Ermessens

Ermessens, in German often used in the plural form Ermessens or in the compound Ermessen, denotes the discretion or latitude granted to a person or authority to decide within the bounds of a law or regulation. The term derives from ermessen, meaning to judge or assess, and appears frequently in administrative and constitutional contexts.

In legal practice, Ermessens arises when statutes authorize a decision among several permissible outcomes or require balancing competing interests. Two main forms are recognized: freies Ermessen, where the decision-maker has substantial latitude to weigh factors and choose among acceptable options, and gebundenes Ermessen, where the scope is more constrained and the decision must adhere to predefined factors and alternatives provided by law. Even in freies Ermessen, decisions must pursue the statutory aims and remain proportionate and reasonable.

Ermessensfehler are errors that can occur in the exercise of discretion. Examples include misapplying legal standards, ignoring relevant facts, considering irrelevant factors, or producing an arbitrary, irrational, or disproportionate result. Judicial and supervisory scrutiny focuses on whether the decision stayed within permissible bounds, followed fair procedures, and adhered to principles such as proportionality and rational justification.

Common areas where Ermessens applies include administrative decisions on permits and licenses, welfare or benefit determinations, and sanctions or penalties. The concept helps balance legal certainty with administrative flexibility, allowing authorities to account for individual circumstances while maintaining accountability and predictability in public decision-making.