Judgment of 26 June 2014 -
BVerwG 3 CN 1.13ECLI:DE:BVerwG:2014:260614U3CN1.13.0


Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its decisions, is German. This translation is based on an abbreviated version of the original decision. It is provided for the reader’s convenience and information only. Please note that only the German version is authoritative. Page numbers in citations have been retained from the original and may not match the pagination in the English version of the cited text.
When citing this decision it is recommended to indicate the court, the date of the decision, the case number and the paragraph: BVerwG, Judgment of 26 June 2014 - BVerwG 3 CN 1.13– para. 16.

Headnote

The regulation of administrative fees to cover the costs, which the participating authorities of the federal states incur in executing federal laws as their own responsibility (Landeseigenverwaltung) is a regulation of an administrative procedure within the meaning of article 84 (1) first and second sentences of the Basic Law (GG, Grundgesetz). Thus, the federal state of Lower Saxony was authorised to deviate in the Schedule of Administrative Fees for Permits and Exceptional Authorisations for Excessive Road Use for the Federal State of Lower Saxony of 14 February 2012 (Nds. StrGebO, Niedersächsische Gebührenordnung für Erlaubnisse und Ausnahmegenemigungen für übermäßige Straßenbenutzung; Lower Saxony Act and Regulation Gazette (Nds. GVBl., Niedersächsisches Gesetz- und Verordnungsblatt) p. 22) from the Federal Schedule of Administrative Fees for Measures in Road Traffic of 25 January 2011 (Gebührenordnung für Maßnahmen im Straßenverkehr) (Federal Law Gazette (BGBl., Bundesgesetzblatt) p. 98) pursuant to article 84 (1) second sentence GG.

  • Sources of law
    Basic Law for the Federal Republic of Germany GG, Grundgesetz articles 31, 74 (1) no. 22, article 84 (1)
    Road Traffic Regulations StVO, Straßenverkehrsordnung section 29 (3), sec-tion 46 (1) first sentence no. 5
    Federal Schedule of Administrative Fees for Measures in Road Traffic GebOSt, Gebührenordnung für Maßnahmen im Straßenverkehr appendix, no. 263 and no. 264
    Administrative Costs Act for the Federal State of Lower Saxony NVwKostG, Niedersächsisches Verwaltungskostengesetz section 3 (1) first sentence, (4) first sentence
    Schedule of Administrative Fees for Permits and Exceptional Authorisations for Excessive Road Use for the Federal State of Lower Saxony Nds. StrGebO, Niedersächsische Gebührenordnung für Erlaubnisse und Ausnahmegenemi-gungen für übermäßige Straßenbenutzung sections 1 and 2

Summary of the facts

The claimant deems the Schedule of Administrative Fees for Permits and Ex-ceptional Authorisations for excessive Road Use for the Federal State of Lower Saxony of 14 February 2012 (Nds. StrGebO, Niedersächsische Gebührenord-nung für Erlaubnisse und Ausnahmegenemigungen für übermäßige Straßenbe-nutzung) - hereinafter referred to as Lower Saxony Schedule of Fees - to be void.

The claimant conducts transports of heavy goods and high-capacities on public roads. Pursuant to section 29 (3) and section 46 (1) first sentence no. 5 Road Traffic Regulations (StVO, Straßenverkehrsordnung), the claimant requires the necessary permits or authorisations, which are generally issued in the federal state (Land) of Lower Saxony for the use of roads with particularly large or heavy vehicles by the road traffic authority of the municipal regional authorities. In order to process such applications these authorities - if the transports go through Lower Saxony - regularly ask for an opinion by the Lower Saxony Authority for Road Construction and Traffic (NLStBV, Niedersächsische Landesbehörde für Straßenbau und Verkehr) - hereinafter referred to as Lower Saxony State Authority. The Lower Saxony Authority, which for this cooperation has personnel and equipment available in an own department, examines whether the planned road way can be driven on without impairment of the traffic structures (roads, bridges, tunnels, etc.); if necessary, it may recommend an alternate route. The fees charged by the permit and authorisation authorities for the decision on the application was - up until the disputed Lower Saxony Schedule of Fees came into effect - fully for the benefit of the legal entity of these authorities. The defendant had no share in the incurred fees for the involvement of the Lower Saxony State Authority. In order to change this, first the Administrative Costs Act for the Federal State of Lower Saxony (NVwKostG, Niedersächsisches Verwaltungskostengesetz) was supplemented with the Ancillary Budget Act 2012 (Haushaltsbegleitgesetz) with the power to set forth a regulation in the Lower Saxony Schedule of Fees, which deviates from federal law regulation if a fee set forth by federal law does not cover the expenses or federal law prohibits charging a fee for a certain offi-cial act. Subsequently, the Ministry for Economy, Labour and Traffic of Lower Saxony, in agreement with the Ministry of Finance of Lower Saxony, decreed the Schedule of Administrative Fees for Permits and Exceptional Authorisations for the Federal State of Lower Saxony of 14 February 2012, which came into force on 1 April 2012 (Lower Saxony Act and Regulation Gazette (Nds. GVBl, Niedersächsisches Gesetz- und Verordnungsblatt) p. 22).

