The Persons (having) locus standi in Administrative Litigations

by Pfab Philipp / 11 März 2013 / No Comments

As part of a collegial cooperation we always discuss various aspects of legal issues. This gives rise to contributions that we publish here.

The first article deals with the access to the administrative court.

You can view the article as a pdf file download here.

The original text follows here.


The following essay examines the concept of „locus standi“ in German administrative procedural law. To begin with, the Latin word must be translated into German, since there is no outright translation. Then, we will examine the purpose of this concept in German law and how it can be divided into individual subjects.

I       Concept, purpose

The concept of „locus standi“ originates from Latin law and cannot simply be translated into German. When construing it in a largely European context, the concept of „locus standi“ could be translated with „right of action“, cf. Fuller, NZVwR-Extra, 2008, 9th issue, page 1. However, a broader interpretation asking for the litigant’s access to the competent court would be better, cf. European Court of Human Rights, Seizure of a plane, Serbia and Montenegro – „FRY“, NJW 2006, 197 seq., number 162.

Thus locus standi deals with the admissibility of an action, however not with its well-foundedness, cf. Hufen, Administrative Procedural Law, Verlag C.H.Beck, 8th edition, Munich 2011, 3rd part, § 10, marginal number 1; Schenke, Verwaltungsprozessrecht (Administrative Procedural Law), Verlag C.F. Müller (editor), 13th edition, Heidelberg 2012, marginal number 58. This distinction between admissibility and well-foundedness is essential. The court may not decide on the merits before any and all prerequisites of admissibility have been met. This is the only way to determine the scope of res judicata or force of final judgment, cf. § 121 Rules of Administrative Courts (VwGO). The prerequisites of admissibility must thereby be checked ex ufficio, cf. Kopp/Schenke, VwGO, Verlag C.H.Beck (editor), 18th edition, Munich 2012, before § 40, marginal numbers 9, 10, with reference to the Federal Constitutional Court 40, 361; Munich BayVBl 1984, 757.

Within the meaning of locus standi in German law, the issue of access to court includes the following subjects: the party’s capacity to participate in the proceedings (see number II.1.), the party’s capacity to conduct proceedings in his/her/its own name, his/her/its representation in court, and his/her/its capacity to act in person (see number II.2.) and, in particular, the right of action (see number II.3.).

The other admissibility criteria (bringing the action properly, German jurisdiction, admissibility of the recourse to administrative courts, the correct procedure as well as the subject-matter, local, and instance jurisdiction of the court) will not be dealt with herein.

In German law, such stipulation of the prerequisites to the issue of rulings aims at preventing collective actions from being brought before administrative courts, among others (cf. number II.3.2.).

II      Individual aspects of locus standi

The admissibility criteria are generally classified in two groups, those referring to the participants in the proceedings and those referring to the respective type of action, cf. Hufen, loc. cit., § 12, marginal number 1. Among these various types of action and applications, cf. Kopp/ Schenke, loc. cit., before § 40, marginal number 4, this essay will be limited to the action for rescission and the action against a public authority to compel the performance of an administrative act for one’s benefit (cf. § 42 VwGO). The admissibility criterion relating to such actions, i.e. the right of action (cf. § 42 Abs. 2 VwGO) will be treated thereafter.

1      Capacity to participate in administrative proceedings

The capacity to participate in the proceedings relates to the participants in the proceedings.

Participants in the proceedings

Pursuant to § 63 VwGO, the participants in the proceedings include in particular the plaintiff, the defendant, other interested parties (persons who are not a party to the proceedings, but whose legal interests will be affected by the decision, § 65 VwGO) or the agent representing the federal interest or the public interest, cf. § 63 no. 1 to no. 4 VwGO. These persons may participate in the proceedings and exert their own procedural rights. They may introduce both procedural motions and motions relating to the subject-matter of the proceedings, cf. Kopp/Schenke, loc. cit., § 63, marginal number 1; Schenke, loc. cit., marginal number 449.

