Abstract
In considering the nature of judicial remedies in German law a common lawyer has to bear in mind some basic aspects of that law which are at variance with the common law. While for a common lawyer judicial remedy means remedy in the ordinary courts the German law assigns administrative matters to the administrative courts.1 Judicial remedy here means remedy in the administrative courts and not in the ordinary courts which except in few specified matters have no jurisdiction in administrative matters. Second, although common law does not exclude administrative matters from the jurisdiction of the ordinary courts, it fully recognizes the need for specialist tribunals to deal with such matters. The German law recognizes no administrative tribunals apart from the administrative courts. Therefore, a person can approach the courts directly except where the law requires exhaustion of the administrative remedy in the limited sense, to be mentioned below, before coming to the administrative courts. Thus, except when an appeal in the court is provided against a decision of an administrative tribunal the judicial remedy in common law is of supervisory nature while the remedy provided in the German administrative courts is the primary remedy.
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References
See above, p.104ff.
This distinction between the private and public law remedies in administrative matters has been abondoned in the federal courts in the United States where now only private law remedies of injunction and declaration are sought against the administrative excesses.
See the Specific Relief Act 1963, ss 34–41.
Rules of the Supreme Court (Amendment No 3)1977, S I No 1955 (L 30) which came into force on Jan 11, 1978. Now enacted in the Supreme Court Act 1981.
Decision of 25 May 1962, 14 BVerwGE 202.
Decision of 7 Oct 1955, 2 BVerwGE 229.
Tschira O, Glaeser WS: Verwaltungsprozessrecht,216 (3d ed, 1977). See also decision of 20 July 1962, 14 BVerwGE 323.
Decision of 10 Feb 1960 BVerwG [1960] DVBI 437.
Ule CH: Verwaltungsprozessrecht,165 (7th ed, 1978); Tschira, Glaeser, above, n 7 at 46ff.
Ule, id,at 167. Also decision of 28 June 1963, 16 BVerwGE 187.
Decision of 7 Oct 1955, 2 BVerwGE 229, 231.
Compare, decision of 5 March 1968, 29 BVerwGE 166, 171.
For an opposition to the introduction of such laws see Schmidt-Assmann E: Verwaltungsverantwortung und Verwaltungsgerichtsbarkeit,34 WDStRL 222, 272 (1976).
van Dijk P: Judicial Review of Governmental Action and the Requirement of an Interest to Sue,194 (1980).
de Smith SA: Judicial Review of Administrative Action,409 (4th ed, 1980 by Evans JM). For a similar statement on German law see Ule, above, n 9 at 165.
van Dijk, above, n 14 at 72.
de Smith, above, n 15 at 416, 418.
See, for example, R v Liverpool Corporation, exp. Liverpool Taxi Fleet Operator’s Association [197212 QB 299 and R v GLC, exp Blackburn [1976] 1 WLR 550.
RSC, Ord 53, r 3 (5) cited in de Smith SA, above, n 14 at 415.
JM Desai v Roshan Kumar,AIR 1976 SC 578. Among such factors the court mentioned the content and intent of the statute of which contrvention is alleged, the specific circumstances of the case, the nature and extent of petitioner’s interest, and the nature and extent of the prejudice or injustice suffered by him.
Vardarajan v Salem Municipality,AIR 1973 Rom 55.
Diva Karan v Director Dy, Fishries,AIR 1975 Ker 9; Warangal Chamber of Commerce v Director of Marketing,AIR 1975 AP 245. For more cases and details see Jain MP, Jain SN: Principles of Administrative Law,399ff (3d ed, 1979).
SP Gupta and Others v Union of India&Others,AIR 1982 SC 149 at 194. Also National Textile Worker’s Union v PR Ramakrishnan,AIR 1983 SC 75.
Association of Data Processing Service Organizations v. Camp,397 US 150,154 (1970).
van Dijk, above, n 14 at 197.
Ibid. This is different in France also where the authorities may be asked to observe the law although no one’s rights are specifically infringed. See Crossland HG: Rights of the Individual to Challenge Administrative Action before Administrative Courts in France and Germany, 24 Int’l&Comp L Q 707, 730 (1975).