The wording thereof is as follows:

“Based on section 3 (1) first sentence, (4) first sentence and (5) second sentence of the Administrative Costs Act for the Federal State of Lower Saxony as of 25 April 2007 (Nds. GVBl. p. 172), last amended by article 7 of the Act of 9 December 2011 (Nds. GVBl. p. 471), in agreement with the Ministry of Finance and section 4 (2) NVwKostG, in agreement with the Ministry for Economy, Labour and Traffic

it is decreed:

section 1

(1) An administrative fee is levied for the decision on a permit for an excessive use of roads pursuant to sec-tion 29 (3) Road Traffic Regulations and for the decision on permits for an exemption from the provisions regarding height, length or width of vehicles or loads (section 46 (1) first sentence no. 5 StVO). The amount of the fee is de-termined by the time spent on the decision; however, at least EUR 10 and at most EUR 850 shall be levied. Sec-tion 1 (4) third to fifth sentences of the General Schedule of Fees shall apply accordingly. A cooperation with the Lower Saxony Authority for Road Construction and Traffic in the preparation of the decision is not considered under the second and third sentence; in cases of cooperation by the Lower Saxony Authority for Road Construction and Traffic, the fee pursuant to the second and third sentence is increased by EUR 30.

(2) If a fee shall be levied pursuant to subsection (1), then the fee no. 263 and no. 264 of the appendix to the Feder-al Schedule of Administrative Fees for Measures in Road Traffic of 25 January 2011 (Federal Law Gazette (BGBI., Bundesgesetzblatt) I p. 98) shall not be applicable.

(3) Federal administrative costs law shall be applicable for levying a fee pursuant to subsection (1).

section 2

If the Lower Saxony Authority for Road Construction and Traffic was involved in the preparation of the decision, pursuant to section 1 (1), then the federal state of Lower Saxony shall be allocated EUR 30 of the fee received.

section 3

This ordinance shall come into force on 1 April 2012.”

This Schedule of Fees was declared void by the Higher Administrative Court of Lower Saxony (Niedersächsisches Oberverwaltungsgericht) with judgment of 15 November 2012, following the application for judicial review by the claimant. It would violate federal law, namely, the numbers 263 and 264 of the appendix to the Federal Schedule of Administrative Fees for Measures in Road Traffic of 25 January 2011, which regulate a different fee framework, - GebOSt, Gebührenordnung für Maßnahmen im Straßenverkehr- (BGBl I p. 98) - hereinafter referred to as Federal Schedule of Fees - and, thus, would be void pursuant to articles 31 and 70 of the Basic Law (GG, Grundgesetz). Contrary to the defendant’s legal opinion, article 84 (1) GG and article 125b (2) GG would not grant the federal states the authority to issue a schedule of fees enabling them to exclude the application of no. 263 and no. 264 of the appendix to the Federal Schedule of Fees in decisions on a permission for excessive use of roads pursuant to section 29 StVO and an exemption permit pursuant to sec-tion 46 (1) first sentence no. 5 StVO, as envisioned in section 1 (2) of the con-tested Lower Saxony Schedule of Fees. The requirements pursuant to arti-cle 84 (1) second sentence GG for a deviation from federal law would not be fulfilled. The state authority to levy a fee for administrative services would not be part of the administrative procedure but - according to established jurisprudence of the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht)– would be part of the respective competency of factual legislation, thus, in particular articles 72 to 74 GG.

Array

Reasons (abridged)

8 The defendant’s appeal on points of law is well-founded. The Higher Adminis-trative Court’s assumption that the federal state of Lower Saxony did not have the competence to issue the Schedule of Administrative Fees for Permits and Exceptional Authorisations for Excessive Road Use for the Federal State of Lower Saxony of 14 February 2012, violates federal law (section 137 (1) Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung). Con-trary to the legal opinion of the Higher Administrative Court the federal state had the right to deviate from the Federal Schedule of Fees pursuant to arti-cle 84 (1) second sentence GG (1.). However, the deciding Senate is hindered in making a final decision on the request for judicial review (Normenkontrollantrag); the case must be referred back to the Higher Administrative Court for further clarification of the facts. The disputed Lower Saxony Schedule of Fees could also be void because the requirements of the law of the federal state in section 3 (4) NVwKostG are not fulfilled in regards to the deviation from federal law as envisioned in the Lower Saxony Schedule of Fees. In order to assess this - besides the fact that it involves the interpretation and application of federal state law - further factual examinations are necessary (2.). The same applies to the question whether in the case of section 1 of the disputed Lower Saxony Schedule of Fees being void, section 2 of the same could also apply for itself, which envisions the participation in fees by the federal state for the involvement of the Lower Saxony State Authority in the permission procedure (3.). Conversely, the remittal of the case to the Higher Administrative Court cannot be dismissed (section 144 (4) VwGO), because the disputed Lower Saxony Schedule of Fees is void due to a violation of higher ranking law of one of the other asserted violations. These reprimands are unfounded inasmuch as they are subject to the review in the appeal on points of law (4.).

9 1. Contrary to the Higher Administrative Court’s opinion, the defendant did have the authority to grant the issuer of ordinances in the federal state the possibility in section 3 (4) NVwKostG to deviate from federal law regarding the fees in question and to implement the disputed Lower Saxony Schedule of Fees. With these provisions of federal state law regarding assertion and amount of the administrative fees which shall be paid by the party liable for costs for the permit for excessive use of roads pursuant to section 29 (3) StVO, as well as the exceptional authorisation from the requirements regarding height, length or width of vehicles pursuant to section 46 (1) first sentence no. 5 StVO, the administrative procedure is regulated within the meaning of article 84 (1) first sentence GG.

10 a) Pursuant to article 84 (1) first sentence GG, the federal states regulate, if they execute federal law as their own responsibility (Landeseigenverwaltung) - as in the case of the Road Traffic Regulations -, the establishment of authorities and administrative procedure. This allocation of competences is based on article 83 GG, according to which the federal states execute federal laws as their own responsibility (Landeseigenverwaltung) as long as the Basic Law does not stipulate or permit otherwise. This substantiates the principle of article 30 GG according to which the exercise of state authority and the fulfilment of state tasks is the duty of the federal states insofar as the Basic Law does not stipulate or permit otherwise.

