Die verfassungsrechtlich problematische erstinstanzliche Zuständigkeit des Bundesverwaltungsgerichts

Abstract

As an appellate court, the Federal Administrative Court’s main task is to ensure uniform jurisprudence. In order to fulfil this task, the Federal Administrative Court – like other appellate courts – is generally exempt from the extensive obligation to investigate the facts. However, the legislator has provided the Federal Administrative Court with a catalogue of first- and last-instance jurisdiction that has become increasingly detailed over time. Such a concentration of jurisdiction at the Federal Administrative Court must be an exceptional case and always requires a compelling objective reason. The mere political desire to speed up the process cannot constitute such a compelling objective reason. According to the constitution, the main task of Federal Court judges must be to act as reviewing judges. Overall, the catalogue of competences assigned to the Federal Administrative Court at first instance in Section 50 (1) VwGO (Code of Administrative Court Procedure) is unconstitutional because it is too diverse and covers cases that can also be handled and decided well (or even better) by the administrative courts of the Länder. However, a compelling objective reason for the first instance jurisdiction of the Federal Administrative Court is to be affirmed in particular in the allocation of jurisdiction for proceedings concerning the legal relations in the Federal State, between the Federation and the Länder, as well as between different Länder. In the important case of planning approval procedures, the jurisdiction of the higher administrative courts at first instance can generally be assumed, unless an overriding federal interest (e. g. the concrete threat of disruption to the overall economic situation) justifies the jurisdiction of the Federal Administrative Court. The article proposes constitutional shifts of jurisdiction at first instance from the Federal Administrative Court to the higher administrative courts in some cases. This should allow the Federal Administrative Court to focus more on its role as an appellate court.