Behördliche Beratung und Informationsrisiko

Abstract

In the social constitutional state, the administration’s mandate is not limited to making legal and expedient decisions. According to § 25 of the German Administrative Procedure Act and parallel provisions in social, tax and procurement laws, the office administrators are obliged to advise the individual to a certain extent on the exercise of their rights, whereby the requirement of legality and expediency is at least to some extent supplemented by a requirement of optimization. The present contribution will discuss the justification, the regulatory context, and the extent of the duty to provide advice, as well as the consequences of insufficient or incorrect advice. The institution of official advice is interesting for the discipline of administrative law as it stands at the interface of civil law and administrative law (substantive and procedural), and therefore, is able to reconstruct its dogmatic form on the basis of the “doctrine of legal relations”. Finally, the official duties to advise exemplify how administrative procedural law deals with information risks – a hitherto neglected component of general information administrative law.