Abstract

The Suspension of Administrative Acts due to a Change of Circumstances

During the international political and military crisis in Ukraine in 2014, a German armaments manufacturer intended to export a training camp for field exercise to the Russian Ministry of Defence. Exports of weapons and military engineering require permission (Ausfuhrgenehmigung) from the Bundesamt für Wirtschaft und Ausfuhrkontrolle, a government agency under the control of the Federal Ministry for Economic Affairs and Energy. As this permission had been granted before Russia’s military intervention in Ukraine, the considerable change of circumstances led to a re-assessment of the security situation and raised the question of how to deal with the permission. Section 49(2) of the Federal Administrative Procedures Act allows for a cancellation (Widerruf) of an administrative act (Verwaltungsakt) due to a change of circumstances, such as where the permission would have been denied had the circumstances changed before the permission was granted. However, such a cancellation irrevocably voids the administrative act. In some cases, it may be more appropriate to only suspend the permission in order to monitor the situation before making a final decision. In the case at hand, the Bundesamt therefore ordered the temporary suspension (Aussetzung) of the permission arguing that section 49(2) of the Administrative Procedures Act allowed not only for a cancellation but, a maiore ad minus, also for a suspension of administrative acts.

This assumption raises two questions: First, what is the distinct legal character of a suspension of an administrative act compared to its ultimate cancellation? Second, what are the specific legal requirements for such a suspension? With regard to the first question, the article concludes that the suspension relates to the enforceability (Vollziehbarkeit) of administrative acts, and that only validity (Wirksamkeit) and enforceability should be used to categorize the legal effects of administrative acts; other current differentiations such as interior and exterior validity or validity and legal existence are dismissed. Concerning the second question, the article analyses several legal provisions in different areas of administrative law, which allow for the suspension of administrative acts but shows that no such explicit legal basis exists in the field of foreign trade. This calls for an in-depth analysis of whether a suspension order can be based on a legal provision authorizing the cancellation of an administrative act. The article concludes that less intrusive measures (Minusmaßnahmen) can replace measures provided for in a legal provision only under specific circumstances. It is argued that the requisite conditions are in principle fulfilled when a short-term suspension order referring to the temporary character of a change of circumstances is based on section 49(2) of the Administrative Procedures Act.