Year:    2013

Author:    Brüning, Christoph

Die Verwaltung, Vol. 46 (2013), Iss. 3 : pp. 413–440

Abstract

System for judicial review of local council charges

Raising charges which are not taxes requires a statutory basis. As a result, judicial review of the administrative decisions demanding these charges necessarily comprises a review of Parliament's discretion exercised when making such statutes. There is even more with regard to charges of local councils bearing in mind that Administrative Courts themselves have jurisdiction to quash local bye-laws forming the basis for such charges. Additionally, state legislation can allow for judicial review of local councils' bye-laws that are themselves independent from a given administrative decision. Points of reference for judicial review of such bye-laws are calculation and rate of the charge, relevant costs, as well as the system of distributing the costs. Different views exist regarding the relevance of calculating the charges. This has consequences for the significance of errors when assessing the legality of raising charges as well as the possibility to remedy such errors in an administrative procedure. Partly due to statutes themselves and partly due to subsequent case law, the provisions addressing the question of relevant costs lose some of their significance, because room for error is accepted with regard to a deviation of the calculation from the actual level of cost coverage. Statutory requirements for the distribution of costs are open-textured. Accordingly, judicial review of an administrative decision raising a charge is restricted to evident errors in that respect. Finally, any bye-law quashed by court can be replaced retrospectively by the local council. If that happens, the administrative decision in question cannot be nullified by the court anymore. However, in some states, legislation protects the liable person against such a disadvantage. All in all, there is a sophisticated system for reviewing local council charges. The system accommodates the distinctive features of judicial review of statutes either in connection with a review of an administrative decision or even independent of it.