See Veerappa v Raman,AIR 1952 SC 192 and CA Abraham v ITO,AIR 1961 SC 609.
See State of UPv Md Nooh,AIR 1958 SC 86.
Pendency of a matter in a constitutional court does not affect the institution of a suit in an administrative court; see decision of 5 Feb 1976, 50 BVerwGE 124, 129.
This provision has been made permanent in the draft Law on Procedure in Administrative Courts, s 113.
Ule CH: 25 Jahre Bundesverwaltungsgericht,[1978] DVB1 553 at 561.
Decision of 28 June 1978 - Fall König - [1978] EuGRZ, 406.
Papier H-J: Die Stellung der Verwaltungsgerichtsbarkeit im demokratischen Rechtsstaat,9ff (1979); Sendler H: Zum Instanzenzug in der Verwaltungsgerichtsbarkeit,[1982] DVB1 157.
No specific figures with respect to administrative matters are available, but other matters on an average take more than ten years till the high court stage and if the matter also goes to the Supreme Court another five years or more may be added. For some rough figures see Lodha GM, Wanted Evolution or Revolution in Judiciary?, AIR 1982 (J) 17 ff. Also Dhavan R: The Supreme Court under Strain: The Challenge of Arrears (1978).
Art 104 (1). This right is considered to be as good as a fundamental right.
Decision of 9 Oct 1973, 36 BVerfGE 85, 87.
Decision of 25 Jan 1974, 44 BVerwGE 307&of 4 Nov 1976, 51 BVerwGE 277.
Above, p 112.
For the position in England and India see Conway v Rimmer[1968] AC 910; Amar Chand Butai! NI Union of India,AIR 1964 SC 1658; State of UPv Raj Narain,AIR 1975 SC 865; SP Gupta and Others v Union of India and Others,AIR 1982 SC 149.
The five kinds of decisions are: judgments (Urteile),orders (Beschlüsse),preliminary rulings (Vorbescheide),court rulings (Gerichtsbescheide),and directions (Anordnungen or Verfügungen). The first four are given by the court or division while the last one are given by the presiding judge. Generally speaking a judgment normally disposes of the disputes finally while an order is given during the course of proceedings. A preliminary ruling is given on the admissibility of a suit and a court ruling is given unanimously to decide whether an oral hearing is required. Directions are generally given by the presiding judge during the course of oral proceedings.
See Appendix IV.
Under the Law for the Uniformity of Judicial Decisions of 1968 a revision can be filed if the challenged judgment differs from a judgment of any of the five federal courts.
VwGO, s 137. According to s 138 a federal law is always violated if either the court was not properly constituted, or a judge who was excluded by law or was biased has participated, or a legal hearing was denied to a party, or a party was not represented according to the provisions of law or if the oral proceedings were not held in open, or the judgment is not furnished with grounds or reasons. Further, it has been suggested that the limitation of s 137 does not prevent the Federal Administrative Court from deciding cases arising under state laws so long as any federal issue is involved. See Pakuscher EK: Administrative Law in Germany - Citizen v. State, 16 Am J Comp L 309, 329 (1968–69).
VwGO, s 80.
Decisions of 2 Sept 1963, 16 BVerwGE 289 and of 29 Oct 1963,17 BVerwGE 83.
Id,decision of 2 Sept 1963.
VwGO, s 153.
Id,s 167.
Id, s 172. It is instructive for the Indian lawyers and law-makers where some times even the Supreme Court orders are not implemented for as many as twelve years. See Devaki Nandan Prasad v State of Bihar, AIR 1983 SC 1134.
See Ule, above, n 31; Sendler, above, n 33, and the statement of reasons on the individual clauses of the draft of the Law on Procedure in Administrative Courts (Verwaltungsprozessordnung) of 19 March 1982 at 61 (Now BR-Dr 148/83).
Entwurf einer Verwaltungsprozessordnung of 19 March 1982 ss 4 and 113 (Now BR-Dr 148/83).
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Singh, M.P. (1985). Judicial Remedies and Procedure. In: German Administrative Law. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-662-02457-7_8
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