The concept of discretion in administrative law of Germany and its distinction from the judicial discretion

Abstract

The author gives a definition of discretion as a one of the key institutes in administrative law. Discretion is a legal conception, used in executive state bodies and courts. The executive body must have borderlines of discretion if it has power of discretion and this may be a matter to the lawsuit or administrative revision made by the same executive body or highest executive body. The highest body may have its own opinion or may give another point of view if there is no doubt of the legality of the impugned decision. In particular, it means that an independent review must be provided of the expediency of the executive body`s decision. This formalized the main problem, because administrative courts have a right only to verify legal aspects in the decisions of executive power but not the expediency of its decisions. As part of the process in the administrative court, verification of discretionary decisions is limited only to testing the existence of one of the types of marginal discrepancies, rather than checking whether an administrative act or refusal to publish or not issuing an administrative act is illegal. In the following, the author gives a detailed description of the types of discretion and what errors of discretion exist. In conclusion, the article demonstrates arguments in favor of the existence of discretion, as there are doubts about the susceptibility of decisions with discretion with respect to corruption. Refs 2.

Keywords:

court’s discretion, discretionary power, administrative act, principle of separation of powers (‘trias politica’), statute on administrative procedures, administrative procedural code, pretrial appeal, types of margin of appreciation