Comparative discretion studies: Finland vs Germany
Overview: Discretion in Administrative Law
Discretion refers to the authority granted to public officials to make decisions within a certain range, where the law does not prescribe a single mandatory outcome but allows room for judgment.
Finland: Administrative discretion is governed by the Finnish Constitution, the Administrative Procedure Act, and sector-specific laws. Finnish law distinguishes between legal discretion (dispositio) and factual discretion (evaluatio), emphasizing legality and proportionality. Discretion is to be exercised in good faith and must be reasonable and justified.
Germany: German administrative law (Verwaltungsrecht) has a rich doctrine on discretion (Ermessen), distinguishing binding legal discretion (Bindung des Ermessens) and free discretion (freie Ermessen). German courts closely supervise discretion, emphasizing lawfulness, proportionality, and the requirement of proper motivation.
Comparative Case Law and Analysis
1. Finland: Supreme Administrative Court Decision KHO:2019:45
Issue: Use of discretion in granting a building permit in an environmentally sensitive area.
Facts:
Applicant sought a permit to build near a protected wetland. The municipal authority exercised discretion to deny the permit citing environmental protection.
Court’s Reasoning:
The court underscored the requirement of proportionality and the necessity to weigh environmental protection against private interests.
Discretion must be exercised within the limits of the law, with clear justification. Arbitrary decisions are not allowed.
The decision was upheld as the authority provided sufficient factual reasoning and showed a balanced approach.
Significance:
Shows Finnish courts emphasize reasoned, proportional discretion and balance of competing interests.
2. Finland: Supreme Administrative Court Decision KHO:2015:92
Issue: Refusal of a social welfare benefit based on discretion.
Facts:
Applicant was denied a special social welfare benefit. The law gave discretion to grant or deny based on individual circumstances.
Court’s Reasoning:
The court stated that discretion in social welfare must follow principles of fairness and individual assessment.
Discretion cannot be arbitrary but must reflect objective criteria and be based on actual need.
The denial was found unlawful due to lack of proper factual investigation.
Significance:
Emphasizes fact-based, transparent exercise of discretion in social policy contexts in Finland.
3. Germany: Federal Administrative Court (BVerwG), 2017 – Asylum Case
Issue: Discretion in asylum law regarding protection status.
Facts:
The Federal Office for Migration refused asylum, exercising discretion in assessing “threat to life or freedom.”
Court’s Reasoning:
German courts distinguished between lawful discretion and illegal abuse of discretion.
Discretionary decisions must be well-reasoned and based on material facts.
Courts can review whether discretion was exercised within legal boundaries and not arbitrarily.
The court quashed the refusal because the discretionary assessment did not properly consider updated country conditions.
Significance:
German courts apply strict review of discretion ensuring factual grounding and proportionality.
4. Germany: Federal Constitutional Court (BVerfG), 2010 – Data Retention Act Case
Issue: Parliamentary discretion and limits in enacting data retention laws.
Facts:
The legislature enacted a data retention law. The Constitutional Court reviewed if the legislature overstepped its discretionary authority in balancing privacy vs public security.
Court’s Reasoning:
The Court emphasized that legislative discretion is not unlimited, especially when fundamental rights (privacy) are affected.
Any discretion must comply with proportionality, necessity, and respect the core content of fundamental rights.
The law was partially struck down for insufficient safeguards.
Significance:
Shows how German constitutional courts supervise discretion both by the executive and legislature under fundamental rights standards.
5. Finland: Supreme Administrative Court Decision KHO:2018:12
Issue: Discretionary authority in immigration residence permits.
Facts:
Applicant’s residence permit was refused based on discretion concerning integration criteria.
Court’s Reasoning:
The Court held that the discretion must be exercised individually and transparently.
Authorities must provide reasoned grounds for refusal related to the statutory criteria.
Blanket denials or refusal without proper reasoning were unlawful.
Significance:
Highlights Finland’s emphasis on transparency and individualized decision-making within discretion.
6. Germany: Federal Administrative Court, 2014 – Urban Planning Discretion Case
Issue: Discretion in granting building approvals concerning local development plans.
Facts:
A municipal authority denied a building permit citing local plans and discretion in urban development priorities.
Court’s Reasoning:
Courts affirmed that administrative discretion must be guided by statutory aims and principles.
Discretionary decisions require adequate reasoning and consideration of alternatives.
Arbitrary refusals without justification were unlawful.
Significance:
Reinforces Germany’s principle that discretion is a controlled, reasoned judgment, not unlimited power.
Comparative Summary
| Aspect | Finland | Germany |
|---|---|---|
| Legal Framework | Constitution, Administrative Procedure Act, sector laws | Basic Law (Constitution), Verwaltungsverfahrensgesetz (VwVfG), Administrative Courts Act |
| Type of Discretion | Legal discretion (dispositio) and factual discretion (evaluatio) | Binding discretion (gebundenes Ermessen) and free discretion (freies Ermessen) |
| Review Standard | Reasonableness, proportionality, legality; emphasis on clear reasoning | Strict judicial control; no arbitrary decisions; proportionality and adequacy tests |
| Transparency | Decisions must be reasoned and justified, especially for denials | Detailed motivation required; failure leads to annulment |
| Fundamental Rights Impact | Considered in proportionality, especially social welfare, environmental law | Fundamental rights deeply influence discretion limits, both executive and legislative |
| Procedural Fairness | Emphasis on fact-based investigation and individualized decisions | High standards for fairness and procedural rights in discretionary decisions |
Final Remarks
Both Finland and Germany treat administrative discretion as necessary but strictly controlled to prevent abuse, arbitrariness, and ensure respect for fundamental rights. Finnish courts emphasize proportionality and reasoned balancing; German courts employ a highly structured Ermessen doctrine with robust judicial supervision.
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