11 b) However, as set forth in article 84 (1) first sentence GG also the Federation has a competence in the listed areas to regulate the administrative procedure and to establish the authorities - as can be seen in article 84 (1) second and fifth sentence GG. When article 84 (1) second sentence GG states that the fed-eral states can issue regulations which deviate from federal laws, then this im-plicitly means that corresponding provisions of federal law regarding the estab-lishment of authorities and of administrative procedures exist and, thus, that there is a corresponding federal competence. Thus, in regards to the execution of federal laws by the federal states as their own responsibility (Landeseigen-verwaltung) regarding the establishment of authorities and the administrative procedure, there are parallel regulation-competences for the Federation (Bund) and the federal states (…). This becomes evident again in article 84 (1) third sentence GG.

12 Due to the federal states’ right to deviate as set forth in article 84 (1) second sentence GG, it is irrelevant whether the Federation’s competence to legislate on the organisation of authorities and the administrative procedure is - also - founded in the subject-related competences of article 70 et seqq. GG (…) or constitutively only in article 84 (1) second sentence GG (…). It is certainly cor-rect that a connection to a subject-related competence to legislate is necessary if the Federation intends to set rules regarding the questions of establishing authorities and the administrative procedures. The Federation’s authority to set rules pursuant to article 84 GG is accessory in this sense (…). In other words, the Federation only has the competence to set rules in regards to the organisa-tion of authorities and administrative procedures as far as the execution of fed-eral laws in the federal state’s own responsibility is concerned if it may also regulate the substantive law in this specific area. Thus, the Federation’s competence to set rules based on article 84 (1) second sentence GG follows the competence to legislate substantive law based on article 70 et seqq. GG. The judgment on re-registration fees in the Federal State of Baden-Württemberg by the Federal Constitutional Court (BVerfG, Bundesverfas-sungsgericht) of 19 March 2003 - 2 BvL 9/98 inter alia - (Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 108, 1), to which the Higher Administrative Court and consequently the claimant refer, has to be interpreted in the same way. The Federal Constitutional Court finds in that decision that the competence to legislate in regards to non-tax duties - therefore also for fees, as opposed to taxes, for which article 105 GG is applicable - shall be derived from the general rules of article 70 et seqq. GG; it thus follows from the general subject-related competences to legislate. However, because of the outlined connection it cannot be derived that provisions of fee law could not be rules of administrative procedures within the meaning of article 84 (1) GG.

13 Moreover, this connection of subject-related competence pursuant to article 70 et seqq. GG and procedural rules pursuant to article 84 GG already existed ac-cording to the old constitutional law, which was applicable prior to the reform of the federal system (Föderalismusreform). However, pursuant to article 84 (1) GG old version, prior to 1 September 2006, the Federation was only permitted to regulate the organisation of the authorities and the administrative procedures with the consent of the Bundesrat (Federal Council of Germany, the representation of the 16 federal states of Germany at federal level). This corresponded to the Federation’s common practice - which the Representative of the Interests of the Federation at the Federal Administrative Court (Vertreter des Bundesinteresses beim Bundesverwaltungsgericht) correctly pointed out - among others, in those cases in which the Federation wanted to issue regulations on levying and regarding the amount of administrative fees with regard to the execution of federal law by the federal states as their own responsibility.

14 According to this, a regulation of administrative fees in regards to the execution of road traffic law by the Federation requires a federal competence for substan-tive road traffic law. Such a concurrent legislative power is granted to the Fed-eration by article 74 (1) no. 22 GG. This explicit authorisation contains, among others, the “road traffic”, as well as the “levying and division of fees”, or - as was later amended - of “tolls” for the use of public roads with vehicles. The Higher Administrative Court correctly held that the competence for “road traffic” is decisive for the disputed Lower Saxony Schedule of Fees, because the subsequently listed subject only contains fees and tolls as consideration for the use of public roads as such. This - at the latest - is clarified by the reasons of the draft legislation to amend the Basic Law of 7 March 2006 (Bundestag printed paper (BT-Drs., Bundestagsdrucksache) 16/813 p. 13). This reads, “Just as the public law fee, the private law toll for the use of a public road constitutes a benefit in cash which can be made as a consideration for the use of the public road.” This means public law or private law considerations for the actual use of the road, thus usage fees or tolls, but not administrative fees for which the administrative expense for a permit for road use which shall be obtained in advance shall be compensated. That, however, is the exact subject of no. 263 and no. 264 of the appendix to the Federal Schedule of Fees, as well as in the disputed Lower Saxony Schedule of Fees.

15 Accordingly, the Federal Administrative Court stated in several judgments that the Federal Schedule of Fees in its old version which was then applicable was based on the Federation’s legislative power according to article 84 (1) GG old version last half sentence (“… insofar as … federal laws with the consent of the Bundesrat state differently”) and its legislative power according to arti-cle 74 (1) no. 22 GG (judgments of 28 September 1979 - BVerwG 7 C 26.78 - BVerwGE 58, 326 <330> (…) and of 22 March 1979 - BVerwG 7 C 65.75(…)). By contrast, these judgments do not give any indication in relation to such administrative fees to differentiate between the authority to set fees on the one hand and the regulation of general principles of levying fees on the other, as the Higher Administrative Court has assumed.