The participants are included in the action by being named in the petition. The procedural rules apply to them, and only the participants will be bound by a final judgment, cf. § 121 VwGO. The applicant’s status as participant does not belong to the admissibility criteria, however their capacity to participate in the proceedings is a admissibility criteria, cf. § 61 VwGO.

Capacity to participate in the proceedings

Pursuant to § 61 VwGO, the persons entitled to participate in administrative proceedings include individuals and corporations, but also associations, to the extent that they may have a right to, and government agencies, if the laws of the respective German federal state so provide.

The capacity to participate in the proceedings thus determines the „procedural capacity to be a subject of legal rights and duties“, cf. Hufen, loc. cit., § 12, marginal number 18.

Individual persons have a capacity to participate in administrative proceedings. This also applies if, for instance, a child is not yet born (nasciturus), if the child can be subject to legal norms, cf. Kopp/Schenke, loc. cit., § 61, marginal number 5, with further references.

Corporations have a capacity to participate as well, cf. § 61 no. 1 VwGO. This applies to corporations under private law as well as to corporations under public law, including, in particular (under private law) stock corporations (public limited companies), limited liability companies (private limited companies) and (under public law): the federal government, federal states, municipalities and other corporations having legal personality, such as universities, cf. Hufen, loc. cit., § 12, marginal number 20.

The associations mentioned in § 61, no. 2 VwGO include mainly pluralities of persons who, though not having legal personality, may be entitled to rights under substantial law, cf. Kopp/Schenke, loc. cit., § 61, marginal number 8. This is e.g. the partnership under the Civil Code, cf. Bautzen NJW 2002, 1361.

Pursuant to the laws of a federal state, government agencies may participate, § 61 no. 3 VwGO. In such a case, they act on behalf of the entity they belong to, thereby asserting the rights of other persons (i.e. those of the entity for which the agency acts), cf. Schenke, loc. cit., marginal number 463.

If the litigant’s capacity to participate is missing, the action must be dismissed as inadmissible.

2      The party’s capacity to conduct proceedings in his/her/its own name, representation in court, the party’s capacity to act in person, passive procedural capacity

2.1   The party’s capacity to conduct proceedings in his/her/its own name

The party’s capacity to conduct proceedings in his/her/its own name determines whether a person is able to carry out a procedural act in an effective manner. In a first approach, this capacity corresponds to the legal capacity, cf. § 62 para. 1 no. 1 VwGO. Thus, a baby would have the capacity to participate pursuant to § 61 no. 1 VwGO, but would not have the capacity to conduct the proceedings in his/her own name, example according to Schenke, loc. cit., marginal number 478.

In the case of associations and government agencies, their legal representatives or specially authorized persons act on their behalf, cf. § 62 Abs. 3 VwGO. Thus, for instance, the Federal Republic of Germany is generally represented by the responsible federal minister, cf. Federal Constitutional Court 52, 228; 72, 168; BGHZ 8, 197 = NJW 1953, 380.

The federal states are generally represented by the responsible minister, and the municipalities by their mayor in accordance with the applicable provisions of local government law, cf. Kopp/Schenke, VwGO, loc. cit., § 62, marginal number 14.

If the suing party lacks capacity to conduct proceedings in his/her/its own name, the action must be dismissed as inadmissible.

2.2   Representation in court and the party’s capacity to act in person

As a principle in administrative proceedings, the participants may introduce motions themselves. This means that they have the capacity to conduct a lawsuit, cf. § 67 para. 1 VwGO.

However, higher administrative courts and the Federal Administrative Court require litigants to be represented by lawyers, cf. § 67 para. 4 VwGO. In particular barristers (attorneys-at-law) and law teachers are entitled to represent litigants, cf. Federal Administrative Court 22, 38; NJW 1984, 1474. This rule is aimed at improving the quality of the debate before higher courts.

Any procedural acts by a party lacking capacity to act in person are ineffective, cf. MDR 1976, 781, Mannheim, VBBl 1997, 381.

2.3   Passive procedural capacity

The passive procedural capacity concerns the issue of the defendant of an administrative action.

The statute’s wording concerning this issue is relatively simple – § 78 para. 1 VwGO: „The action must be directed … against…“.

