Abstract

Once a ministry, a local government or any other administrative agency has decided to act on a certain matter, another question quickly arises: how should the administration act or, in other words, what legal instrument should be used? This decision seems to be any administration’s daily business, but if we look more closely into the matter, central legal questions as to the characteristics and consequences of this choice still remain open. This article focuses on two legal instruments in German administrative law that are often used interchangeably: regulations (Rechtsverordnungen) and general administrative acts (Allgemeinverfügungen).

A great many decisions in the jurisprudence show that problems of how to differentiate between these legal instruments are still unresolved. Recently, the topic has gained significant attention due to the administrative instruments used during the coronavirus pandemic. Still, problems of delineation come up in many different areas of administrative law, and are particularly significant for guaranteeing the rule of law. For this reason alone, these demarcations represent a cornerstone of the doctrine of legal instruments used by the administration. However, the need to differentiate also raises the question of what legal nature the decision between a general administrative act and a regulation actually has. Courts and academia often content themselves in describing these decisions as discretionary ones – but this raises further questions. What type of discretion is involved? What does this imply with regards to the legal limits of the administration when deciding between the two legal instruments? If the selection goes wrong, will courts help?

This article argues that the selection of legal instruments by the administration is rightly described as being one where discretion is involved. What is more, those decisions and the problems they raise should be analysed through the lens of the doctrine of errors in discretionary decisions in order to systematically understand the pitfalls and consequences of instrument choice.