Search in ‘Judgments and decisions’


Judgment of 01 June 2017 - BVerwG 9 C 2.16 (uploaded on 07 March 2018)

Formally unlawful bicycle track construction in a special conservation area under the Habitats Directive

Headnotes

1. The right of an association to bring legal proceedings in the interest of the general public (section 2 (1) in connection with section 1 (1) of the Environmental Appeals Act (UmwRG, Umwelt-Rechtsbehelfsgesetz)) includes the right to institute an action for administrative intervention against a project built and operated without a decision on the required permission.

2. As a general rule, the discretion of the nature conservation authority to prevent the use of a bicycle track built without the required planning approval procedure (Planfeststellungsverfahren) pursuant to section 3 (2) of the Federal Nature Conservation Act (BNatSchG, Bundesnaturschutzgesetz), turns into a legal obligation where such use reasonably gives rise to concrete fears over considerable adverse effects in excess of the construction-related disturbance until completion of the subsequent planning approval procedure.

Judgment of 14 December 2016 - BVerwG 6 A 9.14 (uploaded on 07 February 2018)

Headnote

A legal relationship establishable within the meaning of section 43 (1) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung) does not exist, even taking into account the guarantee of the legal protection of rights of article 19 (4) first sentence of the Basic Law (GG, Grundgesetz), when a possible encroachment on the basic right deriving from article 10 of the Basic Law in the context of the strategic surveillance of telecommunications has been removed immediately and without consequence and therefore can no longer be established (following the judgment of 28 May 2014 - 6 A 1.13 – Rulings of the Federal Administrative Court 149, 359).

No restriction of examination of asylum applications if proceedings in other countries are not final

Headnotes

1. A refusal to conduct a further asylum procedure on subsequent and secondary applications, which under current law is rendered as an inadmissibility decision under section 29 (1) no. 5 of the Asylum Act (AsylG, Asylgesetz), is to be contested by way of an action for annulment (further evolution from Federal Administrative Court judgment of 10 February 1998 - 9 C 28.97 - Rulings of the Federal Administrative Court 106, 171).

2. Under section 71a (1) of the Asylum Act, in order for a secondary application for asylum to be denied as inadmissible without examining its substance, in the absence of new arguments, an asylum procedure in a safe third country must already have reached an unsuccessful conclusion.

3. An asylum procedure that was in progress in another EU Member State, and that was discontinued without an examination of its substance because the applicant moved away, was not concluded unsuccessfully in this sense if, according to the rules of that country’s legal system, the procedure can be resumed in a way that ensures a full examination of the substance of the application.

Judgment of 28 April 2016 - BVerwG 4 A 2.15 (uploaded on 24 October 2017)

Headnotes

1. Section 49 of the Administrative Procedure Act (VwVfG, Verwaltungsverfahrensgesetz) also applies to planning approval decisions under aviation law (luftverkehrsrechtliche Planfeststellungsbeschlüsse). Third parties may demand that such an act be revoked, or that a discretionary decision be taken in its regard, only if the obligations as to protection stipulated by section 75 (2) second sentence of the Administrative Procedure Act do not suffice to remedy the situation.

2. A modified assessment of the given facts and circumstances may constitute a change in the factual situation in the sense of section 49 (2) first sentence no. 3 of the Administrative Procedure Act. Individual opinions that thus far have not found general acceptance in the scientific community are not a sufficient basis for doing so.

Judgment of 27 April 2016 - BVerwG 1 C 24.15 (uploaded on 09 August 2016)

Headnote

If a Member State is responsible for carrying out an asylum procedure under the relevant terms of the Dublin Regulations, an applicant may in any event invoke that Member State’s responsibility in court proceedings against a rejection of his or her application for asylum as inadmissible under section 27a Asylum Act if it has not been positively established that another Member State (which does not have responsibility) is willing to take charge of the applicant or take him or her back.