16 c) The defendant was allowed to deviate from this Federal Schedule of Fees based on article 84 (1) second sentence GG. The authorisation to regulate the establishment of authorities and the administrative procedures in the area of the federal states’s own administration (Landeseigenverwaltung), which was granted to the Federation since 1 September 2006 without the need for consent is - pursuant to article 84 (1) second sentence GG - under the proviso of a deviating law of the federal states. This authorisation to deviate which was granted to the federal states in the course of the reform of the federal system was intended to compensate them for the loss of the hitherto requirement of consent by the Bundesrat. Herein lies - if one compares the authorisation to deviate with the hitherto requirement to consent, the exercise of which depended on the governments of the federal states - a strengthening of the parliaments of the federal states either direct if the deviation occurs directly via a formal law of the federal state, or indirectly, if the legislator of the federal state - as in the case at hand - authorises the executive to issue a deviating or-dinance. With the federal states’ right to deviate, the question - which was often examined in judgments concerning the old version of article 84 GG - whether the Federation set up an exclusive regulation or left the federal states the leeway to issue their own regulations has become largely irrelevant.

17 From the federal law point of view, the defendant made use of the authorisa-tion to deviate, which was derived from article 84 (1) second sentence GG, in a permissible manner.

18 aa) The Federal Schedule of Fees for Measures in Road Traffic of 25 January 2011 Gebührenordnung für Maßnahmen im Straßenverkehr), of which pursuant to section 1 (2) of the disputed Lower Saxony Schedule of Fees, its fee num-bers 263 and 264 should not be applicable, is no federal law which cannot be deviated from within the meaning of article 84 (1) fifth sentence GG. According to this provision, the Federation may regulate the administrative procedure without the federal states’ possibility to deviate if there is a special need to uni-form regulations. Pursuant to article 84 (1) sixth sentence GG these laws re-quire the consent of the Bundesrat. Neither from the Federal Schedule of Fees itself, nor the preceding federal law authorisation to issue ordinances can it be construed that the Federation wanted to make use of its authority based on article 84 (1) fifth and sixth sentence GG. Merely the fact that the Federal Schedule of Fees came into effect with the consent of the Bundesrat is not sufficient, especially since this consent was assumed to be necessary pursuant to article 80 (2) GG (Bundesrat printed paper (BR-Drs., Bundesratsdrucksache) 723/10). Instead, the exclusion of the right to deviate must be explicitly regulated - simply for reasons of legal clarity (…).

19 bb) The use of the right to deviate from article 84 (1) second sentence GG by the federal states is not bound to special substantive requirements (…). Neither the wording of the regulation contains such a limitation nor is a need for such a requirement discernible. Because on the one hand, the federal states’ right to deviate re-establishes the “initial state” - a comprehensive organisational power of the federal states in the execution of federal law as their own responsibilities - as set forth in article 83 in connection with article 84 (1) first sentence GG. On the other hand, pursuant to article 84 (1) second sentence GG, the Federation now possesses a possibility to correct - if the federal states took measures on the basis of article 84 (1) second sentence GG and the Federation sees a need for a federally uniform regulation. In those instances, the Federation can issue - of course only with the consent of the Bundesrat and pursuant to arti-cle 84 (1) fifth and sixth sentence GG in exceptional cases and in the case of an existing special need - also from the onset federal law that does not allow for deviation.

20 It does not need to be considered in depth at this point whether - for example in regards to the principle of allegiance to the Federation (Prinzip der Bun-destreue) - possibly limitations for the federal states’ right to deviate arise if the legislator of the federal state with his regulations on authority organisation and administrative procedures contradicts the regulations set forth by the Fed-eration regarding substantive law based on its competence in the matter pursu-ant to article 70 et seqq. GG (…). There is no such indication in the deviation at hand from the fee framework for exceptional authorisations in the Federal Schedule of Fees. Likewise, this Federal Schedule of Fees is not a “two-faced rule” in which a deviation by the federal states could be subject to limitations due to the close connection of substantive law and procedural law (…).

21 In regards to the depicted connection of subject-related legislative power pursuant to article 70 et seqq. GG and the regulation competence based on article 84(1) GG regarding the implementation of the law, the Higher Admin-istrative Court’s assumption that an assignment to article 74 (1) no. 22 GG ex-cludes the federal states’ right to deviation falls short. Even if one sees, with parts of the legal literature, in the regulations regarding the administrative procedure an “annex” to the subject-related competences pursuant to article 70 et seqq. GG, article 84 (1) GG provides here a right to deviate for the federal states. Thus, there is no need for further discussion on the issues debated in legal literature whether the competence to regulate the administrative procedure actually depicts such an annex to subject-related matters or whether it solely finds its basis in article 84 (1) GG (…).

22 cc) Contrary to the Higher Administrative Court’s assumption, the authorisation to issue ordinances in section 3 (4) first sentence NVwKostG and the disputed Lower Saxony Schedule of Fees are regulations of the administrative procedure within the meaning of article 84 (1) GG.

23 (1) According to established jurisprudence by the Federal Constitutional Court, in any case, this includes such statutory provisions which set forth the type and manner of execution of the act, including the type of action by the administration, the type of the administrative decision-making process, the type of the examination and preparation of the decision, its realisation and execution, as well as internal administrative cooperation and review procedures in its process (cf. inter alia BVerfG, judgment of 8 April 1987 - 2 BvR 909/82 and others - BVerfGE 75, 108 <152>; judgment of 10 December 1980 - 2 BvF 3/77 - BVerfGE 55, 274 <320 f.>; judgment of 25 June 1974 - 2 BvF 2/73, 3/73 - BVerfGE 37, 363 <385, 390>). The Federal Constitutional Court explicitly also includes the authorisation to create regulations to levy administrative fees. After its decision of 9 July 1969 - 2 BvL 25/64, 26/64 - (BVerfGE 26, 281 <298>) it has been - safe for exceptions as that of article 84 (1) GG - the federal states’ responsibility to regulate the procedure of federal state authorities; this includes the authority to enact administrative fee laws.