However, it is not clear whether this wording relates to the issue of admissibility (passive procedural capacity) or the issue of well-foundedness (capacity to be sued). The prevailing opinion is also advocated by the Federal Administrative Court, among others. The Federal Court assumes such capacity to be sued, cf. Federal Administrative Court NVwZ – RR 1990, 44, which means that the procedural capacity would have to be checked together with the well-foundedness of the action itself.

In legal literature, however, the opinion gains ground according to which the passive procedural capacity must be seen in connection with the admissibility issue, cf. Schenke, loc. cit., marginal number 546; Hufen, loc. cit., § 12, marginal number 30, Kopp/Schenke, loc. cit., § 78, marginal number 1. According to this opinion, a lacking passive procedural capacity would lead to inadmissibility of the action.

The statute’s wording supports this minority opinion. So does its systematic construction. § 78 VwGO is listed in the 8th Section of VwGO among the other prerequisites of admissibility of the action for rescission and the action against a public authority to compel performance of an administrative act. Hence, the passive side of the procedural capacity pursuant to § 78 VwGO corresponds to the active procedural capacity pursuant to § 42 para. 2 VwGO (see number II.3. below).

The action must be directed against the public corporation whose agency issued the challenged administrative act (the so-called entity principle). To bring the action, however, it suffices to name the agency, cf. § 78 para. 1 no. 1 phrase 2 VwGO.

3      Right of action

In § 42 para. 2 VwGO, the right of action is provided as – additional – prerequisite for admissibility of an action for rescission and an action to compel the performance of an administrative act.

Every administrative act affecting the rights of citizens may be challenged by means of a specific type of action, cf. Hufen, loc. cit., § 13, marginal number 3. Therefore, it must first be examined which type of action is the right one. The action for rescission and the action against a public authority to compel performance of an administrative act relate to the violation of a right by an administrative act or the failure to issue it. Both types of action are hence the „classical“ types of action in administrative proceedings, cf. Hufen, loc. cit., § 14, marginal number 1.

The action for rescission aims at removing the effects of an administrative act. Thus, such action is constitutive. By contrast, the action to compel performance of an administrative act is aimed at constraining an authority to issue a specific administrative act.

All other types of government actions and the possible modes of action and application shall not be further discussed herein.

3.1   Type of action, administrative act

The action for rescission or the action to compel performance of an administrative act may lead to cancellation or issue of an administrative act. Hence, the definition of the challenged administrative act is essential for the admissibility of the action. The general definition of an administrative act is given in general administrative law, in § 35 of the Law of Administrative Proceedings (VwVfG). According to this law, an administrative act is – cf. § 35 phrase 1 VwVfG:

„Any order, decision or other sovereign measure issued or taken by a government agency to settle an individual case in the field of public law and to achieve its direct legal effect outside the agency.“

Settlement means a legally binding order aimed at achieving specific legal consequences. Such an order may found, modify, cancel rights or ascertain them in a binding manner, cf. Hufen, loc. cit., § 14, marginal number 4. An act such as, for instance, an information is no settlement;

The sub-concept sovereign act means a measure taken under public law, for instance if the administration exerts its special powers having their legal basis in public law, cf. Kopp/Schenke, loc. cit., Appendix § 42, marginal number 13;

The concept of individual case means a specific or determinable number of persons. This is given if the target persons are known at the moment at which the measure is issued, cf. Hufen, loc. cit., § 14, marginal number 6;

Agency within the meaning of § 35 VwVfG means the agency that carries out the public administration’s specific tasks at issue (§ 1 para. 4 VwVfG) – this would not be the case for the judicial or legislative power, and finally

The effect outside the agency is meant to exclude purely internal decisions.

3.2   Administrative act, right of action

Pursuant to § 42 para. 2 VwGO, an action is only admissible if the plaintiff can assert that his/her/its rights were infringed by the administrative act, or by its refusal, or the failure to issue it.

