The Appeal Procedure Under the Administrative Court Rules
The appeal proceedings under the Administrative Court Rules (VwGO) allow for an internal administrative review of the original decision. The following remarks apply only to the appeal proceedings as defined by the VwGO. They do not concern legal remedies governed by other laws, such as the appeal proceedings under the Social Court Act as a preliminary proceeding to an action before the Social Court.
Limited Scope of Application in Bavaria
Pursuant to Article 12 of the Act on the Implementation of the Administrative Court Code (AGVwGO), the appeal proceedings against decisions of the authorities of the Free State of Bavaria, Bavarian municipalities, counties, districts, and other legal entities under public law subject to the supervision of the Free State of Bavaria (Art. 12(3), sentence 1, AGVwGO) have been abolished in many areas.
In some areas of law (see Art. 12(1), sentence 1, nos. 1 through 6 AGVwGO), however, there is an optional appeal procedure that allows a choice between filing an appeal and bringing a direct action. Within the scope of application of Art. 12 AGVwGO, an objection procedure now exists only in the following areas:
- in the area of local tax law
- in the field of agricultural law, including the law governing agricultural subsidies, as well as in the field of forestry subsidies and hunting quota procedures,
- in the area of school law, including the law governing school financing and student transportation,
- in the areas of vocational training and student financial aid law, residential care law, child and youth welfare law, child, youth, and family support, war victims’ welfare law, law concerning persons with severe disabilities, advance maintenance payments law, housing allowance law, broadcasting license fee law, and funding under the European Social Fund (ESF funding), to the extent that administrative remedies are available in each case,
- in matters concerning civil servants, with the exception of disciplinary law,
- in decisions regarding individual examination results.
Note: To the extent that other laws and regulations (under federal or state law) contain provisions regarding preliminary proceedings that deviate from Art. 12 AGVwGO (e.g., § 141(1) of the Land Consolidation Act; §§ 336–338 of the Burden-Sharing Act; § 6(1) of the Ordinance on Land Readjustment Committees and Preliminary Proceedings in Land Readjustment Matters), these provisions take precedence as special provisions (Art. 12(3), second sentence, AGVwGO).
Article 12 of the AGVwGO doesnot apply to administrative acts issued by federal authorities (e.g., the Federal Office for Migration and Refugees), even if they have their headquarters or a branch office in Bavaria.
Filing an Objection; Form and Competent Authority
The appeal must be filed in writing, by means of a recorded submission (subject to a fee), electronically, or in a form approved as a substitute for the written form with the issuing authority (the authority that issued the decision being challenged, e.g., the district office or an independent city). In addition, the appeal may also be filed with the appeals authority. An appeal filed via a hand-signed fax or via a computer fax with a scanned signature satisfies the written form requirement. An oral or telephone appeal is not admissible. Provided that the recipient has established an appropriate channel for receiving electronic documents, an appeal may also be filed electronically or in a form approved as a substitute for the written form. Pursuant to § 70, sentence 1, VwGO in conjunction with § 3a, paras. 2 and 3, VwVfG, an appeal may be filed via the following electronic channels or by means approved as substitutes for the written form:
- Submission of a document with a qualified electronic signature,
- direct submission of the declaration via an electronic form, provided that the authority makes such a form available through an input device or via publicly accessible networks (in the latter case, only when using electronic proof of identity pursuant to Section 18 of the Identity Card Act, § 12 of the eID Card Act, or pursuant to § 78(5) of the Residence Act or § 9a(5) of the Online Access Act)
- Submission of a declaration electronically signed by the declarant to the authority
- from one of the mailboxes specified in § 3a(3)(2a) through (c) of the Administrative Procedure Act (VwVfG) or
- using the method of transmission specified in Section 5(5) of the De-Mail Act.
- For government agencies:
- by sending an electronic document bearing the authority’s qualified electronic seal, or
- by sending a De-Mail message in accordance with § 5(5) of the De-Mail Act, in which the confirmation from the accredited service provider identifies the authority as the user of the De-Mail account.
However, it is not possible to file a legally valid objection via (plain) email.
The objection should be sufficiently substantiated. Only if the authority knows why you disagree with the contested decision can it conduct a comprehensive review.
The Remedial Proceedings
The remedial proceedings (§ 72 VwGO) are part of the appeal process. They are conducted by the original issuing authority, which is thus given the opportunity to comprehensively review the decision it made once again. Only then is the matter referred to the appeals authority.
Must a contested decision be complied with despite an appeal? — Suspensive Effect
Pursuant to § 80(1) VwGO, an appeal generally has suspensive effect, meaning that the contested administrative act does not initially have to be complied with. However, this principle has been restricted by a number of statutory provisions. For example, pursuant to § 80(2), first sentence, VwGO, the suspensive effect is automatically waived by law in cases such as the collection of public levies (such as contributions and fees) and costs, and, above all, in other cases prescribed by various laws. Furthermore, the appeal has no suspensive effect if the authority specifically orders immediate enforcement (Section 80(2), first sentence, No. 4 of the VwGO).
Administrative acts usually include a note regarding the suspensive effect of the objection, provided that such an effect is possible.