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Filing of a Suit

If the objection authority has rejected the objection, the service provider can seek legal remedy from administrative courts. Compliance with the legal instructions enclosed by the responsible authorities with the notification is absolutely essential in this case as well.

The correct choice of the type of legal action depends on the objective pursued by the plaintiff.

The action to rescind pursuant to Section 42 (1) Var. 1 VwGO (Anfechtungsklage) is the appropriate form of legal action if and when the plaintiff can achieve his or her objective simply by the rescission of the administrative act, such as is the case if an order prohibiting the commercial activity has been issued. If the suit is successful, the burdening administrative act is rescinded.

If, on the other hand, the service provider’s application for a permit or some other favourable administrative act has been rejected, the rescission of this decision will not be sufficient to obtain the desired notification.

In this case, it is advisable to file a suit to compel the authority to perform the administrative act for the plaintiff’s benefit in accordance with Section 42 (1) Var. 2 VwGO (Verpflichtungsklage). If the service provider’s suit is successful, the authority will be required to issue the requested administrative act or to reconsider the application.

If the authority has issued the permit, but — contrary to the application — made it dependent on charges or other subsidiary conditions, the applicant may also, after the conclusion of an unsuccessful objection procedure, file a so-called isolated action to rescind (isolierte Anfechtungsklage) which seeks solely to rescind the burden of the subsidiary conditions. An isolated action of this type is permissible if the subsidiary conditions can be logically separated from the primary administrative act.

The action to rescind and the suit to compel the authority to perform the administrative act for the plaintiff’s benefit must be filed in writing at the court or stated to the court official for the record within one month after the objection notice has been served. The instructions for legal remedy which are included with the objection notice will indicate which court has jurisdiction in the specific case.

If the authority has not issued a decision regarding an application for issue of approval or a permit within a reasonable period (no less than three months), the applicant may file a petition with the administrative court to institute the so-called proceedings for failure to act pursuant to Section 75 VwGO (Untätigkeitsklage) as a subcategory of the suit to compel the authority to perform the administrative act for the plaintiff’s benefit. The plaintiff may in this case as well obtain a judgement requiring the authority to issue the requested administrative act or to reconsider the decision.

Circumstances may be slightly different in cases in which the so-called approval fiction (Genehmigungsfiktion) pursuant to Section 42a VwVfG (German Administrative Procedures Act) applies. In accordance with Section 42a (1) VwVfG, the requested permit is deemed granted after expiration of the period designated for the decision, provided that this is stipulated in the legal statute and the application was adequately specific. Since the applicant can then request a written certification of the occurrence of the approval fiction in accordance with Section 42a (3) VwVfG, the need for legal protection required for the proceedings for failure to act is lacking in such cases as a rule.

If the service provider seeks the performance of an official act other than the issue or rescission of an administrative act, the general action for performance (allgemeine Leistungsklage) is the correct choice.

If the objection authority has rejected the objection, the service provider can seek legal remedy from administrative courts. Compliance with the legal instructions enclosed by the responsible authorities with the notification is absolutely essential in this case as well.

The correct choice of the type of legal action depends on the objective pursued by the plaintiff.

The action to rescind pursuant to Section 42 (1) Var. 1 VwGO (Anfechtungsklage) is the appropriate form of legal action if and when the plaintiff can achieve his or her objective simply by the rescission of the administrative act, such as is the case if an order prohibiting the commercial activity has been issued. If the suit is successful, the burdening administrative act is rescinded.

If, on the other hand, the service provider’s application for a permit or some other favourable administrative act has been rejected, the rescission of this decision will not be sufficient to obtain the desired notification.

In this case, it is advisable to file a suit to compel the authority to perform the administrative act for the plaintiff’s benefit in accordance with Section 42 (1) Var. 2 VwGO (Verpflichtungsklage). If the service provider’s suit is successful, the authority will be required to issue the requested administrative act or to reconsider the application.

If the authority has issued the permit, but — contrary to the application — made it dependent on charges or other subsidiary conditions, the applicant may also, after the conclusion of an unsuccessful objection procedure, file a so-called isolated action to rescind (isolierte Anfechtungsklage) which seeks solely to rescind the burden of the subsidiary conditions. An isolated action of this type is permissible if the subsidiary conditions can be logically separated from the primary administrative act.

The action to rescind and the suit to compel the authority to perform the administrative act for the plaintiff’s benefit must be filed in writing at the court or stated to the court official for the record within one month after the objection notice has been served. The instructions for legal remedy which are included with the objection notice will indicate which court has jurisdiction in the specific case.

If the authority has not issued a decision regarding an application for issue of approval or a permit within a reasonable period (no less than three months), the applicant may file a petition with the administrative court to institute the so-called proceedings for failure to act pursuant to Section 75 VwGO (Untätigkeitsklage) as a subcategory of the suit to compel the authority to perform the administrative act for the plaintiff’s benefit. The plaintiff may in this case as well obtain a judgement requiring the authority to issue the requested administrative act or to reconsider the decision.

Circumstances may be slightly different in cases in which the so-called approval fiction (Genehmigungsfiktion) pursuant to Section 42a VwVfG (German Administrative Procedures Act) applies. In accordance with Section 42a (1) VwVfG, the requested permit is deemed granted after expiration of the period designated for the decision, provided that this is stipulated in the legal statute and the application was adequately specific. Since the applicant can then request a written certification of the occurrence of the approval fiction in accordance with Section 42a (3) VwVfG, the need for legal protection required for the proceedings for failure to act is lacking in such cases as a rule.

If the service provider seeks the performance of an official act other than the issue or rescission of an administrative act, the general action for performance (allgemeine Leistungsklage) is the correct choice.