Die Allgemeinverfügung im Gefüge der Handlungsformen- und Maßstabslehre

Zusatztext

The general order (Allgemeinverfügung), as an established form of administrative action, has come into the focus of legal scholarship and public debate in the wake of the COVID-19 pandemic, assembly bans during climate protests, and prohibitions on carrying dangerous objects in train stations. Taking into account the requirements set out in § 35 sentence 1 and, in particular, sentence 2 of the Administrative Procedure Act (VwVfG), the general order can be classified as a modification of the administrative act. Consequently, the general provisions of administrative procedure law-such as those governing assurances or withdrawals-are likewise applicable to the general order. By addressing a large number of persons, the general decree proves to be a particularly effective form of administrative action, a fact acknowledged by the exceptions provided in the VwVfG regarding hearings, reasoning, and publication. However, with regard to the so-called "individual case" as the boundary for the use of general orders, there remains considerable uncertainty in legal scholarship. This gives rise to difficulties in distinguishing the general decree from other forms of administrative action, such as the collective order or the statutory ordinance. The requirement of the "individual case" therefore calls for further specification through the use of guiding principles for administrative action-for instance, considerations shaped by crisis contexts, such as the concept of resilience. Furthermore, so-called Allgemeinverfügungen sui generis are analyzed, and a legislative proposal for amending the VwVfG is presented. In addition, Kerstin Batschak examines potential prohibitions on the use of the general order as a form of action-for example, such a prohibition may be assumed in the case of residence bans, but rejected with regard to assembly bans applying to a large number of assemblies. Finally, the work addresses available legal remedies and existing weaknesses in legal protection, which make an administrative duty to react to unlawful general orders necessary.

Autorenportrait

Born 1995; studied law at Saarland University; First State Examination in Law in 2021; Research Assistant at the Chair of Public Law at Saarland University; PhD in 2024; legal clerkship ( Referendariat ) in the district of the Palatinate Higher Regional Court (Zweibrücken); Second State Examination in Law in 2025.

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