Year:    2017

Author:    Schröder, Meinhard

Die Verwaltung, Vol. 50 (2017), Iss. 3 : pp. 309–337

Abstract

Private Rather than Administrative Implementation of Public Law?

In the past years, public authorities appear to have reduced their efforts to enforce public law. They rely instead on different forms of “private enforcement”. Public enforcement is based on the execution of administrative acts, which can be issued in order to stop any breach of law, in accordance with a wide understanding of “public security”. However, in so far as a breach of objective law infringes “private rights”, public enforcement may be subsidiary or at least dispensable. On the other hand, the violation of subjective public rights may lead to a right to public enforcement. A prerequisite of public enforcement is to obtain information about a breach of public law.

Private enforcement, on the other hand, is based on granting certain rights to persons who are expected to enforce them by filing suits against those who are in breach of public law. They are entitled to actions for injunction or to compensation for damages. These lawsuits are decided by civil courts, which have to apply public law. This may lead to an incoherent application of public law. As a means of improving the synchronization of public and private enforcement, the opinion of public authorities should be introduced into the civil procedures more often. Private enforcement appears particularly suitable in situations where public authorities have difficulties in obtaining information about a breach of public law. The reasonable combination of public and private enforcement does not lead to over-enforcement but rather appears appropriate.