Abstract

The “First Take” on the Administrative Law Relation

The French “Privilège du Préalable” as a Potent Concept for German Administrative Law?

In a relatively recent but largely ignored decision, the German Federal Constitutional Court invalidated the statutory privilege of two banks, incorporated under public law, to unilaterally determine and enforce its contractual claims against its customers without prior recourse to the courts. This constitutional glimpse on a special prerogative, exceeding the ordinary rights of private law actors, offers an interesting perspective on some fundamental questions of administrative law. The article claims that precisely this prerogative of unilateral normative and enforceable action epitomizes the specific public power conveyed upon the administration. While German administrative law and doctrine have not clearly conceptualized this central prerogative of the administration, French administrative law has long developed the notion of the “privilège du préalable” to express the eminent position of the administration in the legal relation between the state and its subjects. The article exploits this insight by spelling out the content and legal implications of the French “privilège du préalable” and comparing them to the legal situation in German administrative law. This comparison leads to the conclusion that German administrative law doctrine, while lacking an equivalent concept, should be described as effectively containing its own “privilège du préalable”. On the basis of these findings, the author raises the question of explicitly acknowledging this legal phenomenon by stipulating a similar doctrinal concept for German administrative law. Before answering this question in the affirmative, the article unfolds and reflects on the conditions under which new concepts may legitimately be introduced into the doctrinal analysis and discussion of largely codified legal systems. Given the law-shaping power of new conceptual instruments, new concepts stand under the double condition of (internal and external) coherence and analytical potency. Thanks to its fit with existing legal sources and doctrine as well as its ability to structure a more precise analysis of various contested issues and to clarify the specific character of administrative law, the notion of the “First Take” on the legal relation meets this twofold standard. The adoption of the French “privilège du préalable” into German administrative law and doctrine is therefore warranted.