1. First, it is important to remember the special position of lawyers within the German legal system. The first provision in federal law regulating the professional status of lawyers is Section 1 of the Federal Lawyers' Act (Bundesrechtsanwaltsordnung). This does not primarily regard lawyers as representatives of party interests, but as part of the general – i.e. state – administration of justice. The provision reads as follows: ‘Lawyers are independent organs of the administration of justice.’
2. This appropriation of lawyers for the purpose of optimally fulfilling the state's tasks of administering justice has both advantages and disadvantages. The obvious disadvantage is that the interests of the client can only ever be pursued within the framework of this state mandate. The advantages lie in the fact that the Executive accepts lawyers as the natural representatives of citizens' interests, even in internal administrative proceedings. In this context, it should also be remembered that all fully trained lawyers in Germany, whether judges, public prosecutors, civil servants or solicitors, have undergone the same training and passed the same exams. As a result, they interact with each other in a more collegial manner than in most other countries, whether they are of a Latin or Anglo-American tradition.
3. In addition, German public law, which still follows the tradition of Prussian administration with its drive for perfection, offers comprehensive internal review of administrative decisions in a formal legal procedure governed by rules of procedure at both state and federal level, which can be invoked by the citizen concerned and his or her lawyer. The state even reimburses citizens for the costs of a lawyer if the internal review of the administrative decision initiated by the citizen through their lawyer is successful and the involvement of a lawyer is deemed necessary (Section 80 of the Administrative Procedure Act). This is usually the case if legal issues had to be discussed in the administrative decision.
4. Under German law, the authority that derives rights vis-à-vis citizens from the superior position of the state acts by means of a so-called administrative act. An administrative act is practically any administrative measure with external effect, i.e. one that can affect a citizen.
5. Before an administrative act is issued that interferes with the rights of a party involved, that party must be given the opportunity to comment on the facts relevant to the decision. Even at this stage of the decision-making process, the person concerned is entitled to engage a solicitor to represent them before the authority (Section 14 of the Administrative Procedure Act).
6. The position of the lawyer is also protected in these preliminary proceedings. According to Section 14(3) sentence 1 VwVfG, the authority must contact the lawyer if he has been appointed for the proceedings. This provision generally prohibits the administrative authority from contacting a party to the proceedings directly, bypassing the representative. Only in exceptional cases and with the consent of the lawyer may this provision be deviated from, Section 14 (3) sentences 2 and 3 VwVfG.
7. Pursuant to Section 68 VwGO, any citizen who does not wish to accept an administrative act may lodge an objection within one month. The objection leads to an internal preliminary procedure (the so-called ‘objection procedure’) in which a higher authority re-examines the same facts.
8. The higher authority first forwards the objection to the original authority and gives it the opportunity, especially if new facts have been presented in the objection, to remedy the objection itself. If the lower authority does not remedy the objection itself, the higher authority conducts the objection proceedings and gives the objector or his lawyer another opportunity to comment. In some federal states, hearing committees are formed for this purpose, which primarily serve to hear the parties concerned orally and make recommendations to the administration.
9. If the authority then makes a final decision that is detrimental to the party concerned, legal recourse to the administrative courts is open.
10. As we can see, German public procedural law offers a high level of protection for citizens against sudden, unfounded and arbitrary decisions by the authorities. In public procedural law, the lawyer is also intended to act as the citizen's internal advisor within the authorities.
11. However, this positive basic situation should not obscure the fact that even in Germany there is a considerable power imbalance between the state and its citizens, which can lead to materially unjust decisions even if the procedural administrative regulations are carefully followed. The information gap between the authorities, which have access to all state archives and means of obtaining information, and individual citizens, who only know their own position, is obvious.
12. This disparity was already recognised by the first Merkel government as a threat to the constitutionally guaranteed right of unhindered access to information (Art. 5 (1) GG), and since 2016, so-called freedom of information laws have been enacted at the state and federal level, granting citizens an unconditional right to information. Upon request by any natural person, whether from within or outside Germany, the authorities are obliged to disclose documents and information or grant access to files. Access to information must be granted immediately, if possible within one month. Any exceeding of this deadline must be justified by the authority. Everyone is entitled to this right (known as ‘everyone's right’), and no personal interest is required. This effectively abolishes ‘official secrecy’. For example, minutes of internal consultations and internal emails must be published upon request.
13. In practice, the Freedom of Information Act is mainly used by journalists to obtain internal data from government agencies for their research. The operators of the platform ‘Frag den Staat’ (Ask the State) have been particularly successful in exposing abuses in public administration by making use of the possibilities offered by the Freedom of Information Act. For example, the public learned about the waste of funds during the coronavirus pandemic through unsuitable tenders and the purchase of vastly overpriced masks. But historical insights have also been gained through the revelation of the role played by Konrad Adenauer's closest associate in the Nazi regime, who was a co-author of the Nuremberg Race Laws.
14. The political debate in Germany is currently very lively. Supporters want to go one step further and are calling for a transparency law for the federal government modelled on that of the city-state of Hamburg, which would oblige authorities to publish information directly and not only upon request. Opponents of the law, including the current Chancellor Merz, want to abolish the Freedom of Information Act altogether as a means of reducing bureaucracy. Introduced as a proposal by the CDU in the coalition negotiations, this demand was rejected by the coalition partner SPD, meaning that the Freedom of Information Act will remain German law for the next few years.
15. The Freedom of Information Act is an effective tool for lawyers to assert their clients' claims against the authorities even before they go to court. However, it also serves to reduce the information advantage of corporations that are regularly audited by authorities in purely civil law disputes. One example is the diesel scandal, in which the type approval authority for the individual vehicles was also required to provide consumers with the information necessary for legal disputes in accordance with the Freedom of Information Act.
16. In addition to the Freedom of Information Act, there are other German laws that grant citizens and their lawyers the right to access information. In the case of environmental information, a claim under the Environmental Information Act (UIG) may also be considered. If there is reason to believe that the authority has stored data relating to the client, a claim for information under the GDPR may be available.
In summary, it can be reported from Germany that the position of citizens in internal administrative proceedings is protected and that they are guaranteed the right to be heard. The position of the lawyer also enjoys special protection in internal administrative proceedings; he is the privileged contact person for the authority. However, there is still an imbalance between the level of information available to the authority and that available to the citizen, which is being reduced by laws that oblige the authorities to disclose their knowledge.
Frankfurt a. M., 15th June 2025