Comparative Law Spring 2002 Professor Susanna Fischer

1. Comparative Law Spring 2002Professor Susanna Fischer CLASS 33 FRENCH CRIMINAL PROCEDURE GERMAN ADMINISTRATIVE LAW & PROCEDURE April 8, 2002

2. The French Criminal Trial • How long is the trial? • The trial is often said to be more “adversarial” in nature than the investigation. Why is this?

3. The Trial • In general, what evidentiary rules apply? • Is there a presumption of innocence? • Is there a jury?

4. German Administrative Law • German administrative law has its basis in the basic principle of the Rechtsstaat- the exercise of state authority is subject to the law • See Art. 20(3) GG (executive bound by law and justice) • See also Art. 80 (parliament must consent to delegated legislation, limited power to delegate), 28(2) (limits of muncipal self-government), 30 (governmental powers reserved to Länder)

5. The Extent of Public Power • ADMINISTRATIVE LAW CONCERNS PUBLIC LAW AND PUBLIC POWER • German Administrative law requires that administrative decisions must be constitutional and empowered by a statute; if not, they are void • German administrative law generally governs the extent to which individuals can take legal action to nullify a decision made by the public administration that is not in conformity with law, or force public authorities to perform obligations

6. Judicial Review under German Law • Art. 19(4) of the GG provides for the right of judicial review – “[s]hould any person’s rights be violated by public authority, he may have access to the courts.” • The German system of administrative law is focused on enforcing individual rights, and not as much on the rulemaking process as the U.S. system. You should think about whether we should effectively narrow our system of administrative law and judicial review of administrative agencies to mirror the German system.

7. Judicial Review and Constitutional Courts • Remember that under German law there is also judicial review of the constitutionality of statutes, not just administrative acts. The constitutional court system reviews the constitutionality of statutes as well as the constitutionality of administrative acts. • Administrative courts have jurisdiction over public law disputes other than constitutional issues and other than matters assigned by statute to specialized courts – e.g. fiscal courts.

8. Exhaustion of Remedies • However, before a court can review an administrative decision, the applicant must exhaust the required administrative procedures (Vorverfahren or Widerspruchsverfahren) to try to resolve the problem

9. Protest Procedure: Widerspruchsverfahren • Describe the preliminary proceeding that must take place before an individual whose rights have been infringed and has the requisite capacity can sue a public authority in court to quash an administrative decision (in most cases – there are a few exceptions where the protest procedure is not required). • Administrative decision must be aimed at individual or specific group and must be binding. Administrative authority must have acted in exercise of its public duties and not under civil law (e.g. contract to purchase materials) • What are some examples of administrative decisions that would be subject to this procedure?

10. Protest Procedure: • The individual must file a protest with the public authority that issued the administrative decision (Ausgangsbehörde) usually within 1 month of the decision. Must meet certain form requirements. • Filing the protest will suspend the enforcement of the decision • The public authorty will then review the legality of its administrative decision • If it decides the protest is legally justified, then it will allow the protest and grant necessary costs. What if it rules against the protest?

11. Protest Procedure: Widerspruchsbehörde • If the Ausgangsbehörde rules against the protest, it refers it to the Widerspruchsbehörde (protest authority – usually the public higher authority of the next highest rank to the Ausgangsbehörde). The protest can be dismissed, or the administrative decision quashed. Must give reasons for decision.

12. Purposes of Protest Proceeding • Why does the system require this preliminary proceeding?

13. Purposes of Protest Proceeding • Why does the system require this preliminary proceeding? • Provide issuing authority with one more opportunity to review its decision internally • Keep courts from being clogged with public law disputes

14. Judicial Review in the Courts • Administrative actions are heard in administrative courts – all in judicial branch unlike French Conseil d’Etat • There is a 3 tier system of courts: • Verwaltungsgericht (Administrative Court – Land) • Oberverwaltungsgericht (Higher Administrative Court – Land) • Bundesverwaltungsgericht (Federal Adminstrative Court – Federal – now in Berlin, but will move to Leipzig.

15. Judicial Review in the Courts • Administrative courts hear most public law actions. Some cases are excluded from administrative courts by statute and must be heard in another court- e.g a Fiscal Court. • The initial question for administrative courts is whether a suit is a public law dispute. The line between public and private law is a hard one to draw in practice. Some case law has been developed that, though not legally binding as a matte of stare decisis, assists courts to know where to draw the line.

16. Different Types of Administrative Actions • Before filing, a plaintiff must decide what type of administrative claim s/he is making. • What are the different types of administrative actions?

17. Different Types of Administrative Actions • 1. Action to annul an administrative decision/quash an administrative act (Anfechtungsklage) (protest required) • 2. Action to compel a decision (Verpflichtungsklage) (protest required) • 3. Action for a declaration (of existence/non-existence of legal relationship) (Festungsklage) – (protest not required)

18. Different Types of Administrative Actions • 4. Action for performance (Leistungsklage) (protest not required) • 5. Judicial Review (Normankontrolle) – only constitutionality of delegated legislation

19. Administrative Procedure • Is the procedure in German administrative courts more adversarial or inquisitorial?

20. Administrative Procedure • Is the procedure in German administrative courts more adversarial or inquisitorial?

21. Administrative Procedure: Inquisitorial or Adversarial? • Principle of public trial and right of orality (adversarial) • Special principle of investigation applies in administrative proceedings (Undersuchungsgrundsatz) (inquisitorial) • Principle of party disposition (Verfügungsgrundsatz) (adversarial) • Also priniciples of expediion and immediacy - result in 1 hearing and ruling on the basis of the hearing (adversarial)

22. Can a defendant counterclaim in a German administrative law case?

23. Can a defendant counterclaim in a German administrative law case? • Yes. Set-off is also permitted. However, both are used quite rarely in comparison to civil trials.