Administrative judges usually have to work for some time after their employment as civil servants with the administration (in Bavaria for instance all administrative judges active have worked for six years on average with administrative authorities). This administrative practice, however, is often completed only after a time at the court.
German professional judges are paid sufficiently, although on a comparatively poor level. In difference to most of the other European states the gross annual salary of a first instance professional judge is only just at the level of the average gross annual salary (see CEPEJ study Edition 2006, Table 49 page 115). Higher salaries, however, could probably be paid only in the context of reducing the number of judges (see below), as politicians tend to underestimate the importance of the judicial system and are extremely stingy in this field. Special advantages granted to the individual judge in consideration of his/her output would jeopardize impartiality and quality rather than improve efficiency.
1.3 Number of judges:
Federal judges 63
State judges 2’253
Compared with the population (82’310’000) this means an average of one administrative judge per 35’540 inhabitants.
Remark: There are three branches of administrative courts in Germany, (1) Administrative Courts (for administrative law in general), (2) Finance Courts (for taxation law) and (3) Social Courts (for social insurance law). The above mentioned figures (from 2003) refer only to professional judges at type (1) courts.
According to the European Commission for the Efficiency of Justice (CEPEJ – European judicial systems, Edition 2006) there are 20’395 full-time professional judges in Germany (= 1 judge for 4’036 inhabitants). Taking into account that the figures including part-time judges are higher, administrative judges come to about 10% of all German judges.
1.4 Non-judge staff:
Special figures concerning all German Administrative Courts are not available. Following the data of the CEPEJ study 2006 (see Table 33 page 84) the non-judge staff working in courts of all sorts amount to 58’922 people, 2.9 per judge. At the administrative courts, however, the proportion is much more disadvantageous as there are no “Rechtspfleger” (i.e. specially qualified assistants taking care of small claims). Furthermore the widespread use of computers leads to a constant reduction of secretarial staff.
In Bavaria the proportion of administrative judges to non-judge staff is 1 : 0.9.
1.5 Working conditions:
Apart from hearings and judicial views the administrative judge is usually working alone in a separated study. Here also collections of the most important laws needed for his/her daily work are at his/her disposal. Computers with access to internet and specialised data base are standard. Specially qualified employees are taking care of computer hardware and software and of the intranet. Legal gazettes, extensive specialist literature, collections of judicial decisions and general information are also available in the library. Paperwork is done by typists. Judges at the Federal Administrative Court have assistants with a full academic education supporting them (usually young administrative judges temporarily delegated soon after their employment). These are charged with preparing draft decisions and investigating the necessary sources. To support the judges at first and second instance courts there are but the administrative units for each chamber/senate, where files are stored and dealt with, pleadings and other correspondence is handled, summons are delivered, hearings and judicial views are organized.
1.6 Internal working regulations:
In general the administrative judge – like any other professional judge – is totally independent in organizing his/her work. He/she is particularly not obliged to spend definite hours in office. Work can be done at home, too.
The presiding committee is competent for the assignment of actions. It distributes the work among the chambers/senates of a court on a general scale by assigning the different legal fields to the chambers/senates. The main criterion for this decision is the actual and predictable burden of every chamber/senate. The internal distribution among the judges of the chamber/senate has to be regulated by a general rule defining abstractly and beforehand, who will be in charge of a case (this is required by the constitution). The decision on this regulation is up to the chamber/senate as such. It is drawn up normally at the beginning of the year and remains in force for the rest of the year unless unforeseen events ask for alteration. A distribution following the input of new cases and favouring the presiding judge in view of his additional work for the chamber/senate is usual.
There are hardly any means of controlling the work of a judge. Decisions made by a single judge cannot be controlled anyway. They can only be cancelled by the higher instance provided an appeal is admissible. Decisions of a chamber/senate are approved of by a majority, at least two out of three judges. Here the cooperation of the chamber/senate works as a sort of control in itself. Nevertheless the presiding judge is not entitled to give any instructions or to reprimand a judge. However, the way a younger judge is doing his/her work can be influenced indirectly by the assessment, which is periodically drawn up by the president of the court and normally based on information from the side of the presiding judge.