Historically, this right of action was intended to exclude the so-called popular action (collective action serving as a test case brought in the public interest). Thus, this right of action is not meant to objectively check the legality of a measure, but instead to sanction the violation of individual rights, cf. Hufen, loc. cit., § 14, marginal number 54. An individual (quivis ex populo) may not make himself the advocate of the common good, as to this intent of the statute see BVerwG E 17, 87.

Therefore, the plaintiff must assert a violation of his/her/its own rights (see numbers 3.2.1 and 3.2.2.).

3.2.1 Assertion of violation of a right

Assertion of a possible violation is an issue of admissibility of the action. Whether the alleged violation was actually a violation of the plaintiff’s rights must be checked by the court (well-foundedness of the action).

Therefore, the requirements as to the assertion of violation of a right may not be too high, as this would make their checking at the admissibility level more difficult, cf. Schenke, loc. cit., marginal number 494. In order to establish the right of action, the simple possibility of a right being violated is sufficient, cf. Federal Administrative Court 18, 157; BVerwG 44, 3; BVerwG NVwZ 1990, 262, Hufen, loc. cit., § 14, marginal number 108 (so-called possibility theory).

For the addressee of an administrative act ordering him/her/it to act or refrain from acting in a certain manner, or to suffer other actions, the possibility of a violation of his/her/its rights is objectively given, cf. Kopp/Schenke, loc. cit., § 42, marginal number 69, the so-called addressee theory. The opposite would only apply if the plaintiff is obviously and clearly not entitled or cannot be entitled to the alleged rights, cf. Schenke, loc. cit., marginal number 494.

Therefore, pursuant to the addressee theory, the possibility of violation of a right need not be checked any further. In all other cases, the alleged violation of rights must be evidenced in detail.

3.2.2 Violation of the plaintiff’s own rights

The right of action pursuant to § 42 para. 2 VwGO requires furthermore that the plaintiff’s own rights have been violated.

The plaintiff himself must be entitled to such individual right which can be any individual interest recognized as worth being protected by the legal order, cf. Kopp/Schenke, loc. cit., § 42, marginal number 78, with further references.

In this respect, the so-called protecting rule theory aims at checking whether the rule also protects the plaintiff’s specific interests, cf. Kopp/Schenke, loc. cit., § 42, marginal number 83. When checking whether a rule of law also aims at protecting individual interests or not, the construction of such rule must take the entire legal order and legal methods into account. However, the central criterion is always the group of persons whom the rule in question aims to protect, cf. Kopp/Schenke, loc. cit., § 42, marginal number 84.

The violation of a right does not depend on the legal basis of the right: simple law, constitutional rights or community law.

A simple legal classification can be made, for instance, for neighbour-protecting norms in construction law or norms concerning protection against emissions.

If constitutional rights are affected, the legal basis of actions is often the property guarantee pursuant to Article 14 of German Constitutional Law (GG). The legal basis of actions may also be communal self-government guaranteed under Constitutional Law (Art. 28 para. 2 GG) in particular concerning the sovereignty of the local community in planning matters, cf. Kopp/Schenke, loc. cit., § 42, marginal number 438.

The right of action may also be based on European Community Law. Several regulations and directives of the EU are binding for all government agencies and courts as directly applicable law. In the case of the directives, however, this only applies if these norms are „compulsory in their content and sufficiently precise“, cf. Hufen, § 14, marginal number 80.

III     Conclusion

The concept of locus standi in German law can best be translated with „access to courts“, as the issue is admissibility of an action. The requirements may vary in each specific case. In particular, the plaintiff must have an individual right of action in order to exclude collective or popular actions. However, requirements concerning such individual right may not be set too high. Every citizen must have the right to challenge any sovereign act affecting his rights.

About the author:

RA Pfab ist seit 2002 Rechtsanwalt.
Als Fachanwalt für Familienrecht berät er vor allem zu Unterhalt und Vermögensauseinandersetzungen und Scheidungen.
Mit dem Fachanwaltskurs für Erbrecht ist er für Beratungen zum Erben gerüstet: vor einem Erbfall bei Gestaltungen (Testament) und nach einem Erbfall bei der sinnvollen Regelung des Nachlasses.