Abstract

The common doctrine on administrative acts in Germany holds that the finding of facts by authorities is not merely a procedural duty, but also bears relevance to the substantive legality of an administrative act. By way of example, an authority’s predictive decision can be declared unlawful on substantive grounds when the facts underlying that decision are inaccurate. Furthermore, an authority will have committed a discretionary error if it has failed to ascertain facts which do indeed bear discretionary relevance and, consequently, its decision did not account for these facts. Why does this “duplication” exist?

This article shows how the substantive relevance of complete and accurate ascertainment of the facts is structurally based on three preconceptions: the notion that administrative procedural law merely has a “facilitative function” (“dienende Funktion”), the perspective of administrative court oversight, and the understanding of administrative court oversight as sheer error checking. Since these three preconceptions are themselves ripe for scrutiny, and each is indeed inchoate when used individually, this article presents an alternative dogmatic concept. It assumes a productive function in administrative procedure; supplements the perspective of oversight using that of the administrative measure; and understands administrative court oversight not as simple error checking, but also as a separate illumination of the facts and the law. Thus, an authority’s duty to ascertain the facts and an administrative court’s duty to review the facts can be reconciled, while at the same time the corresponding legal standards can be mapped in a (more) complete and consistent manner. In effect, the “duplication” of procedural and substantive law can be disentangled in favour of a more procedurally oriented approach to fact-finding among authorities and to fact-reviewing among administrative courts without impairing the efficacy of judicial review.