24 The decisions of the Federal Constitutional Court listed by the Higher Adminis-trative Courts do not state anything to the contrary. Predominantly, the subject of these was not levying administrative fees but rather other non-tax levies (judgments of 20 July 1954 - 1 BvR 459/52 and others - BVerfGE 4, 7 - contri-bution pursuant to the Investment Aid Act (Investitionshilfegesetz); of 10 December 1980 - 2 BvF 3/77 - BVerfGE 55, 274 - vocational training levy pursuant to the Training Place Funding Act (Ausbildungsplatzförder-ungsgesetz); decisions of 8 June 1988 - 2 BvL 9/85, 3/86 - BVerfGE 78, 249 - false occupancy charge for owners of publicly sponsored flats; of 17 July 2003 - 2 BvL 1/99 and others - BVerfGE 108, 186 - charge levied to finance vocational training allowances for students or trainees in the geriatric care sector; of 18 May 2004 - 2 BvR 2374/99 - BVerfGE 110, 370 - levying and assessing contributions to sludge compensation fund). Even if the Federal Constitutional Court in those decisions based its decisions on the subject-related competence pursuant to article 70 et seqq. GG and on this basis examined the competence to legislate for the listed levies, this does not lead to the conclusion which the Higher Administrative Court wants to reach for the relation of the subject-related legislative power derived from article 70 et seqq. GG and the competence arising from article 84 (1) GG, namely to regulate the administrative procedure and thus also the levying of administrative fees. The matters in the listed judgments of the Federal Constitutional Court were of a completely different nature. The question was whether for the levying of the disputed charges - which were to be categorised differently from a constitutional finance law aspect - the Federation had a competence to regulate, or, in the case on geriatric care the federal states, and the regulations issued were compatible with the constitutional finance law principles of article 105 GG and its protecting and limiting function. In addition, the Higher Administrative Court’s reference to the judgment by the Federal Constitutional Court of 8 June 1960 - 1 BvR 580/53 - is not convincing. That case dealt with court authentication. The dispute was whether the competence to regulate the transfer of competencies for court authentications to local courts and the determination of fees for these authentications lied with the Federation or the federal states. Here, the Federal Constitutional Court decided - which was referred to by the Higher Administrative Court - that pursuant to article 74 no. 1 GG old version, the competence to statutory regulation of the organisation of the court system and the court procedure also included the regulation of the fees for the use of the court (BVerfGE 11, 192 <198 et seq.>). However, contrary to the Higher Administrative Court’s opinion, this drawing on the subject-related competence does not permit the conclusion that in the case of administrative fees article 84 (1) GG is not applicable. Without a doubt, the term of administrative procedure within the meaning of article 84 (1) GG does not include the court procedure. Thus, it was and is necessary, in regards to the standardisation of court costs, to enshrine the same in the subject-related legis-lative power of article 74 (1) no. 1 GG due to the lack of any alternative compe-tency provision.

25 (2) Also, the Federal Administrative Court’s adjudication recognises that the competence to regulate the administrative procedure pursuant to article 84 (1) first sentence GG includes the issuance of regulations concerning administra-tive fees.

26 This was already stated by the 7th Senate in relation to the Federal Schedule of Fees in an earlier decision. If the federal states were to implement federal law - as in the area of road traffic - as their own responsibility, they would be generally authorised pursuant to article 30, 70, 84 (1) GG to regulate the procedure for their state authorities. This authorisation to regulate would also include the federal states’ competence to set administrative fee rules (judgment of 22 March 1979 - BVerwG 7 C 65.75 (…)).

27 In the same manner, the 10th Senate held in its judgment of 12 July 2006 - BVerwG 10 C 9.05 - that pursuant to article 84 (1) GG the regulation of fee law generally is the responsibility of the federal states if the federal states execute federal law as their own responsibility. The federal states’ authorisation to levy fees comes with their executive competence (BVerwGE 126, 222 para. 23 with further references; also judgment of 19 January 2000 - 11 C 6.99 (…)).

28 That corresponds with the jurisprudence of the 8th Senate. In its judgment of 1 December 1989 - 8 C 14.88 - it states that if the federal states would execute federal law as their own responsibility then they regulated the establishment of the authorities and the administrative procedure (article 84 (1) GG); that would include the competence to regulate the administrative fee law (judgment of 1 December 1989 - 8 C 14.88 - BVerwGE 84, 178 <180> with reference to BVerfG, judgment of 9 July 1969 - 2 BvL 25/64, 26/64 - BVerfGE 26, 281 <298>, as well as BVerwG, judgments of 22 March 1979, see above, and of 13 January 1959 - 1 C 114.57 - BVerwGE 8, 93 <94> (…)). In contrast, the Higher Administrative Court wrongly refers to two further judgments of the 8th Senate. (…)

29 Along the same lines, the claimant cannot deduce anything from the judgment of the 4th Senate of 3 April 1994 - 4 C 1.93 - (BVerwGE 98, 188 (…)), in order to justify the - alleged - non-applicability of article 84 (1) GG. Though it is stated there that the constituent power has considered fee law not as an independent subject-related matter but rather as a part of that area in which the administra-tive authorities fulfil public tasks for which a cost cover by fees would be con-sidered. However, that does not lead to a negative conclusion in regards to the interpretation of article 84 (1) GG, as in that proceeding the issue was not the execution of federal law by the federal states as their own responsibility but rather the so-called aviation security fees and thus the air traffic administration with the respective federal competences, among others, of article 87d GG. Fur-thermore, the 4th Senate did not deduce the Federation’s competence to regu-late - which was the issue here - solely from article 73 (1) no. 6 GG, but from this subject-related legislative power in connection with article 85 (1) and arti-cle 87d GG; therefore from additional competence provisions which specifically concern the execution of laws (see above, p. 192).

30 (3) Finally, it also corresponds to the overwhelming majority opinion in the legal commentaries that the authority to regulate the administrative procedure set forth in article 84 (1) GG includes the right to levy administrative fees (…).

