Abstract

In Germany, government agencies are fully bound by statutory law. However, they are only partially bound by court decisions interpreting that law. The most important binding factor that agencies face in this context derives from the concept of res judicata. Res judicata means that court decisions have binding effect only on those parties that were involved in a given court proceeding, e.g. the government agency and the citizen vindicating his rights. If, after a final court ruling, the agency starts a new administrative proceeding, either on its own initiative or pursuant to a request of another citizen, res judicata does not apply. According to German legal doctrine, this is true even if the new administrative proceeding concerns the identical right an individual just defended successfully against the government agency in court. Cases like this occur, for example, after a company successfully sued the Trademark Office to register one of the company's trademarks. If a competitor then challenges the merits of that registration, conventional wisdom has it that the Trademark Office is permitted to decide anew and unrestrictedly whether the trademark is to be deleted from the register, despite the court's previous ruling that ordered the agency to register that very trademark.

We, in contrast, claim that court decisions have a binding effect on agencies if three conditions are met: (1) the new administrative proceeding is conducted by the agency bound by the previous ruling; (2) both the underlying facts and legal circumstances remain unchanged; and (3) the (new) applicant does not claim any right of his own that he did not have the opportunity to defend in the previous court proceeding. We call this a binding effect “across the branches” (gewaltenübergreifende Bindungswirkung), as the executive branch, represented by the government agency, is bound by the judicial branch, represented by the court. We derive this binding effect from two fundamental principles, separation of powers and the rule of law. While separation of powers grants administrative agencies initial authority to interpret relevant statutes, courts remain the ultimate arbiters. Additionally, the rule of law mandates that courts' decisions be final.