Nebenbestimmungen are additives to acts of administration, which do not contain an own regulation statement, but only peripheral restrictions express ("“, but"”). If the Nebenbestimmungen of the act of administration is separable, they can be attacked also separately, e.g. with a partial contestation complaint.

Conditions

Special laws

A speciallegal authorization to the decree of Nebenbestimmungen is present with a bound decision only if the standard contains facts and attaches as legal consequence the decree of Nebenbestimmungen to it. It is not sufficient, if the law states only that a Nebenbestimmung may be issued. This is only an indication for the fact that in principle no doubts exist to connect a permission with Nebenbestimmungen. Because of the Wesentlichkeitstheorie this is not sufficient alone however for the decree of a Nebenbestimmung.

"§ 36 VwVfG

If speciallegal conditions are missing, then revives "§ 36 VwVfG as legal basis for the decree of Nebenbestimmungen. The standard differentiates thereafter whether it concerns a bound decision, or whether the decree of the act of administration stands in the discretion of the authority.

With a bound decision or with intervention of a discretion reduction only "§ 36 exp. 1 VwVfG is possible as basis for the Nebenbestimmung. A condition for the decree is with the fact that the Nebenbestimmung guarantees the conditions for the decree of erstrebten permission. The decree of the Nebenbestimmung stands in the discretion of the authority.

If permission stands in the discretion of the administration, then it can rely with decree of the Nebenbestimmung both on "§ 36 exp. 1 VwVfG, issue thus Nebenbestimmung to the safety device of the conditions for facts, but beyond that also after discretion in accordance with "§ 36 exp. 2 VwVfG Nebenbestimmungen issue. The discretion is limited for 36 exp. 3 VwVfG however by the principle of the proportionateness as well as the prohibition of the specialadverse coupling out "§.

Kinds

According to their contents Nebenbestimmungen can be differentiated there, whether they contain their own regulation, or a part of the act of administration to only represent.

dependent Nebenbestimmungen

Dependent Nebenbestimmungen it concerns, if the regulation no own Ge or prohibition statement contains, but presents itself as part of the total regulation. In addition, they affect the direct regulation statement of the act of administration and require thereby no conversion, are not executory.

Stipulation of a time limit, "§ 36 exp. 2 No. 1 VwVfG

During the stipulation of a time limit the effectiveness of a act of administration is attached to a timing. This can lead to the fact that the act of administration becomes later effective only (dilatory) or upon expiration of a certain time becomes again ineffective (solvent).

Condition, "§ 36 exp. 2 No. 2 VwVfG

With the condition the effectiveness of the act of administration depends on the entrance of an uncertain future event (the condition). Also the condition can be dilatory or solvent out-arranged.

Revocation reservation, "§ 36 exp. 2 No. 3 VwVfG

The administration can reserve itself with decree of the act of administration also each-early revocation under the conditions specified in more detail. Later if the revocation takes place, this lets the effectiveness of the act of administration be void.

independent Nebenbestimmungen

Independent Nebenbestimmungen contains its own regulation statement and is independently executory. However they do not affect the effectiveness of the act of administration and its regulation statement.

Edition, "§ 36 exp. 2 No. 4 VwVfG

The edition is issued together with the act of administration and justifies for the citizen obligations. These can be interspersed in the way of the administrative enforcement. With lasting offences also a revocation of the act of administration is possible in accordance with "§ 49 exp. 2 P. 1 No. 2 VwVfG.

The contents-modifying edition represents a special case, which connects an edition with a contents regulation. This serves the administration to limit contents of permission if permission were futile otherwise because of uncertainty.

Edition reservation, "§ 36 exp. 2 No. 5 VwVfG

With the edition reservation the administration regulates the conditions, under which an edition are issued later or can be changed.

Right protection against Nebenbestimmungen

Independent Nebenbestimmungen (edition and edition reservation) is in principle isolated in the way of the contestation complaint open to attack. Whether this applies also to discretionary decisions, is however disputed. The dominant opinion differentiates. If the remainder VA without the Nebenbestimmung is no longer meaningful or illegal, the contestation complaint is permissible, but unfounded. Then for the plaintiff only the possibility with the obligation complaint remains on new-lets a beside-regulation-free VA complain. On the other hand the possibility of the isolated contestableness can exist with estimation acts of administration nevertheless, if to the authority a correction discretion is granted in accordance with "§ 49 II No. 2 VwVfG similar.

Nebenbestimmungen (stipulation of a time limit, condition, revocation reservation) are after in the meantime more strengthened, although disputed iurisdiction of the Federal Administrative Court likewise isolated contestable, if they are materially divisible prozessual and. For the material divisibility in the context of the legitimacy of the complaint it depends on the legal standard of the remainder act of administration and on it whether this contains still another meaningful regulation. As argument for it to "§ 113 I 1 VwGO is referred, according to which the word permits "“so far"” evenly also a partial abolition of acts of administration. In addition the authority - also with discretionary decisions - can issue if necessary a new, legal edition or waive the act of administration.

Related links

• "§ 36 VwVfG
• "§ 49 VwVfG

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