31 (4) The “practical thoughts” put forward by the Higher Administrative Court against attributing the administrative fees to article 84 (1) GG are not convinc-ing.

32 There is only a necessity for “parallel legislation” by the federal states, which according to the Higher Administrative Court shall be an argument for the cate-gorisation of regulations on the amount of fees to the subject-related legislative power, if the Federation has not already issued a uniform regulation of fees, as is the case here with the Federal Schedule of Fees. Otherwise the federal states’ authority to establish authorities and regulate administrative procedure, which results from article 84 (1) GG, is the logical consequence of the constitu-tional legislator’s decision to assign the execution of a majority of the federal laws as their own responsibility, in accordance with article 83 GG. In this regard, it is only logical to put the right to regulate the administrative procedure and the costs of implementing the law in the hands of the federal states. This does not constitute a burden for the federal states - as the Higher Administrative Court seems to assume - but rather is a positive aspect and grants them the possibility to independently regulate the administrative tasks as is best for them. This is a sign of the sovereignty of the federal states emphasised by the Basic Law and, at the same time, a contribution to the vertical division of powers.

33 The Higher Administrative Court’s objection that in the case of a lacking uniform fee regulation there is a risk of a “competition” between the federal states also does not withstand scrutiny. The circumstance that the Basic Law in its articles 83 and 84 (1) assigns the regulation of the organisation of authorities and the administrative procedure to the federal states shows that also federal state regulations which deviate from one another are legitimate and acceptable on a constitutional law basis. Since the federalism reform, this type of “competition federalism” is additionally strengthened by the fact that the Basic Law now grants the federal states - aside from cases of article 84 (1) fifth sentence GG - an authorisation to deviate from federal law which is not further limited by substantive law.

34 (5) There is no discernible reason why - as the Higher Administrative Court assumes and subsequently the claimant asserts in the answer in the appeal on points of law - the competence to regulate the levying of fees should be split into the specific setting of fees on the one hand - here federal competence - and the administrative costs law with the regulation of general principles for the levying of fees on the other hand - there competence of the federal states.

35 Also the judgment of the 8th Senate of 1 December 1989 - 8 C 14.88 - (BVer-wGE 84, 178 <179>) cited by the Higher Administrative Court in this context does not indicate that such a differentiation is advocated. Rather, it states that the regulation of the administrative procedure includes the competence to regulate the administrative fee law (see above, p. 180). Insofar as the 8th Senate subsequently bases its consideration on the fact that with the Citizenship Schedule of Fees on the basis of article 84 (1) GG old version the Federation has set forth with the Bundesrat’s consent a concluding regulation, this is not transferable to the legal situation relevant now as article 84 (1) GG new version grants the federal states an explicit right to deviate. The same ap-plies in relation to the judgment of the 8th Senate of 21 June 2006 - 8 C 12.05 (…), to which the Higher Administrative Court also refers; article 84 (1) GG old version was also applied there.

36 Furthermore, it would also not be appropriate to separate the decision whether a fee shall be levied for a certain administrative act and the determination of the amount of such a fee from the regulation on administrative procedure, which is provided to the federal states pursuant to article 84 (1) first and second sentence GG. The federal states with their responsibility for the administrative authorities thus in every aspect have more proximity to the subject-matter than the Federation. On the one hand, if the implementation of federal law as their own responsibility is assigned to them pursuant to article 83 GG, then according to article 104a GG they must generally bear the administrative costs themselves. On the other hand, executing federal law through their own authorities, they also possess the necessary knowledge of the costs which accompany these administrative acts (in this sense also already BVerwG, judgment of 25 August 1999, see above, p. 281).

37 dd) The effectiveness of the disputed Lower Saxony Schedule of Fees is not opposed by the fact that the deviation as such is not regulated in a parliamen-tary act but in a federal state ordinance.

38 The reasoning for the amendment of article 84 (1) GG regarding the federal states’ right to deviate says that the federal states, as this is in regards to a de-viation of statutory regulations of the Federation, can only make use of their authority to deviate by way of an act (BT-Drs. 16/813 p. 15). However, there is no reason to understand the term “act” used there as meaning a formal law. In particular, there is no such constriction in the wording of article 84 (1) GG. It contains merely the term “deviating regulation”. Rather, the requirements of the respective federal state constitutional law are authoritative for the question whether the federal state must conceptualise the deviating regulation directly as a formal law or if delegated legislation is sufficient (…). Certainly, the requirements of the federal constitutional law principle of the rule of law, which overlap into the federal state law - as here in the form of the requirement of a specific enactment of a statute (Vorbehalt des Gesetzes) - must be considered in addition. But, these requirements were fulfilled in the case at hand as the defendant has supplemented the hitherto authorisation to issue a schedule of fees in section 3 NVwKostG old version prior to issuing the disputed Schedule of Fees with the provision that when certain requirements listed there are fulfilled in schedules of fees (of the federal state), a deviation from federal law is allowed.

39 ee) If a federal state makes use of its authority to deviate pursuant to arti-cle 84 (1) second sentence GG, then the deviating federal state regulations - as becomes evident from the reference in article 84 (1) fourth sentence to arti-cle 72 (3) third sentence GG, - takes precedence over existing federal law. The relation of federal and federal state law in the area of applicability of arti-cle 84 (1) second sentence GG is determined - safe for the exceptional cases that do not allow for deviation from federal law (c.f. article 84 (1) fifth sentence GG) - exclusively by the lex-posterior-rule. There is a primacy of application for the later passed federal state law (c.f. BT-Drs. 16/813 p. 15).

