Opposition procedure (optional); filing an opposition
The appeal procedure allows for an internal administrative review of the initial decision in some areas of law.
The opposition procedure under the Administrative Court Code (VwGO)
The objection procedure according to the Administrative Court Code (VwGO) enables an internal administrative review of the initial decision. The following remarks apply only to the opposition procedure as defined by the VwGO. They do not apply to legal remedies regulated in other laws, such as the objection procedure under the Social Court Act as a preliminary procedure to an action before the Social Court.
Limited scope of application in Bavaria
According to Art. 12 of the Law on the Execution of the Administrative Court Code (AGVwGO), the appeal procedure against decisions of the authorities of the Free State of Bavaria, the Bavarian municipalities, counties, districts and other legal persons under public law subject to the supervision of the Free State of Bavaria (Art. 12 Para. 3 Sentence 1 AGVwGO) has been abolished in many areas.
In some areas of law (see Art. 12 (1) sentence 1 nos. 1 to 6 AGVwGO), on the other hand, there is an optional objection procedure, which opens up a choice between filing an objection and bringing an action directly. Within the scope of application of Art. 12 AGVwGO, opposition proceedings exist only in the following areas:
- in the area of municipal tax law
- in the area of agricultural law including the law of agricultural subsidies as well as in the area of the law of forestry subsidies and hunting law shooting plan procedures,
- in the area of school law, including the law of school financing and school transportation,
- in the areas of training and study subsidy law, home law, child and youth welfare law, child, youth and family support, war victim welfare law, severely disabled persons law, maintenance advance law, housing subsidy law, broadcasting tax law and in the context of subsidies under the European Social Fund (ESF subsidy), insofar as administrative recourse is available in each case,
- in matters relating to civil servants, with the exception of disciplinary law,
- in personal examination decisions.
Caution: Insofar as other (federal or state) laws and legal ordinances contain regulations on preliminary proceedings that deviate from Art. 12 AGVwGO (e.g. Section 141 (1) of the Land Consolidation Act; Sections 336 to 338 of the Equalization of Burdens Act; Section 6 (1) of the Ordinance on Reallocation Committees and Preliminary Proceedings in Reallocation Matters), these shall take precedence as special regulations (Art. 12 (3) sentence 2 AGVwGO).
Art. 12 AGVwGO doesnot apply to administrative acts issued by federal authorities (e.g. Federal Office for Migration and Refugees), even if they have their registered office or a branch office in Bavaria.
Filing of the objection; form and competent authority
The objection must be filed in writing, in electronic form or in writing (subject to a fee) with the original authority (the authority that issued the decision to be contested, e.g. district office or city). In addition, the objection can also be filed with the objection authority. An appeal filed by hand-signed fax or by computer fax with scanned signature complies with the written form requirement. An oral or telephone objection is inadmissible. If the recipient has opened a corresponding access for the transmission of electronic documents, an objection may also be filed in electronic form. Pursuant to Section 70 VwGO in conjunction with. § Section 3a (2) VwVfG, an objection may be filed by the following electronic means:
- Transmission of a document with a qualified electronic signature,
- sending a (simply or qualified) signed electronic document to the authority using the method of dispatch in accordance with Section 5 (5) of the De-Mail Act,
- direct submission of the declaration in an electronic form if this is provided by the authority in an input device or via publicly accessible networks (in the second case, only when using an electronic proof of identity pursuant to Section 18 of the Personal ID Act, Section 12 of the eID Card Act or Section 78 (5) of the Residence Act).
In contrast, it is not possible to file a legally effective objection by (simple) e-mail.
The objection should be sufficiently substantiated. Only if the authority knows why you do not agree with the challenged decision can it carry out a comprehensive review.
The redress procedure
The remedy procedure (Section 72 VwGO) is part of the opposition procedure. It is carried out by the original authority, which thus has the opportunity to comprehensively review the decision itself. Only then is the matter submitted to the opposition authority.
Does a contested decision have to be complied with despite an objection? - Suspensive effect
Pursuant to Section 80 (1) VwGO, the objection generally has a suspensive effect, i.e. the contested administrative act does not have to be complied with initially. However, this principle has been restricted by a large number of statutory regulations. For example, according to Section 80 (2) Sentence 1 VwGO, the suspensive effect does not apply by law in the case of demands for public charges (such as contributions and fees) and costs and, above all, in other cases prescribed by various laws. Furthermore, the objection does not have a suspensive effect if immediate execution is specifically ordered by the authority (Section 80 (2) sentence 1 no. 4 VwGO).
Administrative acts usually contain a reference to the suspensive effect of the objection, if this is possible.
The objection pursuant to Section 70 (1) VwGO must be lodged within one month of notification of the decision.
If the notice of appeal is missing or incorrect, the period for lodging an objection shall be one year (Section 70 (2) in conjunction with Section 58 (2) VwGO).
The objection period shall be determined by applying sections 187 et seq. of the German Civil Code (BGB) mutatis mutandis.
If the last day of the objection period falls on a Saturday, Sunday or public holiday, the period shall not end until the following working day at midnight (Section 193 of the BGB mutatis mutandis).
The opposition proceedings are generally subject to costs.
Who has to bear the costs (fees and expenses) depends on the extent to which the opposition was successful (Art. 80 (1) Bavarian Administrative Procedure Act; Section 155 (1) VwGO analogously).
The regulations on the amount of the fees can be found in the Cost Act (KG), in particular in Art. 9 KG.
Expenses and other expenses only count as costs of the proceedings insofar as they were necessary. Lawyer's fees can only be included if it was necessary to hire a lawyer in the first place (for details, see Art. 80 (2) and (3) of the Bavarian Administrative Procedure Act).
If the objection does not have a suspensive effect, an application for suspension of execution can be filed with the original authority or the objection authority in accordance with Section 80 (4) VwGO. Instead, an application for an order or restoration of the suspensive effect of the objection can be filed with the competent Bavarian Administrative Court pursuant to Section 80 (5) VwGO.
Caution: If the request concerns public charges and costs (Section 80 (2) Sentence 1 No. 1 VwGO), an application to the court is generally only admissible if the authority has previously rejected an application for suspension of execution (Section 80 (6) VwGO).
Links to more information
Responsible for editing: Bayerisches Staatsministerium des Innern, für Sport und Integration
- Online transactions, Bavaria-wide
- Online transactions, locally limited
- Prefillable Form, Bavaria-wide
- Legal bases, Bavaria-wide
- Legal bases, locally limited
- Fees, Bavaria-wide
- Fees, locally limited