discretion
noun · Ermessen
Ermessen only where the statute leaves the authority a choice about what to do, § 40 VwVfG, and there the court checks the choice for error instead of remaking it, § 114 Satz 1 VwGO. Where the open wording sits in the conditions instead, German law calls it an unbestimmter Rechtsbegriff and the court reviews it in full as a rule, so the wrong word states the wrong standard of review.
Which translation, when
Why
English discretion is one word for the whole space a decision-maker has, and German administrative law splits that space in two, with different consequences on each side. Where the open wording sits in the conditions of the provision, in terms such as reliability or public interest, it is an unbestimmter Rechtsbegriff, and the court interprets and applies it itself, leaving the authority a Beurteilungsspielraum only in narrow fields such as examination marks. Where the choice sits in the legal consequence, in a may rather than a must, it is Ermessen: the authority decides whether to act at all and which measure to take, bound by the purpose of the authorisation and the limits of the statute, § 40 VwVfG, and the court then asks only whether those limits were exceeded or the power used for a purpose the authorisation does not serve, § 114 Satz 1 VwGO. The division decides what the client can actually ask for. Against a bound decision he claims the act itself and the court can order it once the case is ripe, § 113 Abs. 5 Satz 1 VwGO; against a discretionary one he will usually get no more than a fresh decision taken on the court’s legal view, § 113 Abs. 5 Satz 2 VwGO. Two further points an English reader does not expect: the authority may supplement its reasoning during the court proceedings, § 114 Satz 2 VwGO, and its own settled practice binds it through the equality guarantee of Art. 3 Abs. 1 GG, so a departure from it needs explaining.
Typical mistakes
- Writing Ermessen for an open term in the conditions of a provision states the wrong standard of review, because an unbestimmter Rechtsbegriff is reviewed in full while Ermessen is checked only for error, § 114 Satz 1 VwGO.
- Ermessen is not freedom: § 40 VwVfG ties it to the purpose of the authorisation and the statutory limits, and settled administrative practice binds the authority through Art. 3 Abs. 1 GG, so advice treating a discretionary decision as unassailable understates the client’s position.
- Where the decision is gebunden, the client has a claim to the act and not merely to a proper exercise of choice, § 113 Abs. 5 Satz 1 VwGO, so calling it discretion costs him the stronger remedy.
What matters
Refusal letters that speak of the authority’s discretion deserve a second reading before they are translated: where the open wording sits in the conditions, the court decides the question itself and the client stands better than the letter suggests. Ermessen in the wrong place turns a claim to the permit, § 113 Abs. 5 Satz 1 VwGO, into a claim for nothing more than a fresh decision.
What the machine misses
Discretion arrives as Ermessen in machine output wherever the open wording sits, and the German term is right on only one side of a line the English word does not draw. Ermessen belongs to the consequence side of a provision, § 40 VwVfG, while open wording in the conditions is an unbestimmter Rechtsbegriff the court reviews in full. A translated sentence conceding the authority discretion over whether the statutory conditions are met has given away a standard of review, § 114 Satz 1 VwGO, that German law never granted it.
Examples
| the authority has a discretion | die Behörde hat Ermessen |
| to exercise discretion properly | das Ermessen pflichtgemäß ausüben |
| an error in the exercise of discretion | ein Ermessensfehler |
| the decision is not discretionary | die Entscheidung ist gebunden |
More notes on these sections
judicial review Anfechtungsklage