Administrative Court of Munich, 30.03.2017, Ref.: M 10 K 16.3087
If a civil servant intentionally or negligently violates an official duty owed to a third party, they are liable to compensate the third party for the resulting damage, cf. Section 839, Paragraph 1 of the German Civil Code (BGB). Article 34 of the Basic Law (GG) stipulates that responsibility generally lies with the state or the public body in whose service the civil servant is employed. A claim for damages against the state or the public law body can only exist if a breach of duty occurs in the exercise of a public office or during sovereign activity. This breach of duty can generally affect various public legal norms. The processing of a visa application also forms a legal relationship in which such breaches of duty can occur. However, a prerequisite for such a claim is the need for third-party protection, which is intended to prevent compensation for a remote third-party loss. This third-party protection is interpreted based on whether the official duty, by its meaning and purpose, brings the obligated public authority and the citizen into closer contact with each other. Additionally, there must be fault on the part of the civil servant and a causal damage resulting from the breach of duty.
In the following judgment, the Administrative Court of Munich determines that third-party protection does not extend to the husband of a visa applicant but at most to the applicant herself, and thus there is no third-party effect in his favor. In the present case, the plaintiff sought compensation, arguing that he should receive monetary compensation for all religious and other annual festivals he could not spend with his wife due to the processing time of her visa application.
Initiation of Proceedings: Lawsuit at the Federal Administrative Court
The plaintiff, a German citizen, filed a lawsuit with the Federal Administrative Court (BVerwG) on May 18, 2016. Without a formal application, he sought a binding written permit for his wife, an Indian citizen, to enter Germany to join him. Additionally, he demanded compensation of 50,000 euros from the Federal Republic of Germany for all costs incurred and to be incurred due to the delayed processing of his wife’s visa application by the German embassy in India.
Referral of the Lawsuit to the Bavarian Administrative Court Munich
However, the Federal Administrative Court referred the case to the Bavarian Administrative Court Munich on June 30, 2016, as it declared itself incompetent. In a further letter to the Administrative Court of Munich, the plaintiff argued that he and his wife had a right for the German embassy in New Delhi to issue a visa for his wife’s family reunion. He justified this by stating that he had married his wife in Punjab, India, according to Hindu rites on May 8, 2016.
Defendant’s Argument: Inadmissibility and Unfoundedness of the Lawsuit
The defendant, represented by the Federal Republic of Germany, requested in its letter of December 5, 2016, that the lawsuit be dismissed. It argued that the lawsuit was inadmissible because, at the time of filing on May 18, 2016, no visa application for the plaintiff’s wife was pending. A visa application was only submitted on July 21, 2016. The lawsuit was therefore inadmissible because an action to compel generally requires a previously submitted and unsuccessful administrative application.
Furthermore, the defendant argued that the lawsuit was also unfounded. The visa application was submitted along with a marriage certificate documenting a marriage according to Hindu rites on May 13, 2016, in India. However, this marriage was invalid under Indian law because it was conducted under the Hindu Marriage Act, which only applies to Hindus. Neither the plaintiff nor his wife were Hindus. The German embassy in New Delhi had informed the plaintiff and his wife that a legally valid marriage must be performed under the Special Marriage Act. Since there was no valid marriage, the visa application had to be rejected.
Decision of the Administrative Court of Munich: Dismissal of the Lawsuit
The Administrative Court of Munich rejected the plaintiff’s requests for a declaration obligating the Free State of Bavaria to issue a visa for his wife’s immediate entry into Germany and for a marriage to take place in Germany, in a decision dated December 13, 2016. It reasoned that the plaintiff could not claim any further rights since his wife was already in Germany and had received a visa. The plaintiff stated in a letter dated February 23, 2017, that the lawsuit had been resolved insofar as his wife had received the visa and was now in Germany. However, he did not issue an official declaration of resolution at the court’s request.
Plaintiff’s Claims for Damages: Emotional Harm and Compensation Demand
The plaintiff maintained his claims for damages totaling 127,320 euros. In a letter dated March 13, 2017, he demanded compensation for the psychological stress caused by the forced period of living alone by the German authorities. He sought compensation for each celebration spent alone due to the delays, including 7,320 euros for the time spent alone (30 euros per day), 25,000 euros for a birthday spent alone in August 2016, 15,000 euros for the Hindu festival of Karwa Chauth, 10,000 euros for the Diwali festival, 50,000 euros for Christmas 2016, and 20,000 euros for New Year’s Eve 2016.
Court Ruling: Inadmissibility and Unfoundedness of the Lawsuit
The Administrative Court of Munich ruled that the lawsuit was both inadmissible and unfounded. It found that although the court was both locally and substantively competent following the Federal Administrative Court’s decision on June 30, 2016, the lawsuit failed due to a lack of legal interest. Since the plaintiff’s wife had already entered Germany, the plaintiff could not enforce any further rights with his lawsuit.
The plaintiff’s claims for damages were also dismissed. The court determined that there had been no breach of official duty by the German embassy in New Delhi. There was no duty relationship with the plaintiff that would justify a claim for damages. Such a duty relationship might have existed at most with the plaintiff’s wife, but not with the plaintiff himself. Furthermore, no quantifiable damage had occurred that would warrant compensation. The court referred to the case law of the Federal Constitutional Court, which states that monetary compensation is only considered in cases of particularly serious violations of general personal rights. Such a serious infringement was not present in this case.
The court found that the German embassy had acted correctly by carefully examining the legal requirements for issuing a visa. Since the marriage under Hindu rites was invalid under Indian law, the embassy had rightly rejected the visa application. The embassy’s decision was based on careful legal consideration, so there was no causal link between the embassy’s actions and the damages claimed by the plaintiff.
As no further requirements for an official liability claim were met, the plaintiff’s lawsuit was fully dismissed. The judgment of the Administrative Court of Munich clarified that the lawsuit was both inadmissible and unfounded.
Source: Munich Administrative Court
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