GERMANY Law and Practice Contributed by: Ivana Mikešić and Caroline Schümann-Cohen, R & P Legal
10.6 Bias If a decision-maker exercises a decision in a biased way, this would be treated by the court as a mistaken exercise of discretion ( Ermessens- fehler ). 10.7 Unequal Treatment As the right of equal treatment is guaranteed under the German constitution, it is possible to bring a challenge on the basis of unequal treat - ment. 10.8 Human Rights As Germany is a signatory to the European Con - vention on Human Rights, it is, in addition, pos - sible to bring a claim on human rights grounds. However, the German constitution covers all rights provided for under the European Conven - tion; only nuances in the wording of each docu - ment slightly set them apart. 10.9 Proportionality It is possible to bring a claim on proportionality grounds, which the German courts, systemati - cally, treat as part of their assessment of the cor - Finally, a claimant can challenge a public deci - sion on the grounds that it does not abide with other law regimes which are in principle binding upon public bodies in Germany – in particular, European Law. 10.11Exempt Decisions Any decision of a public body in Germany which is directed towards the public or individuals can be challenged by the affected individual. This is explicitly guaranteed under the German consti - tution. rect exercise of discretion. 10.10Additional Grounds
by dedicated legislation, the Procedural Code of the Federal Constitutional Court ( Bundesver- fassungsgerichtsgesetz ). In addition to this, the constitution is directly binding on and must be considered by any court (and any public body), with the effect that in any administrative pro - cedure, and in any court procedure, a claimant can argue that a decision is inconsistent with the constitution and must be heard by the Federal Constitutional Court. Beside the Grundgesetz , each of the 16 German states has an individual State Constitution in place, including a dedicat - ed state constitutional court which has powers similar to the Federal Constitutional Court, but limited to the respective state law. 10.3 Procedural Errors To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker did not follow the rel - evant procedure for that decision. In German administrative law, this would be called a pro - cedural fault. 10.4 Factual Errors To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker made an error of fact. 10.5 Abdication or Fettering of Discretion To prove an administrative decision wrong and be heard by the court, it is possible to bring a challenge to a government decision on the basis that the decision-maker abdicated or fettered their discretion. In German administrative law, this would be called mistaken exercise of discre - tion ( Ermessensfehler ).
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