Robert Seegmüller is a judge at the Federal Administrative Court and Vice President of the Constitutional Court of the State of Berlin. Here he explains why the Basic Law is the basis for all legal decisions and how the rules determine our lives.
Wherever people live together in one place, rules are needed for everyday interaction. Majority voting has proven to be the best way to create such rules. They ensure that rules for everyday interactions are always viewed as correct and worth following by a majority of those affected by them.
The discussion process that precedes its creation can also have a pacifying effect if the minority has enough say in it and, in the end, even if they do not get their way, feels heard and understood by the majority.
Constitutions contain rules by a qualified majority of the population for the creation of rules by the simple majority of that same population. They describe the process of rule-making and ensure that the respective minority is sufficiently heard in the rule-making and that the simple majority’s rules for everyone’s coexistence do not place an excessive or unreasonable burden on the minority.
The Basic Law also contains rules for changing the rules of the qualified majority for rule-making by the simple majority – the so-called eternal guarantee – the ten commandments, so to speak, for the coexistence of people in our country, which must always be observed, no matter what happens.
In order to enforce its validity, the Constitution also stipulates that the eternally applicable rules take precedence over the ordinary constitutional law established by the qualified majority and over the specialized law established by the simple majority, and that the ordinary constitutional law takes precedence over the specialized law.
This hierarchy must be observed by all state powers and in every situation. Ultimately, courts are called upon to settle disputes about the content of the legal norms mentioned and their priority. As far as they are called upon, they defend the relevant regulations by ensuring compliance with them.
What exactly does this look like at an administrative court, a higher administrative court and the Federal Administrative Court? Around 2,500 judges work at the 51 administrative courts in Germany.
They usually decide factually and legally simple cases alone. They decide difficult cases with a team of three professional judges and two volunteer judges. If one of the parties to the dispute does not agree with the decision of the administrative court, they can try to have it corrected before one of the 15 higher administrative courts (in some countries, the administrative court). This decision is regularly made by a panel of three professional judges. Sometimes two volunteer judges also take part.
Decisions of the higher administrative courts can be appealed before the Federal Administrative Court. This court makes decisions either with a panel of three or five professional judges. Ideally, legal disputes should be decided in the first and last instance before the administrative court. Higher administrative courts and the Federal Administrative Court, on the other hand, primarily serve to control the quality of lower-instance decisions and also to develop the law by interpreting ordinary law and constitutional law.
If a plaintiff defends himself before the administrative court against a state intervention in his rights, for example against the fact that the mayor of a city has withdrawn his, a self-employed taxi driver’s, license to transport passengers commercially – i.e. to drive a taxi – the administrative court regularly examines it first whether the state action that the plaintiff is complaining about actually affects his rights.
The fundamental rights of the Basic Law regularly play an important role. They form a protective area around each and every one of us, into which the state may only intervene with express legal authorization. In the case of the taxi operator, for example, the taxi driver’s professional freedom would be affected by the withdrawal of his passenger transport license.
If, as in the case described, the state needs a basis for authorization for its actions, the administrative court searches the entire body of applicable law to see whether there are legal norms that authorize the state to take the action complained of by the plaintiff.
In the case of the taxi operator, one could think of the regulations for the withdrawal of illegal or the revocation of lawful permits (administrative acts). Special regulations in the Passenger Transport Act and the Trade Regulations also come into consideration.
If, as here, there is more than one regulation that can be considered as a legal basis, the administrative court will further examine which of the regulations should be examined with priority. There are special rules for this – e.g. the regulation issued later supersedes the regulation issued earlier in its scope. The more specific regulation also regularly displaces the more general one. In our case, the delimitation of the authorizations for withdrawal and revocation would be based on whether the authorization that is to be withdrawn was compatible with the applicable law – legal – when it was issued or not.
Once it has finally been clarified which regulation is to be used to decide the case, the administrative court regularly first checks whether the authority that acted was also responsible for it – both factually and locally. There are many and very detailed regulations for this – mostly in the federal states.
In our case, the mayor would probably be technically and locally responsible for withdrawing the permit if he had previously granted this permit for the area of his city. The administrative court then checks whether the mayor followed the prescribed procedure. At this point, there is often a dispute about whether the person concerned had to be heard before the controversial sovereign act was issued and whether this hearing was carried out properly.
The fundamental right to be heard is partly derived not only from the respective Administrative Procedure Act, but also from the rule of law principle of the Basic Law (Article 20 Para. 3 GG).
If the challenged sovereign act has finally been issued in accordance with the formalities, the administrative court begins to examine the substantive legality of the challenged sovereign act. The first focus here is whether the enabling basis is compatible with the constitution at all.
In this respect, the administrative court takes into account whether the norm provider – in the case of the regulations on the withdrawal and revocation of sovereign acts of the state authorities and municipalities, the state legislature – was also authorized to issue the above-mentioned regulations in accordance with the provisions of the Basic Law on legislative competence.
It must then be examined whether they are compatible with substantive constitutional law – in particular fundamental rights – in the case of federal laws of the Basic Law – in the case of state laws of the Basic Law and the relevant state constitution.
In our case this would probably be unproblematic to say yes. The state legislature may issue regulations for administrative activities within its area of responsibility. It is also compatible with the fundamental rights of the Basic Law and the state constitutions that he authorizes his authorities to abolish illegal acts of sovereignty as well as lawful acts of sovereignty, for example if the prerequisites for their issuance are subsequently no longer applicable.
If the applicable regulations are compatible with constitutional law – which is fortunately the case for most of them – the actual work of the administrative court follows.
It must take a close look at the relevant authorization basis and determine under what conditions it may be applied. The rule is that each word can be its own prerequisite – its own element of the crime. The administrative court determines the significance of each element of the offense by applying the rules of legal interpretation.
In doing so, it looks at the wording of the constituent element, its history, the meaning and purpose of the provision and the system of the entire law. It then compares the result of its interpretation of the norm with the facts it has determined and decides whether the prerequisite for applying the norm is met.
Once this step has been completed, the administrative court must further consider whether the norm orders a so-called bound decision, whether the authority must apply the legal consequence specified there if the prerequisites for the offense are met, or whether the legislature gives it several options for action.
In both cases, the administrative court must – if discretion is granted, further points are added – check whether the legal consequence specifically ordered by the authority – beyond the question of the general compatibility of the authorizing basis with constitutional law – is compatible with it in the specific individual case; It must therefore be examined whether the inclusion of the specific case in the scope of application of the relevant enabling basis is compatible with constitutional law – in particular with fundamental rights or the principle of proportionality of the Basic Law.
If the plaintiff does not seek legal protection from the administrative court against an encroachment on his rights, but rather wants to demand a state benefit – such as a subsidy for the purchase of an e-bike, the administrative court must first search through all applicable law to see whether there are regulations that convey such a claim or whether there is at least a state administrative practice that actually, de facto regularly provides for the sought-after claim if certain conditions are met.
The general principle of equality (Art. 3 Para. 1 GG) regularly plays a major role at this point. It obliges all state authorities to treat equals equally and unequals unequally. In the case mentioned, the administrative court must therefore examine whether and under what conditions the state grants subsidies for the purchase of e-bikes and whether the plaintiff meets these requirements. If the plaintiff fulfills this requirement, the administrative court obliges the state to grant the requested subsidy.