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Stephan Meder
nforcement action doctrine has been plagued by considerable controversy from the very beginning. In particular, the term “rejection of the administrative act” in Section 113 Paragraph 5 First Sentence VwGO is deemed incompatible with enforcement action‘s purpose, for the administrative authority’s decision to reject the desired act is not the very matter under judicial review. Rather, the court is required to only determine whether the nonexistence of the desired act is unlawful (and whether plaintiff has a right to the act) - irrespective of any express rejection by an administrative authority. Section 114 First Sentence VwGO precipitates further unease. While allegedly devised to curtail courts’ authority to review exercise of discretion, its wording suggests quite the opposite (“also reviews…” instead of “only reviews…”).
However, legislator’s choice of words should be taken at face value to the extent possible. The article therefore explores a textual interpretation that seeks to better reconcile statutory wording and doctrine.
While the term “rejection” signifies that the continued nonexistence of the desired administrative act has been individuated thru the administrative authority’s decision, the term does nevertheless refer to the continued nonexistence itself, and not to the authority’s rejection of the act. In order to apply this finding to cases where the desired administrative act is at the authority’s discretion, the reason for the unlawfulness of the “rejection” requires specification. Before issuing the administrative act with which the act desired by the claimant is rejected, the authority needs to devise an individual rule on how to exercise discretion in the case at hand. If this individual rule does not conform to the purposes of the statutory provision that grants discretion, then it is void.
The wording of Section 114 First Sentence VwGO (“also reviews…”) clarifies that the court’s authority extends to reviewing validity of the individual rule.
