The
German legal dogma coined both the terms Eingriffsverwaltung and Leistungsverwaltung as a way of describing the
Administration and its actions. This post is going to deal not only
with the difference between Eingriffsverwaltung and
Leistungsverwaltung, but also with the continuing relevance of
these terms in explaining different administrative types and
functions of the Public Administration. As the terminology originated
in Germany, remarks on that country’s Administration are
inevitable, as are tangents to European Law, which nowadays often
supersedes national statutes.
1. The Administration and Administrative Law
First and foremost, it must be stated that the Administration and
Administrative Law are not one and the same. While the former refers
to the combined organisms entrusted with enacting the law through
mechanisms created especially for these entities, the latter is
defined as the law enabling, legitimizing and restricting the actions
of the Administration. The terms relate in the way of a conditio
sine qua non to one another but are not synonymous. It is
furthermore important to note that the use of the word
“Administration” in this post is not meant as the cabinet under
one specific president or leader, as is the regular usage in the USA,
but refers to the Public Administration in a broader sense.
a.
The Administration
From the entities during the
feudal Middle Ages in Western Europe, that, among other
responsibilities, were entrusted to take in taxes in lieu of the
ruler, to the colonial administrations on the Indian subcontinent,
e.g. the East India Company, to the Agencies of the European Union as
the latest specialized organ in times of supranational
administrations, the need for an Administration (or administrative
entities) has existed since the need for the enforcement of laws and
consequentially the carrying out of executive power arose. At the
same time, these organizations soon found themselves in need of a
some sort of legal base framework to organize them from within, but
also to integrate them into the organizational scheme of states.
The
question of separation of powers, as well as checks and balances, are
of the utmost importance in this context. The montesquieuan
tripartite separation into Legislative, Judiciary and Executive
Powers, prevalent in most of the Western world, separates competences
on a horizontal level and puts them upon specialized bodies. While
some scholars argue for a different way of dividing powers and some
even think of the Administration as its own power, this post will
adhere to the classical partition for the sake of briefness. This
model not
only represents
a factual separation of powers, but is
also a legal instrument
which prevents abuses by any branch of government. Furthermore,
through intricate mechanisms of control, each branch is kept in check
by another (checks and balances): the Executive, is the enforcing
organ, enacting legislature. The Administration, as understood here,
is a part of this larger body, executing
legislation, enforcing
public policy and
fulfilling a state’s policy goals, as
well as exerting
regulatory functions. It
is usually kept in check by the control of the Judiciary, which
decides on the lawfulness of its actions, and the Legislature,
which passes laws determining competences,
granting
and restricting powers in
the first place.
b.
Administrative Law
Administrative
Law
is, as already described, the entirety of legal norms which enable
and confine the actions of the Administration.
The
Administration is internally regulated by Administrative Law, while
the norms also apply to the Administration’s dealings with the
People. Consequently, Administrative Law is
applied in different
constellations: first, in relation between state organs (internal)
and second, as the law regulating the state’s
relation to its subjects (external).
Additionally,
it must be clarified that, while the objective, general
and all-binding
character of norms
constituting the Administrative
Law has never seriously been questioned, the
existence of subjective
rights, as in individualized rights in
the realm of Administrative Law
which enable the rights-bearer to demand an action or the
renunciation by the
state thereof, have
been actively debated. As
other posters have also noted, the Schutznormtheorie
by
Bühler created a formula
to recognize a norm which grants subjective rights: according
to him, subjective rights are granted to individuals if the wording
of the law is not only objectively applicable, but also intends to
bestow subjective rights upon citizens.
Nowadays,
subjective administrative rights are
widely recognized.
This matter
has been broached
at length in previous
posts, which all
emphasize the constant
friction between
the Administration’s
legitimate interests and
citizens rights. In this way, the Administration is not only limited
in its actions by the enabling legislature, but also through the
Peoples’ subjective rights, which
they
themselves indirectly
stem from fundamental
constitutional rights.
c.
Administrative Law and
Constitutional Law
Administrative Law is Public Law in its essence and, as Otto Mayer
said in his famous introduction to the third edition of his book
Deutsches Verwaltungsrecht (1924),
Constitutional Law made concrete. The supremacy of the Constitution
guarantees that all state organs are bound by Constitutional Law, as
are ensuing statutes, which have to be in accordance with said text.