Unless an intentional perversion of law can be proved, there are no possible sanctions for not fulfilling the requirements concerning the quality of work. As for quantity administrative judges are not bound to internal benchmark figures (other than judges at civil and criminal courts, where an informal bondage to such figures is of great importance). Disciplinary measures can be taken but in very serious cases. Internal control procedures don’t exist on a formal level. Periodical statistics, however, often serve as an informal means to urge judges to work.
2.1 Access to administrative justice:
At a first instance administrative court legal actions needn’t to be introduced by a lawyer, unless an upper court has to act as first instance court.
If not assisted by a lawyer the plaintiff can seek the assistance of the chamber’s administrative unit to write down and officially accept his verbal complaint. In the course of the procedure an oral hearing by the single judge or the chamber is compulsory, unless the parties waive this part of the procedure. Here the plaintiff is allowed to produce his arguments in person. The judge/chamber is not only obliged to disclose the facts of the case entirely but also has to see that submissions are sensible. In this respect the plaintiff can claim the judge’s/chamber’s support.
At the upper administrative courts and at the Federal Administrative Court a lawyer is compulsory, both for introducing a complaint or an appeal and for making any written or oral submissions to the court.
Submissions concerning an urgent interim decision of the court are usually accomplished on written proceedings.
2.2 Types of procedures:
There are two main types of first instance procedures:
contentious proceedings, where an oral hearing is compulsive, unless the parties denounce their respective rights and agree to a decision accomplished on written proceedings,
proceedings preliminary to an interim decision of the court concerning urgent matters (oral hearing is allowed but not necessary).
Proceedings in the higher instances are instituted by a separate part, where the judicial review is confined to the question, whether an appeal can be admitted. After the admission of an appeal either the contentious proceedings (upper administrative court) or a full review of the case on points of law (Federal Administrative Court) follow.
2.3 The different steps of the procedures:
Previous to starting legal action to set aside an administrative act or to achieve the issue of an administrative act, that has been refused, the claimant has to present his objection to the upper authority. This has to be done within a deadline of one month after the issue or the refusal of the administrative act. The upper authority is required to decide on the objection within “appropriate time”, there is no definite time limit. In case of unfounded delays the claimant is entitled to start legal action (action on the grounds of administrative inactivity) without the upper authority having decided on the objection, but at the earliest three months after the objection has been registered. Otherwise he/she has to file an action within a deadline of one month after the upper authority’s ruling on the objection. Deadlines to give reasons and to reply are usually determined by the judge in charge. In some special matters those deadlines are legally prescribed. Along with the reply the administrative authority has to present the records. It is then up to the judge in charge to prepare the oral hearing so that the case can be decided based on but one hearing. He/she is not bound to any time limit. In general the facts of the case are thoroughly investigated. To that goal the judge can ask the parties to give their opinion to special aspects of the case, name witnesses and experts, present additional documents or facts and can set deadlines for this at his/her discretion. Once the preparation based on the records is completed the parties, and if necessary witnesses, experts or interpreters are summoned. The hearing is to be held in public. The decision of the court is usually pronounced in public immediately at the end of the hearing or at a special hearing. Otherwise the written operating part of the judgement has to be handed over to the administrative unit by the single judge/chamber/senate within a fortnight after the (last) oral hearing (this is legally prescribed), so the parties can obtain it. The judgement’s written grounds have to be delivered to the parties within five months after the (last) oral hearing (this deadline has been set by jurisdiction). The deadline for an appeal is started by delivery of the written grounds.
By a special type of law suit a judicial review of rules and regulations below the level of a law can be achieved. In such cases the upper administrative court is acting as first instance court.
Along with introducing his/her complaint the plaintiff has to pay provisional suit money. Lawyers usually charge an advance payment of costs, too. If the plaintiff is unable to provide for these costs he/she can claim legal aid in a special procedure. Legal aid is granted by the court if the action in question appears to be successful. An appeal to the higher instance court is possible if the application for legal aid is refused.
