No abstract
In its “Climate Protection Program 2030”, the German Federal Government has brought an instrument back to life which was last used after the German unification to speed up infrastructure development: the approval of traffic infrastructure projects by laws on measures rather than by plan approval decision. As a result of the faster expansion of rail and inland waterways, as much traffic as possible should be shifted from the road to these modes of transport. In preparation for these legislative steps, a study has been commissioned by the Federal Ministry of Transport, which has been reproduced in this volume. On the one hand, it analyses in detail the constitutional requirements under which such measures are permitted. On the other hand, it develops proposals for the distribution of tasks between the actors in a planning procedure concluding with a legislative act.
A process-oriented approach sees public administration as an interconnection of information, communications, interactions and decisions. It establishes the process organisation that shows the state ‘in action’ and complements the administrative and personnel side of public administration. While the term administrative processes can be understood as a generic term for this procedural side of the administration, according to the German understanding, procedures are processes with which the administration works towards citizens and companies and in which these face the administration with their own rights. Characteristic of these procedures vis-à-vis persons outside the administration is a high degree of juridification by administrative procedure law. The legal status of the citizen vis-à-vis the administration is very strong in Germany. In recent years, also influenced by New Public Management thought, great efforts have been made to optimise the procedural side of public administration. The chapter presents significant tools and approaches of this process thinking.
In the brief overview of the procedure for enacting an administrative act it is stated that in the German understanding the administrative procedure with its inherent control mode, goal orientation and role of the various institutions and bodies as well as persons involved in the intermediary role between constitutional requirements and administrative reality is not purely technical one. The authority decides ex officio about the opening of the procedure except a citizen applied for, it decides at its discretion except when it must act ex officio how to proceed. Its important principles named as informality, simplicity, expediency, speed, obligation t o cooperate and freedom of form. Special importance is attributed to the principle of officiality of the investigation of a given case. The relevance of circumstances arises from the relevant legal norms and – i case of – discretionary decisions. The extent of the proof and the burden of proof are also important for the scope of the official investigation principle. Authorities are obliged to grant the citizen a right to be heard in the administrative procedure and to influence the course and outcome of the procedure. It carries direct and indirect external impact, revealing the basic understanding of relations between the state and the individual derived from the constitution. Equal treatment of all citizens and material substantivity proves the rule of law and prohibits the abuse of power at the expense of the citizen.
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