Policy Rules in German Law
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
| DOI | 10.1177/1023263X9400100304 |
| Author | A.J. Bok |
| Subject Matter | Article |
A.I,
Bok*
Policy Rules in German Law
§1. Introduction
This contribution deals with the doctrine and case law in Germany on policy rules, or,
to use the German terminology:
Verwaltungsvorschriften.
I 2 First, the administrative
rules which are considered
Verwaltungsvorschriften
will be listed (§ 2). An investigation
follows into the questions: what binding force do
Verwaltungsvorschriften
have, on what
is this binding force based, and what is the difference between
Verwaltungsvorschriften
and statutory instruments
(Rechtsnormen,
in German) in these respects? (§ 3). To
conclude, some comparative remarks are made contrasting
Verwaltungsvorschriften
in
German law with policy rules under Dutch law (at present and in the future under the
third stage
of
the Dutch General Administrative Law Act) (§ 4),
§2, Types
of
Verwaltungsvorschriften
As elsewhere, policy rules in Germany were first developed within the administration
itselfand were initially only
of
significance within the administration, Later doctrine and
case law transformed policy rules into a legal phenomenon and assigned to them a
binding force outside
of
the administration. .
*
1.
2.
AJ.
Bok,
LL.M.,
Dr. Iur., is a former legal assistant at the Staff Division General Legislative Policy
of the Dutch Ministry of Justice and is now a lecturer in Constitutional and Administrative Law at the
University of Utrecht, (NL). The author thanks Prof.
J.II.
van Kreveld for his remarks on the draft
of this article.
This is the commun term in German literature and jurisprudence. In administrative practice the terms:
Richtlinien,
Erlasse,
Rundverfiigungen
or
{innerdienstliche)
weisungen are also used. Cf. Maurer,
Allgemeines
Yerwaltungsrecht,
8th edition, (Beck.
1992),545.
General literature on
Verwaltungsvorschriften
is 10 be found in Maurer, ibid, 545-568, F. Ossenbiihl,
'Autonome Rechtsetzung
der
Verwaltung", in J. Isensee and P. Kirchhuf (eds), lIandbuch des
Staatsrechts der Bundesrepublik Deutschland. Band III, (C.F. Muller Juristische Verlag, 1988), in
particular 425-461 (Ossenbiihl1988) and F. Ossenbiihl, 'Die Quellen des Verwaltungsrechts', in II.U.
Erichsen en W. Martens (eds),
Allgemeines
Yerwaltungsrecht,
9th edition, (De Gruyter, 1992), in
particular 129-142 (Ossenbuhl 1992).
MJ 1 (1994) 255
IPolicy Rules in German Law
Inthe German administration policy rules are primarily meant to bring uniformity and
consistency to the action of the administration. This is because uniform and clear
statutory rules are often absent. In some cases administrative decisions are not bound
at all by statutory provisions. Where there is a statutory provision, this must often be
interpreted in a concrete situation, or alternatively the provision only confers a
discretionary power on the administration (on the difference between these see below).
Inall these cases it is not clear in advance which decision has to be made.
To prevent individual civil servants constantly having to decide which decision to take,
one often sees administrative bodies laying down the policy to be followed in policy
rules (Verwaitungsvorschriften).
Verwaltungsvorschriften
can prescribe which branch of
the administration has to take the decision and in what way
(Organisations-
und
Dienstvorschriften), can give an interpretation
of
a vague statutory provision
(norminterpretierende Yerwaltungsvorschriften) , can prescribe in which way a
discretionary power has to be exercised
(ermessenslenkende
Verwaltungsvorschriften)
and can, finally, give prescriptions when there is no statutory provision at all
(gesetzesvertretende Yerwaltungsvorschriften).
A. ORGANISATIONS- UND DIENS1YORSCHRIFTf-1V
These rules firstly establish the organizational scheme and the internal attribution of
powers within the branch of administration concerned: which sections and bureaus exist
within the organization, and which tasks are assigned to them? Apart from that, the
Organisations-
undDienstvorschriften give instructions on the internal procedures to be
followed. 3The
Organisations-
undDienstvorschriften for the ministries of the federal
government are partly brought together in the
Gemeinsame
Geschiiftsordnung
der
Ministerien. 4
B. NORMINTERPRETIERENDE VERWALTUNGSVORSCHRIFTEN
In Dutch literature policy rules are most often understood as rules which regulate a
discretionary power on the administration (the category of
'ermessenslenkende
Verwaltungsvorschriften', to be dealt with below). There are, however, also rules
established by the administration which provide an
interpretation
of a vague statutory
provision. S
3. Maurer, ibid, 548 and Ossenbuhl (1988) ibid, 433.
4. Ossenbiihl (1988) ibid, 434.
5. Cf. in Dutch law, J.H. van Kreveld, Beleidsregels in her recht, diss., (Kluwer, 1983), who
distinguishes between rules which give an interpretation of legal provisions and rules on the exercise
of discretionary powers, Chapter 7 and Chapters 4-6. Also the Report of the Polak Commission' Orde
in de regelgevlng", (Staatsuitgeverij, 1985), makes this distinction. finally, the distinction is also made
in
the:
Bill on a third
stage:
of the Dutch General Administrative: Law Act. More on this Bill in section
4.
256
MJ
1 (1994)
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