For an administrative offense to occur, the following elements must be present:
- Actus reus:
Firstly, there must be behavior that corresponds to the statutory offense in administrative law. The punishable behavior can either be an action (act offenses) or an omission (omission offenses). Furthermore, offenses can be distinguished between those that require the occurrence of a specific outcome (result offenses) and those that do not (simple activity offenses or disobedience offenses).
The disobedience offenses constitute the majority of administrative offenses.
- Illegality:
The actus reus is generally illegal – thus, illegality is indicated. However, illegality is excluded, and the act is therefore not punishable if there is a justification (e.g., self-defense, consent).. - Culpability:
Culpability is required for every administrative offense, and generally, negligence is sufficient to establish punishable behavior. Only if explicitly stated otherwise in the respective offenses, intent is required.
No culpability is attributed to individuals who are incapable of being culpable due to their age (completion of 14 years of age) or mental condition.
The burden of proof for the actus reus of the behavior lies with the authority. Regarding culpability, the burden of proof depends on the nature of the offense. The authority must prove culpability only for result offenses, while there is a rebuttable presumption in the case of disobedience offenses subject to a fine of up to EUR 50,000. Above this value, the authority must prove culpability even for disobedience offenses.
Similar to judicial criminal law, not only the immediate perpetrator – i.e., the one who commits the punishable behavior – is liable but also the instigator and accomplice.
