GERMANY Law and Practice Contributed by: Ivana Mikešić and Caroline Schümann-Cohen, R & P Legal
2. Target of Challenge 2.1 Determining Susceptibility
vidual can assert that an individual, subjective right has impaired their legal position. 3.4 Agreements Between Private Entities and Public Bodies Under German law, private entities and pub - lic bodies may enter into private or public law agreements. Either way, these agreements can be challenged and put under judicial scrutiny. Depending on the subject of the agreement, either a civil court or an administrative court will be called upon. 3.5 Challenging Decisions Without Legal Effect Depending on the content and form of advice or guidance given by a public body, this type of decision itself might be challenged before an administrative court even if its effect is not binding; in any case, if the advice or guidance given proves wrong and causes damage to the private entity or individual concerned, this will be grounds for damages to be claimed before a civil court. 4. Nature of the Decision-Maker 4.1 Judicial Review of Commercial and Non-Governmental Decisions Where a person or body performs commercial or non-governmental activities within the public sphere, the civil courts are called upon to pro - vide judicial review. 5. Ouster 5.1 Legislative or Contractual Limits on Judicial Review The court’s administrative law jurisdiction cannot be ousted by legislation or by contract, or oth -
Susceptibility to challenge is determined by both the status or nature of the defendant and the nature of the decision or action challenged. These combined legal aspects will help a poten - tial claimant to decide which public entity to pur - sue. 3. Nature of the Decision 3.1 Challenging Primary Legislation Under German law, it is possible for individu - als to challenge primary legislation; however, the range for individuals is limited. The German Federal Constitutional Court will accept this type of claim in two possible circumstances: (i) if an individual claimant has unsuccessfully fought their way through the complete circuit of civil or administrative court procedures and, following final judgment by a Federal Court, can assert that the law this final decision is based on is in breach of an individual constitutional right; or (ii) if an individual can successfully argue that pri - mary legislation directly impairs (at least) one of their individual constitutional rights. 3.2 Challenging Secondary Legislation It is further possible to bring a challenge to sec - ondary legislation (i) directly, which is limited to an enumerative number of specific types of sec - ondary legislation, or (ii) indirectly, by initiating judicial review of an individual administrative act which is based on the secondary legislation to be challenged. 3.3 Government Decisions Affecting Sole Individuals Any individual can bring a challenge to govern - ment decisions of any form, provided this indi -
135 CHAMBERS.COM
Powered by FlippingBook