Judgment of 07 April 2016 - BVerwG 4 C 1.15 (uploaded on 24 October 2017)

Construction ban in the case of interference with air traffic control services (ATCS) facilities by building structures

Headnotes

The decision incumbent on the Federal Supervisory Authority for Air Navigation Services (Bundesaufsichtsamt für Flugsicherung) under section 18a (1) second sentence of the German Aviation Act (LuftVG, Luftverkehrsgesetz) concerning whether the erection of building structures may interfere with air traffic control services facilities is not an administrative act.

A construction ban under section 18a (1) of the German Aviation Act is not dependent on certainty that there is interference with air traffic control services facilities; the possibility of interference is sufficient. This possibility exists if the relevant assumptions in the air traffic control services operator’s expert opinion and the decision of the the Federal Supervisory Authority for Air Navigation Services based thereon meet scientific standards and their basic assumptions, methodology and conclusions are not called into question by opposing scientific standpoints, at least not in substance.

Judgment of 06 April 2016 - BVerwG 3 C 10.14 (uploaded on 24 October 2017)

Permission for self-cultivation of cannabis for therapeutic purposes  

Headnotes

1. Self-cultivation of cannabis for therapeutic purposes is in the public interest within the meaning of section 3 (2) of the Narcotic Drugs Act (BtMG, Betäubungsmittelgesetz) if the applicant suffers from a severe disease and there is no equally effective and affordable drug available to him to treat his disease.

2. If no compelling grounds for refusal according to section 5 of the Narcotic Drugs Act exist in such a case, it is legally mandatory to make use of the discretion provided under section 3 (2) of the Narcotic Drugs Act by granting permission on the grounds of the protection of physical integrity required by article 2 (2) first sentence of the Basic Law.

Judgment of 06 April 2016 - BVerwG 3 C 10.15 (uploaded on 24 October 2017)

Headnote

Traffic signs for stationary traffic have legal effect for every road user affected by the regulation, regardless of whether the road user actually perceives the traffic sign or not, if the signs are placed or mounted in such a manner that an average motorist exercising due care in accordance with section 1 of the Road Traffic Regulations (Straßenverkehrsordnung) and in undisturbed visibility conditions can easily see while driving or by simply looking around upon leaving the vehicle that a requirement or prohibition has been made public by means of traffic signs. The motorist is only obliged to make a closer inspection if there is a specific reason to do so under the particular circumstances of the individual case.

Judgment of 23 March 2016 - BVerwG 10 C 4.15 (uploaded on 24 October 2017)

Headnotes

1. Chambers of industry and commerce are entitled to unite in a private-law umbrella association in order to jointly pursue the overall interests of their member businesses on a supra-regional level. However they are not entitled to delegate the task of pursuing the overall interests of member businesses to the umbrella association. Even if the umbrella association fulfils joint tasks, each chamber remains responsible for making sure that the competence framework pursuant to section 1 (1) of the Law on the Provisional Legislative Regulation of Chambers of Industry and Commerce (IHKG, Gesetz zur vorläufigen Regelung des Rechts der Industrie- und Handelskammern) is not exceeded.

2. Pursuant to article 2 (1) of the Basic Law (GG, Grundgesetz) a compulsory member of a chamber is entitled to demand its chamber’s withdrawal from the umbrella association if the latter fulfils tasks outside of the chamber’s legal competences. It is sufficient that the association exceeds the chambers’ competence framework with factual activities unless such a transgression is an isolated case atypical for the activities of the association. There has to be a concrete danger that the association will again become active outside of chamber competences.

Decision of 25 February 2016 - BVerwG 1 C 28.14 (uploaded on 24 October 2017)

Responsibility for selection under data protection law in multi-tiered provider relationships (request for a preliminary ruling)

Headnotes

A preliminary ruling of the Court of Justice of the European Union (hereinafter: ECJ) is requested on the following questions in accordance with article 267 TFEU.

1. Is article 2 (d) of Directive 95/46/EC […] to be interpreted as definitively and exhaustively defining the liability and responsibility for data protection violations, or does scope remain, under the “suitable measures” pursuant to article 24 of Directive 95/46/EC and the “effective powers of intervention” pursuant to the second indent of article 28 (3) of Directive 95/46/EC, in multi-tiered information provider relationships for responsibility of a body that does not control the data processing within the meaning of article 2 (d) of Directive 95/46/EC when it chooses the operator of its information offering?

