and indirect management. Direct public administration mean when the Federation performs its administrative tasks through own bodies. In contrast, indirect public administration occurs when a public task is performed by administrative unit, created by federation [2, pp . 288-289 ].
Administration may take appropriate actions only if it is authorized by the law. This principle has been developed back in the nineteenth century and is used to protect citizens from violations by government.
Analysis of German scholars of provisions of Federal Law "On administrative procedures" reveals the nine essential features which are determinative:
1) basic type of settlement procedure of performing of public administration is the public administration;
2) the law is focused on decision-making . Public administration is considered as a strict organization for stipulating mandatory decisions;
3) administrative rule-making as a form of specification and self-programming, which is usually lies between parliamentary law and implementation in a particular case, holds no place in the systematization of law;
4) among the executive decisions the unilateral settlement is predominant. administrative act becomes the Central Institute;
5) the law comes from the administrative service functions procedurally legal provisions relating to substantive law;
6) communication links between citizens and public administration are considered as the legal relationship with strictly determined roles.
Citizen pursues his individual rights; public administration, although bound by the right, but, eventually itself is responsible for determining the overall public benefit;
7) according to concepts of law, citizen's interests are primarily aimed at preserving the situation of once achieved benefits. The central role is played by the legal security, legal validity and protection trust. (Protection Trust was a key issue in the development of the law. The basis of trust is based on the idea that public administration is independently responsible for the legality of own acts);
8) existing public administration is presented on the law as a cohesive unity;
9) the law is concentrated inside the country.
Administrative procedures perform a service function: they are designed to provide decision-making in the official result of systematic management activities. This procedure, where the state fulfils its tasks within the basic principles, that comes out from the Basic Law or from the Law provisions.
However, it is believed that the rule of law principle (which was discussed earlier) has reasonable term and can't turn into a relationship of total dependency able to paralyze own actions of public administration [3, p. 51].
Of course, the legislator is not always able to anticipate all possible life situations. Therefore laws provide the administration capacity to act, to choose the form of activity show flexibility and to act according actual circumstances and specific cases. These provide the scope for discretion, which law empowers the administration. The discretion is referred, when the administration under stipulated by the law circumstances may choose between variety ways of action [4 s.231, 232].
The law defines discretion in the words "may" or "has the right to". For example, the law on meetings and demonstrations states: "The authority may dissolve an unlawful assembly."May, but not required to.
There are different types of discretion. In case of choice at the discretion, the Authority chooses one of many possible actions with specific legal consequences.
In order to fulfil its tasks and functions, the public administration authorities adopt laws and regulations. The most important are: resolutions, administrative orders, statutes.
Resolution is abstract and general regulations, content and legal consequences of which targeted on citizens and legal entities are beyond the organizational structure of administration [5 S.136-142].
Administrative orders as acts directed their power inside the organizational structure of the administration. In the absence of external influence, which in Germany is considered as a constructive element of any rule, administrative orders even they are abstract and generic, although they are not considered as regulations.
The statutes are containing legal rules adopted by public law to regulate its own affairs. Statutes variance from laws and regulations in that fact, that they are not adopts by state and legally independent, although subordinated to state organizations. An example is the statute is the construction plan.
Administrative law in Germany rather sensitive to the special role of resolutions in the legal system, since there the excessive adoption leads because excessive acceptance causes reduce of the role of law. Resolution generally, cannot establish norms of primary law. At the same time, it is recognized that the administration possesses a relevant competence in the field of rule-making activity. On the one hand, it allows the state to respond rapidly to changes and to adopt appropriate norms without any additional procedures [2 S.302-304].
However, for the proper division of labour between the legislative and executive branches it is necessary to avoid such a situation when regulations of executive branch power served as replacement of insufficient parliamentary laws. Their task is to relieve the laws from excessive specification.
Article 80 of the Basic Law stipulates that for the adoption of regulations is required empowering law. In addition, p. 1 of Article 80 stipulates the requirement of certainty, according to which the legislator should determine the meaning and scope of authority in the law. Thus, from the very empowering law it is quite clear for what purpose, based on specific powers could be adopted regulations, as well as what content they may have.
However, these requirements are insufficient for the Federal Constitutional Court. Developing its theory of significance impose on the legislator another essential requirement. The Parliament is obliged in principle regulatory areas, and primarily in the implementation of fundamental rights to make all important decisions singly. Significant are particularly intense or prolonged interventions in the basic rights.
The Basic Law contains many prescriptions for the procedure of adoption of regulations, thereby determining of the procedure depends on the body that takes a regulation. Series of restrictions are also stipulated, concerning acceptance by the Federal government of resolutions on a number of issues.
In this way, application of the rulemaking experience of public administration in Germany will accelerate the adaptation of Ukrainian legislation to European standards.
- O. Mayer Deutsches Verwaltungsrecht. –Verlagvon Duncker&Humbold/ Berlin, 1924. –С. 69-70.
- Administrative law of foreign countries: Textbook / Ed. A.N. Kozyrina and M.A. Shmatova . - M .; Spark, 2003. - P. 288-304.
- R. Melnyk, The system of administrative law in Germany / R. Melnyk // Public Law. - 2011. - № 3. - P. 50-53.
- V.P. Chaban, Methodological problems of administrative discretion in administrative law. Philosophical, methodological and psychological problems of law: Theses. dop. III Vseukr. nauch-tearet. conf. (Kyiv, 23 Apr. 2010) Text ed. col. : V.V. Kovalenko, M.V. Kostytskyi, O.M. Dzhuzha and others. - K: Kyiv, nat. University of ext. aff. - 2010.- p. 231,232.
- Descriptive and blanket (referential) elements. V.P. Chaban, Classification of administrative legal acts. Science and law enforcement. State Research Institute of MIA, DNDI MVS №2 (8). - 2010. - S.136-142.