The claimant is the proprietor (Inhaber) of a dwelling located within the territorial jurisdiction of the defendant, a federal state public broadcasting institution (Landesrundfunkanstalt) governed by public law. Referring to the By-law on Licence Fees (Beitragssatzung), the defendant refused to accept payment in cash of the public broadcasting licence fee (Rundfunkbeitrag) as offered by the claimant. The provisions therein specify that the public broadcasting licence fee may be paid only by way of cashless payment, that is by direct debit, individual transfer or standing order. By notice of 21 April 2016, the defendant fixed overdue public broadcasting licence fees for the first quarter of 2016 in the amount of EUR 52.50. By objection notice of 24 May 2016, the defendant rejected the objection (Widerspruch) filed by the claimant.

The claimant brought an action seeking to have annulled the notice of 21 April 2016 fixing the public broadcasting licence fee, as amended by the objection notice of 24 May 2016, subsidiarily, seeking a declaration establishing that he is entitled to pay such public broadcasting licence fees to the Beitragsservice (a joint organisation of Germany's public broadcasting institutions) in cash and further subsidiarily, seeking a declaration to the effect that his licence fees due for the year 2015 in the amount of EUR 214.94 had been discharged by having deposited such amount with the Frankfurt am Main Local Court (Amtsgericht). By judgment of 31 October 2016, the Administrative Court (Verwaltungsgericht) dismissed the action. By judgment of 13 February 2018, the Higher Administrative Court (Verwaltungsgerichtshof) dismissed the appeal on points of fact and law brought by the claimant.

By appeal on points of law, the claimant continues to pursue his request. Upon the claimant's appeal on points of law, the Senate suspended the proceedings by decision of 27 March 2019 (BVerwG 6 C 6.18) and requested a preliminary ruling from the Court of Justice of the European Union (CJEU, hereinafter Court of Justice). The Senate found that it was necessary to clarify whether section 14 (1) second sentence of the Bundesbank Act (BBankG, Gesetz über die Deutsche Bundesbank) was consistent with the exclusive competence that the European Union enjoyed in the area of monetary policy for those Member States whose currency was the euro pursuant to article 2 (1) in conjunction with article 3 (1) (c) and article 127 et seqq. of the Treaty on the Functioning of the European Union (TFEU) and whether EU law contained a rule corresponding to the one under section 14 (1) second sentence BBankG providing for an obligation to accept euro banknotes or whether section 14 (1) second sentence BBankG could be applied to the extent to which and as long as the European Union had not made use of its competence.

In its judgment of 26 January 2021 (joined cases C-422/19 and C-423/19), the Court of Justice has answered the questions submitted. In the proceedings that were continued, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) then dismissed the claimant's appeal on points of law against the judgment of the Hesse Higher Administrative Court of 13 February 2018.

11 The claimant's appeal on points of law is unfounded and is therefore to be dismissed (section 144 (2) of the Code of Administrative Court Procedure (VwGO, Verwaltungsgerichtsordnung)). The judgment on the appeal on points of fact and law violates federal law (section 137 (1) VwGO) insofar as the Higher Administrative Court assumed that the exclusion of the possibility of cash payment stipulated in section 10 (2) of the By-law on Licence Fees of the Hesse Broadcasting Corporation did not violate section 14 (1) second sentence BBankG (1.). However, ultimately, the decision of the Higher Administrative Court proves to be correct (section 144 (4) VwGO) (2.).

12 1. The assumption of the Higher Administrative Court that the exclusion of the possibility of cash payment in section 10 (2) of the By-law on Licence Fees of the defendant was compatible with section 14 (1) second sentence BBankG, since this provision did not contain a prohibition against making different arrangements by means of subordinate legal provisions, violates the law that is subject to an appeal on points of law (section 137 (1) VwGO).

13 Pursuant to section 14 (1) second sentence BBankG, banknotes denominated in euro are the only unlimited legal tender. As the Senate has already explained in more detail in its request for a preliminary ruling (decision of 27 March 2019 - 6 C 6.18 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 165, 99 para. 22 et seqq.), the provision obliges public bodies to accept euro banknotes in the fulfilment of statutorily imposed payment obligations. Contrary to the reasoning relied on by the Higher Administrative Court, exceptions may not be well based on grounds of administrative practicability or cost saving, but require a federal law authorisation. The Senate adheres to this interpretation of section 14 (1) second sentence BBankG which is based on the systematic connection, legislative history as well as spirit and purpose of the provision, even when taking the criticism in this regard into account. (...)

