Die instabile Rechtmäßigkeit von Verwaltungsakten als Auslegungsproblem

Abstract

Every legal act issued by the administrative authorities has to be lawful. Lawfulness in a material sense (materielle Rechtmasigkeit) is considered as non-contradiction between the content of the legal act and the content of the legal order. If the regulative content of such an act has intertemporal existence its lawfulness is permanently in question. This essay is about administrative acts (Verwaltungsakte) which are legal acts of this kind. It treats the common ways in which their lawfulness is established with a special focus on the intertemporal aspect. From this perspective lawfulness is open to changes, it can be seen as a contingent quality of such legal acts. An administrative act can, for example, lose its (previously given) conformity with rules of law in case the factual or normative situation changes. The article connects this phenomenon with the thesis of the Federal Administrative Court according to which the management of such changes in the legal situation is built into the content of the same laws on which the lawfulness of such acts depends. From our point of view the arising interpretative question can be understood more precisely, and some general lines of argument dealing with this question can be described. Thereby the essay wants to contribute to the substitution of case-by-case interpretation by a more dogmatic-holistic approach.