40 2. If the defendant was permitted to regulate the levying and amount of administrative fees based on the authority to regulate administrative procedure granted to him in article 84 (1) first sentence GG, and thus was also permitted to deviate from federal law pursuant to article 84 (1) second sentence GG, then the deviation in section 1 of the disputed Lower Saxony Schedule of Fees could still be deemed void as the supplementary federal state law requirements for such a deviation, set out in section 3 (4) first sentence NVwKostG, were not fulfilled. Whether that was the case cannot be decided in the appeal on points of law; the Higher Administrative Court did not make the necessary factual findings for this.

41 The authorisation to issue ordinances in section 3 (4) first sentence NVwKostG, which was introduced into the Lower Saxony Administrative Costs Act with the Ancillary Budget Act 2012, does not grant an unconditional, but rather a conditional deviation from federal law. Only if a federally regulated fee does not cover the administration expenditures or a fee is excluded by federal law for an official act, the Lower Saxony Schedule of Fees may deviate from federal law and provide for the levying of a fee for this official act. Which expenditures are meant is stated in section 3 (2) first sentence NVwKostG, which is referenced in (4) first sentence. According to this the fees shall cover the average expenditure of the authorities involved in the official act.

42 Under the assumption that already according to article 84 (1) second sentence GG the defendant had no authority to deviate, the Higher Administrative Court did not deal with these further - no longer federal but federal state law - re-quirements for the deviation from federal law. Accordingly, it did not make fac-tual findings on the coverage rate of the possible administrative fees under no. 263 and 264 of the Federal Schedule of Fees. In the oral proceedings be-fore the Senate, the parties did not agree that for the issuance of a permit for excessive road usage pursuant to section 29 (3) StVO, and for the decision on the exceptional authorisation pursuant to section 46 (1) first sentence no. 5 StVO, the average expenditure incurred by the authorities involved in the official act could not be covered by the fee framework as listed in no. 263 and no. 264 of the Appendix to the Federal Schedule of Fees. The thus - still - necessary factual examination cannot be made up for in the appeal on points of law (c.f. on cost cover principle pursuant to section 3 (2) NVwKostG: Higher Administrative Court Lüneburg, judgment of 14 December 2009 - 12 LC 275/07 - juris para. 24 et seq.).

43 3. In the present appeal on points of law the Senate handing down the judgment may neither take decision on whether - as the defendant alternatively asserted - pursuant to the principles on the partial invalidity of a provision (Grundsätze über die Teilnichtigkeit einer Norm) section 2 of the disputed Lower Saxony Schedule of Fees can be upheld. Though in relation to this provision in connection with section 1 the question just discussed on the fulfilment of the requirements of section 3 (4) first sentence NVwKostG does not arise in the same manner. As section 4 (2) NVwKostG contains a separate authorisation to pass ordinances for the federal state internal division of the incurred fees in section 2 of the Lower Saxony Schedule of Fees; pursuant hereto the Federal Ministry of Finance may in agreement with the contributing ministries, also in relation to costs regulated by federal law, determine by way of ordinances that those entities whose departments substantially assisted in the preparation of the official act shall be allocated a share of the collected fees.

44 However, in the case of an invalidity of section 1 of the Lower Saxony Schedule of Fees the assumption of a partial invalidity of the Schedule of Fees and thus an isolated upholding of section 2 would only be possible if this were a separable part of the entire regulation. The remaining regulation would also have to continue to make sense and exist without the - here assumed - void part - principle of divisibility (Grundsatz der Teilbarkeit) - and based on objective evidence it would have to be assumed with certainty that the legislator would have passed the remaining part of the provision without the void part - principle of the assumed will of the legislator (Grundsatz des mutmaßlichen Willens des Normgebers) (BVerwG, judgment of 18 July 1989 - 4 N 3.87 - BVerwGE 82, 225 <230> (…)). Factual findings by the Higher Administrative Court on whether the latter was the case are missing. The parties also had differing opinions on this point in the oral proceedings before the Senate.

45 4. The referral of the legal dispute back to the Higher Administrative Court is also not unnecessary because the Lower Saxony Schedule of Fees is void based on another statutory violation asserted by the claimant and the disputed judgment thus is correct for another reason than the one stated by the Higher Administrative Court (section 144 (4) VwGO).

46 a) The claimant’s submission of a violation of the principle of precision (Bes-timmtheitsgebot) factually contains the objection that the authority to pass an ordinance in section 3 (4) first sentence NVwKostG does not fulfil the require-ments of article 80 GG. This objection is unfounded. Article 80 GG is not directly applicable, as the authorisation to issue an ordinance regulated under federal state law shall be assessed. However, its principles determine in a manner, which is subject to an appeal on points of law, the federal state constitutional law standard of review fixed in article 43 (1) of the Constitution of Lower Saxony (c.f. BVerwG, judgment of 27 June 2013 - 3 C 8.12 - juris pa-ra. 13 with further references). Section 3 (4) first sentence NVwKostG sufficiently determines - in as much as this can be reviewed in an appeal on points of law - according to contents, purpose and extent, when a deviation from fees regulated by federal law is possible in federal state ordinances, by making this deviation dependent upon the more specifically stated legal and actual requirements in the authorisation to pass ordinances. Further details need not to be regulated by parliamentary law. For the assessment of the amount of fees, section 3 (2) NVwKostG contains the necessary specifications.

