Правоприменение (Sep 2019)
Preclusion in German administrative proceedings
Abstract
The subject. The article describes preclusion in German Administrative Law.The purpose of the paper is to confirm or disprove hypothesis that the preclusion is an integral part of the administrative and judicial practice of Germany, despite its low efficiency.The main results and scope of their application. There are relations of between the constitutional principle of legal protection (Art. 19 Abs. of the Basic Law for the Federal Republic of Germany) and preclusion. It is shown that there are different types of preclusion in German Administrative Law, depending on the status of the administrative procedure. It can occur in the administrative process between citizen and the administrative authority and in the administrative court process. In both acts there is to differ between those who plea an infringement of their own rights and those who consider the rights of third parties.Examples for preclusion from different areas of the law like tax or environmental law are given. Another aspect is the difference between formal and material preclusion. While formal preclusion is limited to the administrative process and does not affect the administrative court case, material preclusion effects both acts, the administrative process and the court case.The next part concentrates on the limits set by the constitution and European law. A decision by the European Court of Justice and by the Federal constitutional court of Germany (Bundesverfassungsgericht) are presented to specify these limits. The ECJ has a stricter approach than the German constitutional court, which ruled, that preclusion does not violate the constitutional principles of legal protection and fair hearing. Nonetheless the ECJ also agreed laws that hinder abusive pleas.Conclusions. The last part contemplates the practicability of preclusion and concludes, that the effects are relatively modest and the target of acceleration is often not attained. However, the German model of preclusion has a disciplining effect on participants in administrative procedures and the judicial process; has firmly entered German administrative and judicial practice and does not contradict the constitutional guarantee of legal protection.
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