judicial review

noun · Anfechtungsklage

Anfechtungsklage to have the decision set aside, Verpflichtungsklage to force the one the authority refused, Normenkontrolle to attack the rule behind it. German law has no single procedure of that name, so the English term names nothing until the Klageart is chosen, and the court that hears it does not stop at quashing, it can order the authority to issue the decision it refused, § 113 Abs. 5 VwGO, where an English court would ordinarily quash and send the matter back.

Which translation, when

Anfechtungsklagethe claim to set aside a burdensome Verwaltungsakt, § 42 Abs. 1 VwGO, the nearest thing to a quashing order and the right reading of judicial review in most decision letters.

Verpflichtungsklagethe claim to compel the Verwaltungsakt the authority refused or withheld, § 42 Abs. 1 VwGO, where English practice would seek a mandatory order; the court can order the permit itself once the case is ripe for decision, § 113 Abs. 5 VwGO.

Normenkontrollethe attack on the subordinate rule rather than on the individual decision, § 47 VwGO, brought before the Oberverwaltungsgericht within a year of publication, the usual route against a Bebauungsplan and open against other subordinate Land rules only where the Land has provided for it, § 47 Abs. 1 Nr. 2 VwGO.

Why

English judicial review is one supervisory procedure with a permission filter, generous standing and discretionary remedies. German administrative litigation starts a step earlier, with the choice of Klageart, and the choice is not cosmetic. § 42 Abs. 1 VwGO offers the Anfechtungsklage to annul a Verwaltungsakt and the Verpflichtungsklage to obtain one that was refused, § 47 VwGO offers the Normenkontrolle against subordinate rules, and each carries its own court, clock and standing test. The clock is the sharpest difference: one month from service of the Widerspruchsbescheid or, where no Vorverfahren is required, from notification of the act, § 74 Abs. 1 VwGO, against an English limit of three months at the outside, with promptness required in any event, and six weeks in planning cases, CPR 54.5. Standing is narrower too, because § 42 Abs. 2 VwGO asks the claimant to assert a violation of his own rights rather than a sufficient interest. What he gets in exchange is a fuller review: the court examines the facts as well as the law, sets the act aside where it is unlawful and violates his rights, § 113 Abs. 1 VwGO, and holds back only before genuine discretion, § 114 VwGO. Nor does it hold the two English filters on relief: an English court may refuse a remedy for undue delay, s.31(6) of the Senior Courts Act 1981, and must refuse one where the outcome would highly likely not have been substantially different, s.31(2A), unless exceptional public interest justifies disregarding that, s.31(2B). The German counterpart is narrower: a procedural or formal error alone will not carry an annulment where it obviously did not affect the decision on the merits, § 46 VwVfG. Translate judicial review flatly and the German reader learns neither which claim is coming nor that the month may already be running.

Typical mistakes

Judicial review names no German procedure, so gerichtliche Überprüfung in a letter leaves the recipient guessing whether an Anfechtungsklage, a Verpflichtungsklage or a Normenkontrolle is meant, and the three are filed at different courts on different clocks.
The month of § 74 Abs. 1 VwGO is easy to miss for a lawyer counting three months; it stretches to a year only where the Rechtsbehelfsbelehrung was missing or wrong, § 58 Abs. 2 VwGO, which is not something to plan around.
Standing under § 42 Abs. 2 VwGO asks for a violation of the claimant’s own rights, so a campaign group with a sufficient interest in English terms may have no Klagebefugnis at all unless a statute gives its association a right to sue.

What matters

A client letter announcing judicial review of a German permit has to name the Klageart before it means anything: Anfechtungsklage against the permit, Verpflichtungsklage for the one refused, Normenkontrolle against the plan behind it. The advice that sets a three-month diary date has already lost the case, the month of § 74 Abs. 1 VwGO running from service and the Widerspruch, where the Land still requires one, having to go in earlier still.

Authority

§ 42 VwGO
§ 47 VwGO
§ 58 VwGO
§ 74 VwGO
§ 113 VwGO
§ 114 VwGO
§ 46 VwVfG
CPR 54.5
s.31 Senior Courts Act 1981

What the machine misses

Machine output turns judicial review into gerichtliche Überprüfung, which describes an activity rather than naming a claim, and the German reader cannot tell what is about to be filed. The three real candidates are the Anfechtungsklage and the Verpflichtungsklage of § 42 Abs. 1 VwGO and the Normenkontrolle of § 47 VwGO, each with its own court and its own deadline, and the one-month clock of § 74 Abs. 1 VwGO keeps running while the sentence is read as a general statement of intent.

See what the machine does with this clause →

Examples

to apply for judicial review	Anfechtungsklage erheben
to be amenable to judicial review	verwaltungsgerichtlich angreifbar sein
to quash the decision	den Verwaltungsakt aufheben
judicial review of the plan	Normenkontrolle gegen den Bebauungsplan

More notes on these sections

discretion Ermessen

administrative act Verwaltungsakt