General Principles of German and European Administrative Law – A Comparison in Historical Perspective
| Author | Georg Nolte |
| Published date | 01 March 1994 |
| Date | 01 March 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01932.x |
General Principles
of
German and European
Administrative Law
-
A Comparison in Historical
Perspective
Georg
Nolte”
Introduction
From the perspective of English jurists, the incoming tide of Community law still
carries some suspicious pieces of flotsam onto the shores of the English legal
system. It may be that the origin
of
certain general principles
of
Community law
has contributed to that suspicion. The principles of proportionality’ and of the
protection of legitimate expectations,2 for instance, have a reputation
of
being
‘made in Germany.’ Their claim to acceptance in English administrative law is met
with
reservation^.^
English lawyers may in fact think that European
administrative law is the Trojan horse by which a continental tradition is about to
supersede well-established English principles
of
administrative law and judicial
review. They may also legitimately ask themselves whether their system is not
particularly susceptible to change, since the Common Law tradition is the
exception rather than the rule in the European context.
German administrative law has acquired the reputation of being influential in the
shaping
of
the general principles of European administrative law4 as they are
being developed by the European Court
of
Justice and also, to a certain extent, by
the European Commission and Court of Human Rights.s Such a proposition,
however, is difficult to prove or to disprove since it is frequently impossible to
trace the origins of rules directly.6 In one or other form, other national systems of
administrative law also know the concepts and principles which are at issue here. It
is quite obvious, however, that these principles have acquired a particular
significance and an extraordinary legal force in Germany.
For these reasons, this article adopts an indirect approach. In Part One, some
important principles of European administrative law are analysed in order to
determine whether they have an equivalent in German administrative law. The
relevant differences between these two systems and the system of English
administrative law are also examined. Part Two attempts to explain why some of
*Dr iur, Fellow, Max-Planck-Institute for Comparative Public Law and International Law, Heidelberg.
I
wish to thank Michael Byers for his kind assistance with some English language aspects of this article.
1
Jowell and Lester, ‘Proportionality: Neither Novel Nor Dangerous’ (1988) 41 CLP 52.
2 Forsyth, ‘The Provenance and Protection of Legitimate Expectations’ (1988) 47 CW 238, 242-244.
3
See in particular
Brind
v
Secretary
of
Srare
for
the Home Department
[1991]
1
All
ER 720.
4 See Schwarze,
European Administrative
Law
(London: Sweet
&
Maxwell, 1992)
64-66
as to the
terminology; Mogele, ‘Deutsches und Europaisches Verwaltungsrecht
-
Wechselseitige
Einwirkungen’ (1993) 93
Bayerische Verwaltungsbfdtter
559. The present article does not deal with
those trends in European administrative law which derive from secondary legislation; see Schwarze,
‘Developing Principles
of
European Administrative Law’ (1993)
Public
Law
229, 234-237 and
Engel, ‘Die Einwirkung des Europaischen Gemeinschaftsrechts auf das deutsche Verwaltungsrecht’
(1992) 25
Die Verwalrung
437.
5
Schmidt-Assmann, ‘Deutsches und Europaisches Verwaltungsrecht
-
Wechselseitige Einwirkungen’
(1993)
108
Deutsches Verwaltungsbfan
(DVBI) 924, 925-927; Schwarze, ‘Der Beitrag des
Europarates zur Entwicklung von Rechtsschutz und Verfahrensgarantien im Verwaltungsrecht’ (1993)
20
Europdische Grundrechrezeitunx
377.
6
Schmidt-Assmann,
ibid
928.
191
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these general principles have an equivalent in German law, and why others do not.
For this purpose, it is helpful to sketch the historical development of German
administrative law and
in
particular to describe the legal principle of
‘Rechtsstaat.’7
In Part Three, the perspective is reversed. Here, German law is
no longer regarded as a potential source of European administrative law but as its
object of transformation. This joint comparative and historical perspective leads to
the conclusion that it is not so much the technical or systemic merits of German
administrative law which make it attractive as a source of inspiration for European
administrative law, but the extent
to
which it has incorporated certain principles of
constitutional law.
A
The Reflection
of
German Principles in Community
Law
For a German lawyer, the general principles of European administrative law, as
they have been developed mainly by the European Court of Justice, present an
ambiguous picture. Some of them seem very familiar, others are quite different
from the principles of the national law.
(a) Familiar
Concepts
There are three major principles of European administrative law which have
similar counterparts in Germany: the principle of proportionality; the principle of
equality; and the protection of legitimate expectations. Let us consider each of the
principles
in
turn.
The
Principle
of
Proportionality
This principle is a general principle both of Community and of European Human
Rights law.8 With respect to the administrative law of the Community, the Court
of Justice has developed the principle particularly in cases concerning penalties for
non-compliance with systems of import and export licences. In these cases, the
Court accepted that it is permissible to sanction the failure to comply with a
‘principal obligation’ of a scheme with the loss of the whole security, but
considered it ‘excessively severe’ to impose the same penalty in the case of a
violation of only a ‘secondary ~bligation.’~ This means, for example, that the
Commission may enact a rule according to which the security is forfeited if the
agreed export has not taken place within the prescribed time period, but that it
cannot prescribe the same penalty for the mere omission to furnish, in a timely
fashion, the required proofs that the export has actually taken place.’0
Similarly, in Germany, the
Bundesverfassungsgericht
(Federal Constitutional
Court) held that the principle of proportionality was violated by a rule according to
which an unemployed person forfeited his claim to unemployment benefits for a
period of two weeks if he failed to notify the employment office of his current
7 Any direct translation of this concept would be misleading.
8 Hartley,
The
Foundations
ofEuropeun
Community
Low
(Oxford: Clarendon, 2nd
ed,
1988) 145- 147;
Frowein and Peukert,
Europdische
Menschenrechrskonvenrion
-
EMRK-Kommenrur
(Kehl: Engel,
1985) 193; Schwarze,
op
cir
n
4,
708-726. As
to
the principle of proportionality in general
international law, see Delbriick. ‘Proportionality’ in Bernhardt
(ed),
Encyclopedia
of
Public
fnrernurionul
Law,
Instalment 7 (Amsterdam:
North
Holland, 1984) 396-
400.
9
Case 21/85,
Maas
v
BALM
[I9861
ECR
3537, 3556 with further references.
10
Case 122/78,
Euironi
v
FORM
119791
ECR
677, 685.
192
0
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