The power of Administrative Courts to adjudicate cases involving proceedings to review the validity of a by-law or a legal provision (Normenkontrollverfahren) in German legal system.

Abstract

This article was written as a part of a comprehensive research project aimed at studying the scope of the Thai Administrative Courts’ power to issue a decree revoking
a by-law or an order in any dispute under Section 9 paragraph one of the Act on the Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). The research project focuses on the legal principles that the Courts can apply to determine whether the effect of the decree revoking a by-law or an order should be retrospective, non-retrospective, or prospective to any specific time, and whether the Courts should prescribe any additional relevant conditions. Therefore, the primary emphasis of this research project is on interpreting the legal term "justice in a particular case" (ความเป็นธรรมแห่งกรณี) as stipulated in Section 72 paragraph two of the same Act.

In order to identify these legal principles, this article investigates how German Administrative Courts try and adjudicate cases involving proceedings to review the validity of a by-law or a legal provision (Normenkontrollverfahren). The preliminary study found that various scholars have asserted the possibility of a broader interpretation of Section 47 of the German Code of Administrative Court Procedure, through which the Administrative Courts could declare the invalidity of a by-law or a legal provision at any specific time. Moreover, the Federal Administrative Court (Bundesverwaltungsgericht) confirmed this possibility in the Judgment of 9 June 2010 and maintained that the Administrative Courts could declare the invalidity of a by-law or a legal provision at any specific time only if a state of emergency (Notstand) is present. Despite these presuppositions, the Administrative Courts—unless otherwise provided by any other specific laws—generally tend to restrict themselves by declaring any relevant by-law or legal provision null and void at the time in which the by-law or legal provision was published (ex tunc).

However, the High Administrative Court of Bavaria (VGH München) recently stated in the Decision of 27 April 2020 that one of the states of emergency (Notstand) which could allow the Administrative Courts to declare the invalidity of a by-law or a legal provision at any specific time was the necessity to protect one’s life and limb resulting from a pandemic.
As this decision dealt with proceedings to issue a temporary injunction, it remains to be studied how the Administrative Courts would apply this principle in regular proceedings.
For a further investigation of this issue, it is essential to conduct a comparative study on German Constitutional Courts’ power to declare the invalidity of a law.