Action for Failure to Act (Untätigkeitsklage)
What is an action for failure to act?
If an authority fails to make a decision on an application (e.g. for naturalization) within a reasonable period of time without sufficient reason, an action can be brought before the Administrative Court without the authority having made a decision (Section 75 of the Administrative Court Code).
The administrative court can then oblige the authority to grant the (naturalization) application.
When can an action for failure to act be brought?
The action is admissible at the earliest three months after the application has been submitted. If, in the opinion of the court, there is sufficient reason for the authority not to have made a decision yet, the court will suspend the proceedings for a certain period of time.
How does the procedure work after the application has been filed?
The court notifies the authority of the claim and sets a deadline of usually 6-8 weeks to submit a statement.
The following scenarios are conceivable:
Scenario 1: The authority informs you that the application (e.g. for naturalization) is granted.
Scenario 2: The authority informs you that documents are missing (e.g. current proof of income)
Scenario 3: The authority rejects the application.
Scenario 4: The authority states that it is unable to make a decision due to the large number of applications and remains inactive.
What happens next?
in scenario 1: The legal proceedings can be declared closed.
in scenario 2: Further documents are sent to the court. The court forwards the documents to the authority for a new statement. The procedure continues as in scenario 1.
in scenario 3: The action can be continued with the aim that the court obliges the authority to grant the application (e.g. for naturalization).
in scenario 4: If the requirements (e.g. for naturalization) are met, the court obliges the authority to grant the application (e.g. for naturalization), or
If the requirements (e.g. for naturalization) are not met, the court rejects the application.
How long does the procedure take in total?
The duration of the procedure depends on how the authority responds.
in scenario 1 and 2: The authority approves the application (e.g. for naturalization). How long the procedure takes depends on whether the authority has already announced in the first statement (after 6-8 weeks) that it will approve the application or whether, for example, further documents or statements are requested.
in scenario 3 and 4: Before the court can make a decision, it usually schedules a date for a hearing. As the courts are also overloaded, it takes 1-2 years before a hearing date is set. There is no way of forcing the court to make a quicker decision. After the hearing, the court issues a judgment against which the plaintiff and the authority have the opportunity to lodge an appeal within one month.
What are the costs of the lawsuit?
The costs depend on the number of persons for whom the action is brought.
The costs in citizenship cases are calculated in accordance with the Lawyers’ Fees Act and the Court Costs Act as follows:
| Lawyers´ fee incl. VAT |
Court Fees | total | |
| 1 person | € 973.66 | € 798 | € 1,771.66 |
| 2 persons | € 1.295.44 | € 1,146 | € 2,441.44 |
| 3 persons | € 1,501.19 | € 1,347 | € 2.848.19 |
| 4 persons | € 1.751.80 | € 1,575 | € 3,326.80 |
The costs for an action for failure to act to obtain a residence permit are a little lower.
When do I have to pay these fees?
When filing the action we charge the above mentioned lawyers´ fees. We can offer you payment in intallments. Further costs may be incurred for scenarios 3 and 4 if a court hearing is schduled or in the event of a settlement agreement with the authority.
The court fees will be invoiced by the court cashier after the lawsuit has been registerd.
Does the authority have to reimburse the costs?
The court decides at the end of the proceedings whether the authority has to pay the legal fees and court costs.
in scenario 1 and 2: If the court comes to the conclusion that the authority should have decided more quickly, it will oblige the authority to reimburse the costs of the proceedings.
in scenario 3 and 4: If the court orders the authority to grant the application (e.g. for naturalization), the authority must reimburse the costs.
If the court rejects the application, the plaintiff must bear the costs.