The administrative act is being suspended once an objection is registered with the upper authority or an action is introduced and cannot be executed or implemented unless the authority in charge issues a special order to do so with regard to the public interest. (see also below 2.5).
2.4 Internal organization:
First instance cases are usually dealt with by a chamber consisting of three professional and two lay judges. The lay judges cooperate only in the course of a hearing. In written procedures (parties can also denounce their right to a hearing) decisions are made without them. The chamber – i.e. the presiding judge and two assistant judges – can give simple or unimportant cases to one of its members to be decided by him/her alone.
At the upper administrative court decisions are made by a senate, consisting of up to five judges. Dependent on the type of the case and the regulations of the state there are three or five professional judges forming a senate or at hearings three professional judges in cooperation with two lay judges.
Judgements of the Federal Administrative Court are made by three or five professional judges. There are no lay judges consulted.
2.5 Urgent matters:
The plaintiff can ask the court to issue a provisional decision if his/her claims are jeopardized simply by the course of time. This decision is usually issued without a hearing based on the records (if these have been presented in time) and the pleadings. In case the complaint has not been filed at the same time, the court can charge the plaintiff to do so.
If the execution or implementation of an administrative act is imminent upon a special order by the authority this can be stopped by an interim injunction of the court. Moreover the court is entitled to establish a provisional state of facts or to stop a damaging development. Interim orders of the court are possible in all instances.
2.6 Extent of judicial review:
The judge (chamber/senate) has to investigate the facts of a case entirely. He/she can also control whether the discretion (if discretion is granted at all by the law) has been used by the authority objectively and in accordance with the intention of the law. The judge, however, is not allowed to take a decision instead of the administrative authority unless any other decision proves to be illegitimate.
2.7 Delays of the procedures:
On average procedures last
at the first instance administrative courts 17.8 months
at the upper administrative courts acting as first instance courts (e.g. in some special matters of regional or countrywide importance) 21 months
at the upper administrative courts acting as courts of appeal 8.6 months
Remark: These figures greatly differ in the German States (Länder).
The figures for Bavaria are for instance:
at the first instance administrative courts 7.4 months,
at the Bavarian Administrative Court acting as first instance court 17.5 months,
at the Bavarian Administrative Court acting as court of appeal 8.4 months.
2.8 Means of enforcement:
Once it has become final, the judgement of an administrative court is usually respected by the administration. Enforcement is necessary but in very rare and specific cases. Enforcement is going in general by the rules of enforcement applied to civil law cases. There are specific advantages granted to administrative authorities with regard to their public responsibility. The court can impose coercive enforcement penalty, if the authority is not prepared to execute the judgement.
2.9 New technologies:
Although computers with access to the internet are standard their use to officially filing legal actions, submissions and replies or to transmit the briefs are but at the stage of being tested.
However, the rules of procedure allow parties to introduce the briefs and legal documents by fax.
2.10 Central computer systems:
There are central computer systems provided by each state as well as on a countrywide level to which all judges are linked comprising specialist data base, in particular laws and jurisdiction.
2.11 Appropriateness of facilities and means:
In my opinion the facilities used by the administrative courts and the means put at their disposal by the State are appropriate.
2.12 Budget figures:
Specific figures for the administrative justice are not available.
Total annual budget allocated to all courts including prosecution and legal aid in 2004:
8.669.852.576 € (source: Federal budget and state budgets).
Public budget in 2004 (federation and states):
529.500.000.000 € (source: Statistic Yearbook 2005)
About 1.6% of the public budgets are spent on jurisdiction.
Taking into account that administrative judges come to about 10% of all German judges it can be estimated that in 2004 an amount of approximately 900.000.000 € has been allocated to the administrative jurisdiction.
2.12 Alternative proceedings:
Mediation as an alternative to the contentious proceedings is at the stage of being tested with some first instance administrative courts in Germany. There are difficulties with regard to the public interest the administrative authorities have to take care of.
2.13 Legal remedies:
Against the judgement of a first instance administrative court an appeal can only be introduced, when it has been admitted by the court (in the operating part of the judgement). Otherwise the losing party can introduce an application to the upper administrative court for an appeal to be admitted.
