Legal remedies in Germany for disputes between authorities and an economic operator
In the case of disputes between authorities and an economic operator, two different legal remedies can be undertaken, depending on the starting situation: objection, with subsequent action if necessary, or appeal.
A market access restricting decision made by an administrative authority regularly represents an administrative act within the meaning of Section 35 of the Administrative Procedures Law VwVfG. Against this act, the concerning operator may lodge an objection within one month – within one year if there was no instruction concerning time and manner of objecting the decision – after announcement of the administrative act (Section 70 (1) of the Administrative Courts Order, VwGO). The objection has to be lodged in writing, in electronic form according to §3a Section 2 VwVfG or as a recording rtanscript, with the authority that has adopted the administrative act.
If the objection is rejected, the concerned operator may again bring an action for avoidance before the responsible administrative court within a month or a year(Section 42 of the Administrative Courts Order, VwGO). An action for avoidance without prior objection is possible in some cases, regularly if the market access restricting decision was issued by a “oberste Landesbehörde” (supreme regional authority).
If the authority's measure lies in the declaration of an administrative offence committed by the economic operator, and this declaration takes the form of an administrative order imposing a fine, the legal remedy available is an appeal.
Administrative offences are unlawful and reprehensible actions that fulfil the legal elements of a law allowing punishment by a fine.
Two weeks after service of the administrative order, the appeal has to be lodged in writing, or as a recording transcipt, with the administrative authority that has issued the administrative order imposing a fine (Section 67 of the Administrative Offences Act, OWiG).
Following the appeal, the administrative authority can withdraw the administrative order imposing a fine. Otherwise it will forward the dossier through the public prosecutor's office to the responsible local court ( Section 69 of the Administrative Offences Act, OWiG).
SOLVIT is an on-line problem solving network in which EU Member States work together to solve problems caused by the misapplication of Internal Market law by public authorities, without legal proceedings.