Special Administrative Tribunals
| Author | Otto Bachof |
| DOI | 10.1177/002085235902500209 |
| Date | 01 June 1959 |
| Published date | 01 June 1959 |
| Subject Matter | Articles |
Special
Administrative
Tribunals
by
Otto
BACHOF
(*),
Professor
in
the
University
of
Tübingen.
UDC :
351.95 :
(35.083.122.1
+
336
+
304)
(43)
Similarly
to
the
general
administrative
ju-
risdiction,
the
special
administrative
tribun-
als
of
the
Federal
Republic
of
Germany
may
be
traced
back
to
earlier
origins.
The
intrinsic
difference
between
the
newer
and
the
former
institutions
lies
in
that,
from
the
point
of
view
of
their
organisation
and
competence,
the
gen-
eral
and
the
special
administrative
tribunals
no
longer
belong
to
the
administration
but
to
the
judiciary.
This
was
provided
by
Article
19,
paragraph
4,
of
the
Basic
Law
of
the
Fe-
deral
Republic,
according
to
which
any
person
whose
rights
are
infringed
by
a
public
author-
ity
may
institute
legal
proceedings.
As
may
be
deduced
from
Article
92
of
the
Basic
Law,
proceedings
in
a
genuine
law
court
which
is
personally
and
materially
independent
are
alone
regarded
as
legal
proceedings
within
the
meaning
of
the
Law.
Therefore,
the
special
administrative
tribunals
will
only
serve
the
purposes
intended
by
the
legislator
if
they
sa-
tisfy
these
requirements.
Another
possibility
of
instituting
legal
proceedings
in
a
genuine
law
court
against
decisions
taken
by
such
an
institution
would
otherwise
have
to
be
pro-
vided
according
to
the
mandatory
rule
of
Ar-
ticle
19,
paragraph
4,
of
the
Basic
Law.
This
indispensable
and
constitutionally
instituted
link
between
« administrative
jurisdiction
»
and
ordinary
jurisdiction
also
determines
the
character
of
the
special
administrative
tribun-
als
of
the
Federal
Republic.
The
judicial
qua-
lity
of
institutions
such
as
the
German
Patent
Office,
which
were
formerly
recognized
as
spe-
cial
administrative
trib.unals,
is
accordingly
disputable
under
the
Basic
Law.
Thus,
for
instance,
the
Bavarian
Administrative
Court
denied
the
Patent
Office
the
quality
of
a
spe-
cial
administrative
tribunal
in
a
decision
of
25
July
1958
(NJW
(1)
1958,
page
1458
and
ff.).
The
foreign
student
will
have
to
consider
the
present
situation
in
Germany
differing
(*)
Who
is
indebted
to
his
research
assistant.
Dr.
Hans
Heinrich
Rupp,
for
valuable
co-operation.
from
the
previous
one
if
he
wants
to
follow
the
discussion
about
the
general
and
special
administrative
tribunals
with
special
reference
to
the
constitutional
aspect
of
the
strict
sepa-
ration
of
the
administration
and
the
judiciary.
The
present
contribution
will,
therefore,
only
deal
with
special
administrative
tribunals
vested
with
genuine
judicial
powers
because
their
organisation
and
procedure
satisfies
the
constitutional
requirements.
Section
IX
of
the
Basic
Law
mentions
the
following
organs
of
special
administrative
jurisdiction :
higher
fe-
deral
fiscal
and
social
courts,
and
federal
courts
for
disciplinary
proceedings
against
fe-
deral
officials,
federal
judges
and
members
of
the
Federal
Defence
Force
(Article
96,
para-
graphs
I
and
3
GG
~2 ~ ).
Apart
from
these
federal
institutions,
special
administrative
tribunals
have
been
set
up
by
the
individual
L~nder.
With
regard
to
the
disciplinary
ju-
risdiction
for
officials
and
judges,
complete
separation
of
competence
has
been
effected
between
the
Federation
and
the
Laender.
In
the
field
of
social
and
fiscal
jurisdiction,
the
federal
courts
and
the
courts
of
the
Laender
are
interrelated
by
a
right
of
appeal
similar
to
the
situation
with
regard
to
the
general
ad-
ministrative
tribunals,.
This
point
will
be
de-
veloped
further
on.
Apart
from
fiscal,
disciplinary,
and
social
tribunals,
other
important
institutions,
re-
cognized
as
special
administrative
tribunals,
have
been
set
up
by
the
L~nder.
These
will
be
briefly
referred
to
at
the
end
of
this
article.
I.
Disciplinary
jurisdiction
or
-
a
term
even
more
commonly
used
in
Germany -
disciplin-
ary
penal
jurisdiction
deals
in
the
first
place
with
offences
against
the
regulations
govern-
ing
the
services
of
officials,
judges,
and
mem-
(1)
NJW,
« Neue
Juristische
Wochenschrift
».
(2) GG.
Grundgesetz.
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