This then, naturally, applies to Administrative Law.
Governments realize their policy goals and state principles through
the Administration, in the confines already established above.
Fundamental rights as well as other constitutional principles,
restrict the Administration’s actions as a last bastion of
protection for individual rights, seeing as every state institution
has to protect and cannot violate citizens’ fundamental rights.
Fundamental rights, mainly set by constitutions, have multiple
dimensions. The subjective dimension grants citizens rights, while
the objective side of fundamental rights puts responsibilities upon
the state as well as stating an objective regime of values.
Functionally this plays out as fundamental rights not only giving the
individual the possibility of defending themselves against the state
(status negativus) but also
of demanding state’s actions
to realize these rights
(status positivus) and
finally to actively participate in and shape politics (status
activus). As
a result of the state being in a position to intervene in individual
fundamental rights to realize
legitimate goals and
individuals having subjective
rights as a defense against state intervention, a balance of these
conflicting interests has to be struck.
The
aforementioned national confines are being broken away more and more
as the European Union takes over administrative duties (see Articles
290, 291 TFEU). Through its Agencies, the EU has assumed regulative,
informative, coordinating and decision-making duties on a specialized
level (e.g. the European
Securities and Market Authorities (ESMA)). Because
of this development, it can’t be categorically stated that
Administrative Law is always
national law, but the
classical definition must be broadened to include new, supranational
forms of government. Fact remains that Administrative Law is always
to be linked to the executive powers, which, in the context of the
EU, would mainly be the European Commission.
d.
Administrative
procedural forms
The
Administration acts mainly
through what is, unimaginatively, called the administrative act. This
can
be
defined as
an action by
the Administration carrying
out the intention of the legislature and
public policy
in a tangible manner. As such, the administrative act plays out both
in the internal and external spheres of the Administration, but is
always intended to unfold its validity externally onto
its subjects.
2.
Terminology
The
historical circumstances of the creation of the terminology at hand,
Eingriffsverwaltung and
Leistungsverwaltung, are
not to be forgotten. From the middle of the nineteenth century, the
consolidation of power in the newly created German Empire brought
forth the creation of a central Administration and numerous
administrative entities throughout the country. As a reflection of
the Prussian military tradition, the character of the Administration
was overwhelmingly repressive. Meanwhile, the rise of
Social-Democracy brought workers rights to the forefront of the
political discussion. As a result, Chancellor Otto von Bismarck,
trying to appease the opposition, implemented a progressive welfare
program. Through this new legislation, the German Empire became a
modern Social State (Sozialstaat), granting social benefits
and universal health insurance. This means that while the traditional
Administration was a repressive one, it developed into an organ which
provided for and benefited the People. The division between the types
of administrations is thus not only in relation to their functions,
but also describes the historical development in continental Europe.
Eingriffsverwaltung
and Leistungsverwaltung are two prime examples of the infamous
German habit of combining words. Verwaltung means as much as
Administration, while Eingriff is German for
intervention/invasion and Leistung signifies both achievement
and benefit (the latter being more contextually fitting). Next to the
Eingriffs- and
Leistungsverwaltung,
the
Bedarfsverwaltung (Requisition
Administration) and the fiskalische Verwaltung (Fiscal
Administration) have also
been postulated, which are
not going
to be further examined here. It
is important to note that these terms are descriptive of the
Administration’s actions and are in no way positively laid down in
legal texts.
a.
Eingriffsverwaltung
The Eingriffsverwaltung or
intervening Administration, describes
actions of the Administration which intervene into a citizen’s
sphere of rights and thus prove a burden and establish
obligations for individuals.
It mainly serves purposes of public interest, such as the safety of
citizens. One of the
organs
entrusted with this task is the police, which protects citizens, but
does so by restricting their freedoms and intervening in the
exercise of their fundamental
rights. The
Eingriffsverwaltung also
includes other regulating mechanisms, such as taxation authorities
for the purpose of finance
requirements in the public sector.
The
Eingriffsverwaltung is
not boundless, it has to respect the confines it has been put under
by subjective individual rights originating both from fundamental
rights and administrative statutes.
