Der Verwaltungsvertrag: Bestandsaufnahme und Reformbedarf

Abstract

Abstract The regime concerning administrative contract law under sec. 54 et seq. of the Administrative Procedure Code (VwVfG) appears to be in need of reform. Amendment of the code remains on the political agenda, though other projects such as Europeanisation, democratisation and digitisation currently seem to enjoy precedence. In recent times, progressive development of administrative contract law has shifted to specific legal areas, in particular to construction and planning law, environmental law, elements of public commercial law, tax law and social legislation. How administrative law may be distinguished as a specific discipline is a question of principle, effectively representing a new chapter in the dispute concerning methods that occurred in the 19th century, a question, moreover, that extends far beyond the law concerning administrative contracts. In order to reform the current legal provisions covering administrative contracts in the Administrative Procedure Code, a three-part analysis is proposed: First of all, the specific interests of both the public authority and the citizen must be taken into consideration. Subsequently, the current legal regulation of administrative contracts must be analysed in terms of both its fundamental ideas, as well as its central provisions. Finally, it is necessary to determine whether the teleology of the public law contract can be applied to this area, or whether specific, factual connections or constellations of interests must be taken into account, entailing that the use of a model based on general standards seems inappropriate. The result of the foregoing is that a critical analysis of the evolution of administrative contract law is proposed.