Coram iudice et in alto mari sumus in manu Dei ("Before the judge and on the high seas, we are in God's hands"). Historically, this phrase was used to describe the state's arbitrariness in judicial decisions. However, the complexity of the law means that the unpredictability of judicial decisions is still a widespread narrative today. This is precisely where good legal advice can counteract existing uncertainties and act as a breakwater in rough seas. This applies all the more when preparing an appeal, the chances of success of which can depend to a large extent on conscientious litigation in the first instance. This is also shown by the recent decision of the VGH Mannheim of 30 January 2025 - 12 S 1070/24.
The so-called subsequent submission of reasons in administrative court proceedings pursuant to Section 114 sentence 2 VwGO
Pursuant to Section 114 sentence 2 VwGO, an administrative authority may also supplement its discretionary considerations with regard to an administrative act in administrative court proceedings. In the present case, the Mannheim Administrative Court ruled on the requirements for the so-called subsequent submission of reasons in the case of an oral supplement during the administrative court proceedings.
Content requirements
In order to enable the affected party to effectively pursue legal action and the courts to review the legality of the administrative action, the authority must clearly and unambiguously state the "new" grounds with which it intends to uphold a previously issued decision and at the same time make it clear which of its previous considerations remain valid or become irrelevant (see BVerwG, judgement of 13 December 2011 - 1 C 14.10, para. 18). A mere assertion of new discretionary considerations is therefore not sufficient in the event of a subsequent change in the situation.
Formal requirements - written form or declaration for the record
The VGH's statements regarding the formal requirements for supplementing discretionary considerations are of great relevance. As a rule, this must - in accordance with the form of the original administrative act - be made in writing, whereby the written form is also satisfied by a declaration on the record of the court (see BVerwG, judgement of 25.01.1995 - 11 C 29.93, juris para. 12).
Although the addition of discretionary considerations must regularly be made in writing, the submission in the oral hearing is sufficient. In this case, the court should include this in the minutes of the hearing (see BVerwG, judgement of 13 September 2011 - 1 C 14.10, juris para. 18). It should be noted here that inclusion in the minutes of the hearing does not necessarily take place ex officio. The exact content of statements in general and thus also the addition of reasons is not an "essential part of the proceedings" within the meaning of Section 105 VwGO in conjunction with Section 160 para. 2 ZPO and is therefore not included in the minutes of the proceedings - without any action on the part of the court. (see Wöstmann, in: Saenger ZPO. 10th ed. 2023, Section 160, para. 3). Although the absence in the minutes of the other party cannot be used as evidence that discretionary considerations were not supplemented, it is questionable what consequences a formal error has in the event of non-inclusion in the court minutes. It is obvious that ambiguities regarding the content and scope of a supplement are at the expense of the authority (cf. BVerwG, judgement of 13 September 2011 - 1 C 14.10, juris para. 18). The idea of effective legal protection within the meaning of Art. 19 para. 4 GG also speaks in favour of this, as the absence of discretionary considerations can make subsequent legal protection more difficult.
Practical implications
In its ruling, the VGH Mannheim had to decide on an application for authorisation to appeal. In particular, the applicant must state the grounds for admission - such as serious doubts as to the correctness of the administrative court's decision, Section 124 para. 2 no. 1 VwGO.
This requires that, taking into account the aspects presented by the applicant, the correctness of the contested judgement requires further examination and that the success of the intended appeal is therefore possible according to the knowledge available in the admission procedure(BVerwG, decision of 10.03.2004 - 7 AV 4.03). The ground for admission therefore exists if a single fundamental legal principle or a significant finding of fact is called into question by the applicant with conclusive arguments(BVerfG, decision of 18 March 2022 - 2 BvR 1232/20 - para. 23).
In the present case, the procedural files did not contain any documentation on the addition of discretionary powers. A conclusive argument against the respective opinion of the administrative court is therefore only possible if the content of the decision, which the applicant criticises as erroneous, is referred to in the admission procedure of the appeal. If this is not done, the appeal is unfounded and will not be successful.
Specifically, this means for the conduct of proceedings in the first instance:
The oral addition of discretionary considerations during the administrative court proceedings is a "specific statement" within the meaning of Section 105 VwGO in conjunction with Section 160 para. 4 ZPO. This can and should be included in the minutes of the hearing by means of a corresponding application. The creation of reliable documentation considerably simplifies the presentation of the grounds for authorisation for the appeal based on this.
Conclusion
It is therefore worth pursuing the administrative court proceedings conscientiously in the first instance in order to counteract a later defeat on appeal at an early stage. The decision of the Mannheim Administrative Court does not give us any cause for concern about excessive forbearance - on the contrary, it reminds us to approach things with the necessary care. In this way, the harbour can be reached safely even in stormy seas.
Dr Fiete Kalscheuer Juri Schönau