The state then has the duty
to not only enable the individual to realize these rights but also to
not violate them through its actions. Subjective rights can also stem
from laws pertaining to Administrative Law, as
has also been reasoned above. This
all pertains to the relationship between the state and individuals.
The repressive nature of the
Eingriffsverwaltung causes
higher requirements and restraints from the state, but as always, a
concrete balance of interests has to be achieved. The legitimate
public interest has to be put into relation with individual
subjective rights.
b.
Leistungsverwaltung
The Leistungsverwaltung or
benefiting Administration, on
the other hand, is characterized by an Administration that was
conceived to satisfy the citizen’s
needs, may they be of a social, cultural or financial nature. An
example for this kind of Administration are social benefits intended
to guarantee a minimum standard of life for vulnerable citizens and
is an expression of the principles of the welfare state.
Some
include the Lenkungsverwaltung (steering
Administration) in this category, as this kind of Administration is
intended to advance a wide array of projects trough subsidies and the
like and only indirectly
benefits the individual person.
The two are then, in fact, different, as the Leistungsverwaltung
focuses on the individual and
their
needs.
c.
Combined Administrative
Acts
Combinations
of these two types of Administrations are possible. As von Laubinger
described, there is such a thing as Verwaltungsakte mit
Doppelwirkung (Adminsitrative
Acts with double action),
meaning Administrative Acts that not only benefit the recipient in
the way of a Leistungsverwaltung,
but also puts obligations upon him, characteristic
of the Eingriffsverwaltung.
The
Administration thus acts in
two ways, benefiting one
person while burdening another.
d.
Relevance of the distinction
In countries outside of Germany, the terms Eingriffsverwaltung
and Leistungsverwaltung remain widely used, especially to
explain the historical development and to describe administrative
actions by their function. They are taught at introductory classes to
Administrative Law everywhere because of the easy way in which they
clearly and descriptively refer to complex issues.
The Eingriffsverwaltung and the Leistungsverwaltung also
remain relevant because of the way in which they describe the
subjects relation to the state, which is paralleled in the discussion
on fundamental rights. While fundamental rights are mostly spoken of
in the context state vs. citizen and state organ vs. state organ, as
mentioned above, the same can be said in the context of the
Administration. Subjective rights of either sort can be claimed in
both cases. The terminology proves itself worthy of its tradition
because it exemplifies in itself the claim of Administrative Law
being specific Constitutional Law.
Finally, the terminology is brought forth in the context of the
privatization of the Administration, an alarming neoliberal trend in
Western States. Hospitals, schools and even prisons are being
privatized, which means that private actors who are only looking for
profit are being given competences usually reserved for the state.
One such competence would be the intervening competence, as it is
normallyy performed by the Eingriffsverwaltung. As explained
above, the Eingriffsverwaltung intervenes in subjective rights
only then when it is enabled by law or public policy and is therefore
constrained. As an Administration that is repressive in nature, the
issue of privatization is especially sensitive. The absolute limit of
acts by state entities are fundamental rights, which guarantee the
minimum of protection. This poses the question of how a private actor
can intervene in and restrict a citizens fundamental rights and how a
privatization which enables these actions could possibly be
legitimate. This remains, albeit controversially discussed, sadly,
unanswered.
Bibliography
Disclaimer: some sources used were read in their original language
and then translated into English
BEKKE, Hans A.G.M. / VAN DER MEER,
Frits M., Civil Service Systems in Western Europe, Edward
Elgar Publishing, Cheltenham 2000.
CASSESE, Sabino, New paths for administrative law: A manifesto,
International Journal of Constitutional Law, Volume
10, Issue 3, Oxford University Press, Oxford.
CRAIG, Paul, EU Administrative Law,
2nd.
Edition, Oxford University Press, Oxford 2012.
STEINBEIS, Maximilian, Die Grenzen der Privatisierung staatlichen
Zwangs, Verfassungsblog – On
matters constitutional, 11.08.2017.
MAYER, Otto, Deutsches
Verwaltungsrecht, 3rd.
Edition, Dunker und Humblot,
Leipzig 1924.
VON WESTPHALEN, Raban, Deutsches Regierungssystem,
Oldenbourg Wissenschaftsverlag GmbH, Munich 2001.
Tatiana Schreiber (Erasmus)
Student nr.: 57637
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