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The Administrative Procedure in Germany |
The administrative procedure starts with the authorities’ decision to take action regarding specific facts (Art. 22 VwVfG).
One distinguishes between facts upon which the authorities are obliged to initiate the procedure ex officio, and facts which require a request (Antragsverfahren). Practically all procedures aimed at obtaining a license – such as requests for the licensing of conveying and operating sporting bets – are administrative procedures provided upon request.
The request (Antrag) has to be filed with the competent authority. In the case of the request for conveying and operating sporting bets this is the ministry of the interior of the respective state as the supreme state authority.
Although the mandatory content or specific grounds for the request are not required by law, they nonetheless constitute the core of the administrative procedure: The more thoroughly and well founded a request, the higher the chances are that the authorities will thus be influenced in their decision.
Especially in the case of a request for conveying or operating sporting-bets, it is crucial to file a persuasive and legally well founded request, since in the area of sporting bets, a legal basis in enacted law does not exist yet. The right to a license for conveying and operating sporting bets is therefore rather based on the constitutional right to exercise ones profession resulting in the right to participate in the German gambling market (Art. 12 I GG), as well as the freedom to provide services and the freedom of establishment granted by Art. 49 and Art. 43, 48 of the Treaty on the European Community respectively.
After receiving the request, the authorities are reviewing the facts (Art. 24 VwVfG). This means that all significant facts and circumstances necessary in order to finish the administrative procedure (e.g. by issuing an administrative act) will be established.
The applicant and respectively his lawyer has to be heard (Art. 28 VwVfG). Thus the applicant is given the opportunity to influence the authority´s decision.
After the closing of the fact establishing process, the competent authority issues an administrative act. This constitutes an act of state. Thus the authority decides for the first time, whether they will grant the request or not.
The administrative act is announced in the form of an official notification, normally by letter. The notification must include an instruction on the right to appeal (Rechtsbehelfsbelehrung).
In the case the the authorities do not react at all, the applicant may file an action on the grounds of administrative inactivity (Art. 75 VwVfG).
C. The Protest Proceedings (Widerspruchsverfahren)
As soon as the decision is announced to the applicant (e.g. to the applicant for the license for conveying and operating sporting bets) the time limit for filing protest begins.
Protest is regularly being filed in the case that the applicant does not approve of the decision. Therefore, in case the applicant disapproves of the authorities’ decision, he may file protest within one month after receiving notification.
Thus the protest proceedings are pre-trial proceedings (obligatory before filing suit).
The protest proceedings give the opportunity to the issuing authoritiy to review its decision. In the case that it concludes the protest was justified, it will alter the decision in favor of the applicant (Abhilfe).
Should the issuing authority decide to remain with its original decision, that is, in the case that it regards its decision as lawful, it submits the case to the protest authority (Widerspruchsbehörde) – in general the next higher administration level. If the issuing authority is already a state ministry (relevant for the licensing of sportbooks), the ministry is also the protest authority.
Should the protest authority not react, the objecting party may again file an action on the grounds of administrative inactivity (Unterlassungklage).
Should the protest authority assert the legality of the administrative act, it notifies the objecting party by protest notification (Widerspruchsbescheid).
D. The Administrative Action (Klage vor dem Verwaltungsgericht)
Once the protest has been declared without cause, the objecting party may file a lawsuit within a time period of one month. The suit is to brought against the ministry of interior affairs of the state, and respectively against the state.
However, in case a immediate decision is needed effective judicial relief cannot be obtained by filing suit alone.
Normally an administrative act does not take legal effect until the final decision of the courts (Rechtskraft), so that the receiver is not subject to disadvantages. In special cases the authority may order the immediate execution of the administrative act (Anordnung der sofortigen Vollziehbarkeit), giving it legal effect immediately.
In such a case the applicant has the possibility to file for the administrative act’s restoration depriving it of its immediate legal effect (Antrag auf Wiederherstellung der aufschiebenden Wirkung). This can be done by way of filing for a preliminary injunction (einstweiliger Rechtsschutz). A final decision is not reached this way, but at least the applicant can avoid disadvantages caused by the authority attributing immediate legal effect to the administrative act.
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