47 Also the disputed Lower Saxony Schedule of Fees itself is sufficiently defined (c.f. on the standard of review: judgment of 27 June 2013, see above, para. 15 with further references). When applying the relevant interpretation principles, it can be properly gleaned from it in which cases the disputed administrative fee is levied and how its amount is calculated. Pursuant to section 1 (1) first sentence of the Lower Saxony Schedule of Fees, the fee is due for the decision on a permit according to section 29 (3) or an authorisation pursuant to section 46 (1) first sentence no. 5 StVO. Pursuant to section 1 (1) second sentence of this Schedule of Fees, the amount is determined by the time necessary to make this decision. Additionally, pursuant to section 1 (1) fourth sentence of this Schedule of Fees, in the case that the federal state authority is involved a surcharge in the form of a lump sum in the amount of EUR 30 is added. Finally, section 1 (3) of the disputed Lower Saxony Schedule of Fees, in connection with section 4 of the Federal Schedule of Fees states that the party liable for costs is the person who has initiated the official act (generally on the schedule of fees law term of the “initiator”: BVerwG, judgment of 25 August 1999, see above, p. 275 et seq.).

48 b) The claimant’s argument that with the Lower Saxony Schedule of Fees the defendant did not respect the principle of the requirement of a specific enact-ment of a statute (Vorbehalt des Gesetzes) pursuant to article 20 (3) GG also has to be rejected. The statutory authorisation to pass the Lower Saxony Schedule of Fees in section 3 NVwKostG fulfils the requirements necessary according to the so-called essential matters doctrine (Wesentlichkeitstheorie). In the case of a mere determination of the scale of fees, as is discussed here, the deviation from federal law is not reserved for the parliamentary legislator itself. Scales of fees are also otherwise - as the example of the Federal Schedule of Fees proves - generally not determined by formal laws but rather in ordinances.

49 c) Likewise, a violation of the principle of equivalence (Äquivalenzprinzip) as manifestation of the federal constitutional principle of proportionality cannot be discerned. It would be violated if the fee were in a gross imbalance to the value of the services performed by the public authority (established jurisprudence; c.f. BVerwG, judgment of 30 April 2003 - 6 C 5.02 (…) with further references). The claimant does not meet this standard if the claimant reprimands that the fee is not incurred in neighbouring Bremen. The claimant’s further allegation that the fee for the issuance of a permit pursuant to section 29 (3) StVO and an exceptional authorisation pursuant to section 46 (1) first sentence no. 5 StVO is connected to a compensation of advantages is unfounded. According to the structuring of this administrative fee - assessment pursuant to the time spent according to section 1 (1) second sentence of the Lower Saxony Schedule of Fees and the calculation mode for the lump sum, by which pursuant to section 1 (1) fourth sentence of this Schedule of Fees, the fee is increased in the case of involvement of the federal state authority - it aims exclusively at covering the costs incurred by the administrative authorities involved in the issuance of permits as such and for the necessary review of harmlessness of the planned transport route by the federal state authorities in advance.

50 e) Furthermore, the submission of a violation of the Basic Law principles on the financial system (Finanzverfassung) is unfounded. Insofar as the claimant, while referencing the judgment of the Federal Constitutional Court of 19 March 2003 2 BvL 9/98 and others (BVerfGE 108, 1) asserts that for a fee compensating advantages there is no basis for authorisation this is already amiss as the Lower Saxony Schedule of Fees disputed here as shown does not deal with the compensation of advantages but rather solely covering costs. But regardless, a violation of the requirements in the financial system regarding the charging of fees which shall be adhered to according to this judgment cannot be discerned. Though the Federal Constitutional Court determines in this judgment that the levying of non-tax levies is only permissible when certain requirements are fulfilled (see above, p. 15) and that needs a special factual justification both regarding reason and amount (see above, p. 16). However, this judgment also states that there are no general doubts regarding the levying of fees, which are part of the standard levy types, as they are particularly justified due to their compensatory character (see above, p. 17). Furthermore, the Federal Constitutional Court explicitly recognises that the justification of the amount of the fee could result, among others, from the purpose of the fee to cover costs (see above, p. 18 and p. 21). This purpose is - as opposed to the case of the Baden-Württemberg re-registration fee, where the fee in the amount of DM 100 was in contrast to an average amount of work of DM 8.33 per re-registration (see above, p. 23) - generally not missed according to the kind of calculation of the fee. Finally, the requirement of legal clarity in the levying of fees is also fulfilled (see above, p. 20). That the disputed Lower Saxony Schedule of Fees is meant to cover costs can easily be gleaned from the wording of the regulations and the documents regarding the amendment of section 3 NVwKostG, as well as the issuance of the disputed Schedule of Fees.

52 f) The claimant cannot successfully justify the asserted violation of the general principle of equal treatment with the objection that the administrative fee is not levied or a different amount is levied in Bremen. Article 3 (1) GG could only be violated if the same public authority treated comparable facts differently without a sufficient reason (established jurisprudence; c.f. among others BVerfG, (chamber) decision of 29 December 2004 - 1 BvR 113/03 (…) with further refer-ences; BVerwG, judgment of 27 September 2012 - BVerwG 3 C 17.12 (…)).

53 g) Finally, the defendant’s rights based on article 12 and article 14 GG are not infringed. Even if the claimant’s basic right to the freedom of occupation based on article 12 (1) GG could be deemed to have been infringed upon, then in any case it would be considered an interference on the level of practicing an occu-pation. However, it is evident that the imposition of the administrative fee in question with which solely the expenditure for an advantage requested by the claimant should be covered - here, granting a special permit, or, as the case may be, exceptional authorisation - is justified by sufficient reason of the com-mon good. The fact that levying this administrative fee - as the claimant assert-ed again in the statement of defence in the appeal on points of law - has a “chocking effect” has not been sufficiently substantiated by the claimant and is also not evident. A violation of the basic right to property based on article 14 GG is also not specified by the claimant. Even if article 14 GG were affected regarding the protection of the established and practiced business, as the claimant analogously asserts, then this protection cannot go so far as that a person operating a business would have to be spared from the levying of cost covering administrative fees for an administrative act which benefits that person. Thus, the reprimand is also amiss that the Lower Saxony Schedule of Fees had thus been established in an unbalanced manner. (…)