2. Does it follow a contrario from the obligation of Member States under article 17 (2) of Directive 95/46/EC to stipulate, in cases where data processing is carried out on the controller’s behalf, that the controller “must … choose a processor providing sufficient guarantees in respect of the technical security measures and organizational measures governing the processing to be carried out”, that, where there are other user relationships not linked to data processing on the controller’s behalf within the meaning of article 2 (e) of Directive 95/46/EC, there is no obligation to make a careful choice and no such obligation can be derived from national law?

3. In cases in which a parent company based outside the European Union has legally independent establishments (subsidiaries) in various Member States, is the supervisory authority of a Member State (in this case, Germany) entitled under article 4 and article 28 (6) of Directive 95/46/EC to exercise the powers conferred under article 28 (3) of Directive 95/46/EC against the establishment located in its territory even when this establishment is solely responsible for promoting the sale of advertising and other marketing measures aimed at the inhabitants of this Member State, whereas the independent establishment (subsidiary) located in another Member State (in this case, Ireland) is exclusively responsible under the group’s internal division of tasks for collecting and processing personal data throughout the entire territory of the European Union and hence in the other Member State as well (in this case, Germany), if decisions about data processing are in fact taken by the parent company?

4. Are article 4 (1) (a) and article 28 (3) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the controller has an establishment in the territory of one Member State (in this case, Ireland) and there is another, legally independent establishment in the territory of another Member State (in this case, Germany), whose responsibilities include the sale of advertising space and whose activity is aimed at the inhabitants of that State, the competent supervisory authority in this other Member State (in this case, Germany) may direct measures and orders implementing data protection legislation also against the other establishment (in this case, in Germany) not responsible for data processing under the group’s internal division of tasks and responsibilities, or are measures and orders only possible by the supervisory body of the Member State (in this case, Ireland) in whose territory the entity with internal responsibility within the group has its registered office?

5. Are article 4 (1) (a) and article 28 (3) and (6) of Directive 95/46/EC to be interpreted as meaning that, in cases in which the supervisory authority in one Member State (in this case, Germany) takes action against a person or entity in its territory pursuant to article 28 (3) of Directive 95/46/EC on the grounds of failing to exercise due care in choosing a third party involved in the data processing process (in this case, Facebook), because this third party is in violation of data protection legislation, the active supervisory authority (in this case, Germany) is bound by the appraisal of data protection legislation by the supervisory authority of the Member State in which the third party responsible for the data processing has its establishment (in this case, Ireland) meaning that it may not arrive at a different legal appraisal, or may the active supervisory authority (in this case, Germany) conduct its own examination of the lawfulness of the data processing by the third party established in another Member State (in this case, Ireland) as a preliminary issue prior to its own action?

6. Where the possibility of conducting an independent examination is available to the active supervisory authority (in this case, Germany): Is the second sentence of article 28 (6) of Directive 95/46/EC to be interpreted as meaning that this supervisory authority may exercise the effective powers of intervention conferred on it under article 28 (3) of Directive 95/46/EC against a person or entity established in its territory on the grounds of their joint responsibility for data protection violations by a third party established in another Member State only and not until it has first requested the supervisory authority in this other Member State (in this case, Ireland) to exercise its powers?

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FAQFrequently asked questions

  • What judgments or decisions of the Federal Administrative Court can I find on the website?

    You can find rulings of the Federal Administrative Court from January 2002 onwards on this website. Excluded are

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    • Determinations of costs
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    Rulings of the Federal Administrative Court passed before the year 2002 will gradually be added to the website.

    You will also find abbreviated versions of several rulings in English.

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    It is usually published several weeks, in some cases also several months, after the delivery of a judgment.

    The background of this is as follows: In general, the Federal Administrative Court passes a judgment after a hearing and a deliberation. At that point in time, there is a ruling, the operative part of the judgment (so-called Tenor), but the text of the reasons for the ruling is not available yet. The written reasons will only be drawn up, a vote on them will be taken by the Senate, and they will be signed after the passing. Then the judgment will be delivered to all parties involved in the proceedings, anonymised and published.

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