Recht auf Vielfalt – auch bei der elektronischen Behördenkommunikation? Ansprüche auf Tätigwerden des Verordnungsgebers dargestellt am Beispiel des § 3a Abs. 2 S. 4 Nr. 4 VwVfG

Abstract

Right to diversity — even at the Electronic Communication with the Authorities?

Claims for Action of Regulation Provider Representet by the Example of § 3a Abs. 2 S. 4 Nr. 4 Administrative Procedures Act

The German federal e-government act extends the range of permitted replacements of the written form by methods of electronic communication in the German Law of Administrative Proceedings. Apart from the qualified electronic signature, “De-Mail”, i.e. the state-regulated secure means of communication, will in the future also be suitable for fulfilling written form requirements by law. Additionally, § 3a Abs. 2 S. 4 Nr. 4 of the German VwVfG now entitles the government to equate further means of secure communication by federal ordinance given that they authenticate the data transmitter, the integrity of the transmitted record, and ensure freedom from barriers. The essay examines whether companies providing such means of secure communication can make a claim to be added to the ordinance, and further what remedies they have to enforce such a claim. Those claims can, on the one hand, be founded on the state’s objective enactment duties, and, on the other hand, on subjective rights of companies. Furthermore, the difference between claims against the government for the enactment and for the supplementing of statutes and ordinances is described. Generally, legal entitlements to the enactment of an ordinance are uncommon. Given that “De-Mail” is permitted by law, however, such entitlements are necessary to equalize competitors’ opportunities. As long as no such ordinance exists, competitors are entitled to demand an enactment of a statute under the less strict material prerequisites of supplementing a statute. Unjustified distinctions and effects on competitive positions may even force the government to act due to the constitutional principles of equality and freedom of profession.

Eventually the authors express the hope that (unlike the qualified electronic signature) the recently permitted solutions to replace written form requirements spread successfully and that the government soon exercises its right to equate further solutions and services in the interest of a more modern and resident-friendly administration – without the providers having to take legal action.