Illegality of the Administrative Act as a Prerequisite for the Merits of the Administrative Action in German Law

The article considers the legal regulation, content and algorithm for reviewing legality of an administrative act, taking into account that the illegality of an administrative act is one of the reasons for challenging an administrative act in court according to the law of the Federal Republic of Germany. The author, based on German legal literature and judicial practice, in particular reveals the principle of legality of public administration and describes the requirements of legality of an administrative act, stemming from this principle. The principle of legality in public administration contains two components: the principle of (1) priority of law, according to which public administration authorities must act in accordance with the law, and the principle of (2) proviso of law, according to which public administration authorities may only act if they have been authorised to do so by law. It follows that an administrative act is legal if it is based on a legal provision — authorizing administration to act this way — legal requirements regarding competence; procedure and form (formal legality) have been complied with, and the public administration body has duly considered legal preconditions for its application; as well as limitations as to the choice of legal consequences (material legality). As a legal consequence, the law may provide for a binding (bound) decision or give the public administration the freedom to choose between different courses of action (discretion). The discretion must be exercised in accordance with the purpose of the АДМИНИСТРАТИВНОЕ ПРАВО. ФИНАНСОВОЕ ПРАВО. ИНФОРМАЦИОННОЕ ПРАВО Журнал зарубежного законодательства и сравнительного правоведения. 2021. Т. 17. No 6 17 power granted and within the limits set by law, as well as those derived from the constitutional principles of proportionality, equal treatment and fundamental rights.