Wider den Begriff der “Nebenbestimmung“. Kritische Bemerkungen zu einem Rechtsinstitut

Abstract

“Countering ‘Ancillary Clauses’ in Administrative Decisions: Some Critical Remarks”

This paper deals with “ancillary clauses” (Nebenbestimmungen) in the context of § 36 of the Administrative Procedures Act (Verwaltungsverfahrensgesetz)—a federal statute that has been enacted almost identically in all Länder. These form part of administrative decisions (Verwaltungsakte) and comprise conditions, time-limits, additional obligations, and reservations of revocation or subsequent addition of obligations.

The correct form legal protection in relation to ancillary clauses has long been debated: should it be a negative remedy directed against the ancillary clause itself (Teilanfechtungsklage), or a positive remedy intended to achieve a new primary decision ((Teil-)Verpflichtungsklage) The administrative courts have only recently reached a relatively clear position and now appear to grant claimants the negative remedy in all cases.

It is argued here that the manner and form of review crucially depends on whether the ancillary clause could form an administrative act on its own (independent clauses) or whether it can only be part of the decision to which it is attached (accessory clauses). The terminology of the statute, grouping these two phenomena together, is therefore misleading. This view is supported by a closer scrutiny of the jurisprudence in this area: In relation to accessory clauses, the negative remedy is in fact administered as a positive remedy in disguise. In light of this background, the article proposes to apply the established concepts of judicial review also in relation to “ancillary clauses”, and to discard a more extensive use of this statutory notion than is actually required by statute.