Informal: See below B) 2.5
1.1 Relations to the press:
Administrative courts have a press speaker, who is to be informed by the chambers/senates on cases of general interest. In such cases press releases are usually issued.
1.2 Annual reports:
The administrative courts are not obliged to prepare annual reports about their activities. Nevertheless most of them do so. At the beginning of the year the presidents usually present statistic figures concerning their respective court to the press in the context of an interview.
1.3 Access to judgements:
Only judgements of the Federal Constitutional Court are published in the internet accessible directly via the internet page of the court. Although administrative courts have internet pages, too, their judgements are only accessible either in specialist journals or by internet in a specialist data base (“JURIS”) made for professionals (lawyers, judges). A copied issue of a judgement can also be obtained from the respective court by individual request.
1.4 Information of parties:
The parties of a case pending have access to the files at any stage of the proceedings. They are in particular entitled to inspect the records presented by the administration. Usually they are confined to do so personally or by an authorized person at the administrative unit of the chamber/senate, where the files are stored. Lawyers, however, often have the files sent to their office.
1.5 Exchange of information and experience with other courts:
There is no formal institution to secure the exchange of information or experience with other German administrative courts. Informally exchange takes place mainly during specialized conferences confined to particular problems. These are part of further vocational training. On a more general level the Federation of German Administrative Judges (BDVR) and its regional associations provide opportunities to get in contact with colleagues.
At present there is hardly any exchange with administrative courts in other countries. The AEAJ-conferences as well as the periodical conferences of the Association of German, Italian and French Administrative Judges hopefully will bring an improvement.
Statistics about affairs settled during the judicial year, about the stock of affairs pending and about the number of affairs dealt with by individual chambers/senates and judges are prepared with every court.
2.2 Electronic file system:
Electronic file systems are but being tested. At present electronic systems to ensure the follow-up of the affairs don’t exist.
There are no periodical evaluations or control procedures concerning the activity of administrative courts. Upon the initiative of the presidents of the upper administrative courts (in each state of the Federation there is but one upper administrative court) a sort of evaluation confined to but a few questions has been made recently. As for the quantity of work to be done in relation to the number of judges necessary a study has been made during the last years, whose results are actually being implemented. The implementation is up to the departments in charge in the different states (usually the department of justice) in cooperation with the presidents of the upper administrative courts.
Remark: Jurisdiction in general is a task within the competence of the different states of the German Federation. The (five) Federal Courts are only established to secure compliance with federal law.
2.4 Possible sanctions:
In case of misbehaviour or inactivity of a judge the president of the court can induce disciplinary proceedings.
2.5 Compensation procedures:
2.5.1 Errors committed by the chamber/senate or by the individual judge:
In this case the party affected can register a remonstration, which is regarded as an informal legal remedy and is to be decided on by the judge/chamber/senate in question.
There is not yet a special type of complaint with regard to inactivity of judges. A regulation is being prepared.
2.5.3 Violation of the due process of law:
In case of a violation of the due process of law a special appeal can be introduced, if other legal remedies are not admissible. If applicable the judge/chamber/senate then has to resume the proceedings.
2.6 Complaints against the way the administrative courts work:
Apart from the above mentioned formal and informal legal remedies there are no further possibilities, to introduce complaints against the way the administrative courts work.
2.7 Studies about the feed-back of “customers”:
Actually on the level of the different states of the German federation there is a debate about quality going on labelled “Interior Modernisation”. In the context of this debate several upper courts have ordered studies about the feed-back of “customers” (persons affected by the activity of administrative courts).
1. Delays are to be feared mainly because there is no definite deadline for the judge to work up a case.
2. A certain time limit to summon the parties for the oral hearing after the presentation of the records could be helpful to avoid delays.
3. As a means to improve the system, in particular to prevent highly important infrastructure projects from being stopped for a long time by interim injunctions recently the legislation has decreed that actions concerning some specified infrastructure projects (motorways, channels, railways) are to be filed exclusively at the Federal Administrative Court, who has to act here as first (and last) instance court.