14 2. However, the judgment on the appeal on points of fact and law ultimately proves to be correct after all (section 144 (4) VwGO) since section 14 (1) second sentence BBankG is incompatible with EU law and is therefore not applicable (a)). Even though section 10 (2) of the By-law on Licence Fees of the defendant is not itself fully compliant with requirements under EU law (b)) and in addition partially breaches article 3 (1) of the Basic Law (GG, Grundgesetz) (c)), it still needs to be applied for a transitional period under the proviso that the legal defects are taken into account when applying it (d)). However, this proviso does not apply in the case of the claimant and so ultimately the action is without merit both with regard to the main application and the subsidiary applications.

15 a) Section 14 (1) second sentence BBankG as a provision of federal law cannot be invoked against the exclusion of cash payments in section 10 (2) of the By-law on Licence Fees of the defendant for the reason that it is incompatible with EU law and is therefore not applicable.

16 With its judgment of 26 January 2021 in the joined cases C-422/19 and C-423/19 in reaction to the requests for a preliminary ruling of the Senate, the Court of Justice decided under 1. that article 2 (1) TFEU in conjunction with article 3 (1) (c), article 128 (1) and article 133 TFEU as well as article 16 (1) third sentence of the Protocol (No 4) on the Statute of the European System of Central Banks (ESCB) and of the European Central Bank (ECB) of 7 February 1992 (OJ C 191 p. 68) precludes the adoption of a provision that establishes legal rules governing the status of legal tender of euro banknotes considering its objective and content. EU law, on the other hand, does not preclude a Member State from adopting, in the exercise of a competence that is the Member State's own, such as the organisation of its public administration, a provision which requires that administration to accept payment in cash for the fulfilment of the payment obligations imposed by the administration.

17 The review incumbent upon the Senate as to whether section 14 (1) second sentence BBankG must be interpreted, in the light of its objective and content, as a measure of the kind described by the Court of Justice, that was adopted within the framework of the Member States' own competences (see CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 [ECLI:EU:C:2021:63] - para. 57) leads to the conclusion that the provision interferes with the exclusive regulatory competence of the European Union in the area of monetary policy within the meaning of article 3 (1) (c) TFEU. The reason for this is that neither the legislative materials relating to the Act nor its systematic connection contain any indications that standardising the obligation to accept euro banknotes could have served such regulatory purposes for which the Member States continue to be competent. 

21 b) If section 10 (2) of the By-law on Licence Fees of the defendant therefore does not violate simple federal law because section 14 (1) second sentence BBankG does not comply with EU law, the provision in the By-law does not for its part take full account of the relevant requirements under EU law.

22 According to the decision of the Court of Justice of 26 January 2021 that is binding for the Senate, the status of legal tender only includes a general obligation to accept cash in euros for payment purposes and leaves the Member States the authority to provide for exceptions from this acceptance obligation under certain conditions (aa)). Section 10 (2) of the By-law does largely meet these conditions (bb)). However, there is a violation of EU law in that licence fee payers that do not have access to a current account are disproportionately impaired due to the lack of an exception rule (cc)).

23 aa) Pursuant to article 128 (1) third sentence TFEU and article 16 (1) third sentence of Protocol (No 4) on the Statute of the ESCB and of the ECB, the banknotes issued by the European Central Bank shall be the only such banknotes to have the status of legal tender within the European Union. Accordingly, article 10 second sentence of Council Regulation (EC) No 974/98 of 3 May 1998 on the introduction of the euro (OJ L 139 p. 1) states that banknotes denominated in euro shall be the only banknotes which have the status of legal tender in all participating Member States. According to the decision of the Court of Justice of 26 January 2021 given upon the reference for a preliminary ruling by the Senate, these provisions must be interpreted as not precluding a national provision that excludes the possibility of fulfilling statutorily imposed payment obligations using euro banknotes, provided that (1) this provision does not have the object or effect of establishing legal rules governing the status of legal tender of such banknotes, (2) it does not lead, in law or in fact, to abolishment of these banknotes, in particular by calling into question the possibility, as a general rule, of fulfilling a payment obligation in cash, (3) it was adopted for reasons of public interest, (4) the limitation of payments in cash which this provision entails is appropriate for attaining the public interest objective pursued and (5) it does not go beyond what is necessary in order to achieve this objective insofar as other legal means are available to fulfil the payment obligation. The Court of Justice made it clear in the reasons for its decision that the status of the euro banknotes as legal tender does not require an absolute but only a general acceptance of euro banknotes as legal tender. Furthermore, for the use of the euro as a single currency and, more specifically, for the preservation of the effectiveness as legal tender of cash denominated in euro, it is also not necessary that the EU legislature lay down exhaustively and uniformly the exceptions to this fundamental obligation, provided that every debtor is guaranteed to have the possibility, as a general rule, of fulfilling a payment obligation in cash (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 46 et seqq., 55, 67).

