The duration of litigation for the enforcement action (Verpflichtungsklage) and the application for an injunction (Allgemeine Leistungsklage) in the Federal Republic of Germany

Abstract

An administrative case involving a dispute in relation to an administrative agency or a State official neglecting official duties required by the law to be performed or performing such duties with unreasonable delay under Section 9 paragraph one (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999) may be filed within ninety days as from the date the cause of action is known or should have been known, or within the expiration of ninety days as from the day the plaintiff made a request in writing to an administrative agency or a State official for the performance of duties under the law and has not received a written explanation from the administrative agency or State official or has received a written explanation but such explanation is considered by the plaintiff to be unreasonable, under Section 49 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). It is questionable whether that the plaintiff has to make a request in writing to an administrative agency or a State official every time for the performance of duties under the law. The concept of this written request to an administrative agency or a State official derived from the concept of subjective public right in German public law. Under the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung – VwGO) plaintiff shall bring 2 types of actions or applications comparable to cases under Section 9 paragraph one (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999), namely enforcement action (Verpflichtungsklage) and application for an injunction (Allgemeine Leistungsklage). By enforcement action, the plaintiff shall request sentencing to issue a rejected administrative act (Versagungsgegenklage) or omitted administrative act (Untätigkeitsklage). The rejection of issuing an administrative act is also an administrative act itself, therefore the enforcement action, which request sentencing to issue a rejected administrative act, requires an appeal of objection to be lodged in writing within one month after the rejecting administrative act has been announced under Section 58, Section 70 and Section 74 of the Code of Administrative Court Procedure. On the other hand, when an administrative agency or a State official omit issuing of an administrative act, the plaintiff shall lodge an enforcement action at any time in good faith after the expiry of three months after the lodging of the application to carry out the administrative act under Section 75 of the Code of Administrative Court Procedure. In the same manner of the aforementioned enforcement action, which request sentencing to issue an omitted administrative act, the plaintiff shall lodge an application for an injunction at any time in good faith.