Acceso usuarios
Christoph Brüning
The German Basic Law constitutes a state characterized by a division and separation as well as a mutual interaction of state powers. Consequently it is appropriate to examine the relationship between the administration and judicial review by courts from a functional perspective. Since the executive and the judicial branch of the state are both obliged to observe “statutory law and justice” (art. 20 (3) of the Grundgesetz) the authority of statutory law is of paramount importance for both. In asserting the independent significance of the administrative courts in relation to the administration, the most appropriate method is to set out clearly the interaction of the application of, first, the law, second, the administrative procedure and, third, the principles of judicial review. In all of this it is important to eschew any notion that the application of a statute can only result in one correct administrative decision. Similarly, one must avoid the idea that the same decision can be retrospectively reproduced if the application of the statute implies balancing decisions rather than the standard procedure of simply applying a law to the facts. This also results in an alteration of the method of assessment of the efficacy of judicial review. Divergence from the appropriate mode of applying the law and reviewing this application require to be justified by a statute and are constrained by the way in which the constitution allocates functions and powers. The functions and powers of the administration and the legislator are complementary. The very fact that the administration is empowered to create laws carries with it a concomitant responsibility to comply with proper procedure. The significance of this should not be underestimated because of the impact that procedural arrangements may have on the outcome. Accordingly, with respect to the relationship of administration and the administrative courts, that means that judicial review has to focus on procedural aspects of the administrative decision, where the procedure of coming to a decision is either explicitly or tacitly shaped by the legislator in a specific manner or where the procedure is atypical. The specific shape of the administrative procedure itself has a bearing on specific aspects of the judicial review. Further elements influencing the relevant methods of assessment of making and reviewing a decision are the statutory requirements for the content of the decision as well as the composition of the decision making body.