24 The objections of the claimant to this interpretation of EU law by the Court of Justice are irrelevant for the decision the Senate needs to take in the present appeal proceedings on points of law. (...)

25 bb) Section 10 (2) of the By-law on Licence Fees of the defendant, according to which public broadcasting licence fees may only be paid by granting the authority to withdraw the money from an account by way of direct debit or SEPA core direct debit, individual transfers or standing orders, only meets four of the five requirements stated by the Court of Justice for compatibility with EU law of a national provision that provides for an exception from the fundamental obligation to accept euro cash for payment purposes. 

26 (1) Section 10 (2) of the By-law on Licence Fees of the defendant is not a provision that establishes legal rules governing the status of legal tender of euro banknotes considering its objective and content. Instead, what is stipulated are merely payment terms for levying the public broadcasting licence fee, i.e. an actual payment obligation. Contrary to the view of the claimant, the fact that this concerns a great number of payment transactions is irrelevant here. (...) 

27 (2) The provision of section 10 (2) of the By-law on Licence Fees of the defendant does not lead, in law or in fact, to abolishment of euro banknotes. An "abolishment" in the sense of this requirement of the Court of Justice however may not only be assumed in the (almost inconceivable) case that the possibility of using euro banknotes as means of payment disappears completely. This is shown in the explanatory note of the Court of Justice that the possibility of fulfilling a payment obligation in general using such cash must not be called into question. What is decisive therefore is the question of whether, on evaluation, the national provision leads to a reversal of the general rule/exception relationship between the possibility that is guaranteed in principle of fulfilling statutorily imposed payment obligations using euro banknotes and the exclusion of said possibility. In this regard, the Court of Justice only considers the actual regulation (see CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 62). Whether different exclusions or limitations of the possibility of paying in cash have the stated effect when looking at them combined is therefore irrelevant in the present context. Looked at individually, section 10 (2) of the By-law on Licence Fees of the defendant clearly does not have the consequence that the possibility of fulfilling a payment obligation using euro cash no longer is the rule but only an exception. 

28 (3) Section 10 (2) of the By-law on Licence Fees of the defendant was adopted for public interest reasons. This requirement needs to be understood in the broad sense, the reason being that the Court of Justice clearly distinguishes between the term "public reasons" or "reasons of public interest" taken from the English and French version of recital 19 of Council Regulation (EC) No 974/98 on which the Court of Justice bases its decision and the more narrow term "reasons of public policy", to which the German version refers at this point (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 65 et seq.). Within the framework of its clarification provided to guide the national court in its decision, the Court of Justice explained above and beyond this that it is indeed in the public interest that monetary debts to public authorities may be honoured in a way that does not involve those authorities in unreasonable expense which would prevent them from providing their services cost-effectively. It must therefore be held that the public interest reason relating to the need to ensure fulfilment of a statutorily imposed payment obligation is capable of justifying a limitation on cash payments, in particular where the number of licence fee payers from whom the debt has to be recovered is very high (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 73 et seq.). This clarification indicates that, in the present context, the Court of Justice considers both cost savings as well as efficient enforcement of the levying of fees to be public interest reasons. 

31 (4) The limitation of the cash payment option by section 10 (2) of the By-law on Licence Fees of the defendant is both suitable and necessary to achieve the objectives stated. Since it enables the administration to avoid having to bear an unreasonable financial burden given the cost that would be involved in the widespread establishment of a procedure that allows all licence fee payers to pay the public broadcasting licence fee in cash (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 76). 

32 cc) However, a violation of EU law lies in the fact that the exclusion of the cash payment possibility in section 10 (2) of the By-law on Licence Fees of the defendant disproportionately impairs those licence fee payers that do not have access to a current account, due to the lack of an exception rule. 

33 (1) In its judgment of 26 January 2021, the Court of Justice, in its response to the second question referred, made the permissibility of a national provision that excludes the possibility of fulfilling a statutorily imposed payment obligation using euro banknotes subject to the further condition that the limitation of cash payments may not go beyond what is necessary in order to achieve the objective pursued insofar as other lawful means of fulfilling the payment obligation exist. This condition is not met simply because the national provision provides for other lawful means of payment apart from cash. Despite the wording "insofar as it does not go beyond" which seems to limit the scope of assessment, the Court of Justice demands a comprehensive assessment of proportionality. This is evident simply from the reference to its established case-law, according to which the principle of proportionality requires that the measures concerned are suitable for attaining the legitimate objectives pursued by the legislation at issue and that they do not go beyond what is necessary in order to achieve those objectives (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 70). 

