Appeal procedure (optional); lodging an appeal

The objection procedure according to the Administrative Court Code

The objection procedure in accordance with the German Code of Administrative Court Procedure (VwGO) enables an internal administrative review of the initial decision. The following statements only apply to the objection procedure within the meaning of the VwGO. They do not apply to the legal remedies regulated in other laws, such as the objection procedure under the Social Courts Act as a preliminary procedure to an action before the Social Court.

Limited scope of application in Bavaria

According to Art. 12 of the Act on the Implementation of the Administrative Court Code (AGVwGO), the appeal procedure against decisions of the authorities of the Free State of Bavaria, the Bavarian municipalities, districts, counties and other legal entities under public law subject to the supervision of the Free State of Bavaria (Art. 12 para. 3 sentence 1 AGVwGO) has been abolished in many areas.

In some areas of law (see Art. 12 para. 1 sentence 1 nos. 1 to 6 AGVwGO), on the other hand, there is an optional objection procedure that offers a choice between lodging an objection and bringing an action directly. Within the scope of application of Art. 12 AGVwGO, an objection procedure only exists in the following areas:

1. in the area of municipal tax law
2. in the area of agricultural law including the law on agricultural subsidies as well as in the area of the law on forestry subsidies and hunting law shooting plan procedures,
3. in the area of school law, including the law on school funding and school transport,
4. in the areas of training and study funding law, residential care law, child and youth welfare law, child, youth and family support, war victims' welfare law, severely disabled persons' law, maintenance advance law, housing benefit law, broadcasting levy law and in the context of funding under the European Social Fund (ESF funding), insofar as administrative recourse is available in each case,
5. in matters relating to civil servants, with the exception of disciplinary law,
6. for personalised audit decisions.

Please note: Where other laws and regulations (at federal or state level) contain provisions on preliminary proceedings that deviate from Article 12 of the AGVwGO (e.g. Section 141(1) of the Land Consolidation Act; Sections 336 to 338 of the Burden Equalisation Act; Section 6(1) of the Ordinance on Redistribution Committees and Preliminary Proceedings in Redistribution Matters), these shall take precedence as special provisions (Article 12(3), second sentence, AGVwGO).

Section 12 of the AGVwGO does not 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 objection must be lodged in writing, electronically or for the record (subject to a fee) with the original authority (the authority that issued the decision to be contested, e.g. district administration office or district-free city). The appeal can also be lodged with the appeal authority. An objection submitted by personally signed fax or by computer fax with a scanned signature fulfils the written form requirement. An oral or telephone objection is inadmissible. If the recipient has opened a corresponding access point for the transmission of electronic documents, an objection can also be lodged in electronic form. According to Section 70 sentence 1 VwGO i.V.m. § Section 3a (2) and (3) VwVfG, objections may be lodged by the following electronic means:

• Transmission of a document with a qualified electronic signature,
• direct submission of the declaration in an electronic form if this is made available by the authority in an input device or via publicly accessible networks (in the second case only when using an electronic proof of identity in accordance with Section 18 of the Identity Card Act, Section 12 of the eID Card Act or Section 78 (5) of the Residence Act)
• Transmission of a declaration electronically signed by the declarant to the authority
  • from one of the mailboxes specified in Section 3a (3) No. 2a to c) VwVfG or
  • with the dispatch type in accordance with Section 5 (5) of the De-Mail Act.
• For public authorities:
  • by sending an electronic document bearing the authority's qualified electronic seal, or
  • by sending a De-Mail message in accordance with Section 5 (5) of the De-Mail Act, in which the confirmation of the accredited service provider recognises the authority as the user of the De-Mail account.

However, it is not possible to lodge a legally effective objection by (simple) e-mail.

The objection should be sufficiently substantiated. Only if the authority knows why you do not agree with the contested decision can it carry out a comprehensive review.

The redress procedure

The redress procedure (Section 72 VwGO) is part of the appeal procedure. It is conducted by the original authority, which thus has the opportunity to comprehensively review the decision itself. Only then is the matter submitted to the appeal authority.

Does a contested decision have to be complied with despite an objection? - Suspensive effect

According to Section 80 (1) VwGO, an objection generally has suspensive effect, i.e. the contested administrative act does not have to be complied with initially. However, this principle has been restricted by a number of statutory regulations. For example, the suspensive effect pursuant to Section 80 Para. 2 Sentence 1 VwGO does not apply by law, e.g. in the case of demands for public charges (such as contributions and fees) and costs and, above all, in other cases prescribed in various laws. Furthermore, the objection has no suspensive effect if immediate enforcement is specifically ordered by the authority (Section 80 (2) sentence 1 no. 4 VwGO).

Administrative acts usually contain a reference to the suspensive effect of the objection, if this is possible.