34 The principle of proportionality has also always served in particular to protect individual rights including the fundamental rights guaranteed by EU legal order (see for instance CJEU, judgment of 19 June 1980 - C-41/79 [ECLI:EU:C:1980:163], Testa - para. 18, 21). In this sense, the Court of Justice in particular focusses on the reasonableness of the exclusion of cash for licence fee payers in its fifth requirement, after having assessed its suitability and necessity previously under the fourth requirement. It emphasises, in particular, that the lawful alternative means of payment of the public broadcasting licence fee may not be readily accessible to everyone liable to pay it, which would entail providing for those without access to such means of payment to be able to pay in cash (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 77). These deliberations are based on the opinion of the Advocate General who, in connection with the principle of proportionality, specifically emphasised the concerns of vulnerable persons who do not have access to basic financial services and the social inclusion element of the use of cash (opinion of the Advocate General Giovanni Pitruzzella delivered on 29 September 2020 in the joined cases C-422/19 and C-423/19 [ECLI:EU:C:2020:756], para. 130 et seqq., 133 et seqq., 138).

35 (2) In view of this, the conclusion must be that the provision of section 10 (2) of the By-law on Licence Fees of the defendant disproportionately impairs the individual interests protected by EU law. This is because it does not provide for any exceptions for those licence fee payers who cannot make use of the means of payment stipulated in the provision since they do not have access to a current account. It is a well-known fact that a not only insignificant number of people do not have their own current account. The Senate refers to the 2017 ECB study cited in the opinion of the Advocate General Giovanni Pitruzzella delivered on 29 September 2020 in the joined cases C-422/19 and C-423/19 (see above, para. 136 with footnote 76) according to which 0.96% of German households and 3.64% of households in the euro area overall did not have access to banking/financial services at that time ("unbanked households", see Ampudia/Ehrmann, "Financial inclusion: what's it worth?", ECB Working Paper Series No 1990, January 2017, Table 1; https://www.ecb.europa.eu/pub/pdf/scpwps/ecbwp1990.en.pdf). However, since the existence of an account with a credit institution or a similar financial institution is currently an indispensable requirement for using money other than in its physical form (namely, cash) (see opinion of the Advocate General Giovanni Pitruzzella delivered on 29 September 2020 in joined cases C-422/19 and C-423/19, para.135), the persons stated depend on the possibility of fulfilling statutorily imposed payment obligations using euro banknotes. 

37 Contrary to the view of the defendant, licence fee payers that do not have access to a current account can also not be referred to the possibility of paying the fee in cash into the fee processing account of ARD/ZDF/Deutschlandradio at a credit institution, since this kind of payment is associated with considerable extra costs for the licence fee payers concerned. (...) The additional transaction costs for cash paid into the account are clearly above 10 percent of the licence fee receivable that is to be fulfilled. Such an additional charge is incompatible with the principle of proportionality under EU law. (...)

39 c) Furthermore, section 10 (2) of the By-law on Licence Fees of the defendant does not comply fully with national constitutional law. The provision of the By-law, that needs to be assessed based on the standards of the basic rights of the Basic Law regardless of the EU law context (aa)), does not infringe the guarantee of property (bb)) or occupational freedom (cc)), general freedom of action (dd)) or the right to informational self-determination (ee)). Due to the lack of an exception rule for those licence fee payers that do not have access to a current account, it is, however, incompatible with article 3 (1) GG (ff)). An interpretation in conformity with the constitution is not possible (gg)). 

40 aa) In the present case constellation of a non-exclusive competence of the EU for the limitation of cash payments falling under monetary policy, it is not fundamental rights under EU law, i.e. specifically the Charter of Fundamental Rights of the European Union, that are the immediate criterion to be used in examination, but the basic rights of the Basic Law.

41 Since the two decisions of November 2019 relating to the "right to be forgotten", it has been clarified in the jurisprudence of the Federal Constitutional Court (BVerfG, Bundesverfassungsgericht) that acts of German public authorities must be examined based on the fundamental rights of the Charter of Fundamental Rights of the European Union insofar as the legal question to be decided is fully determined by EU law; otherwise the basic rights of the Basic Law are examined and construed in the light of the Charter of Fundamental Rights of the European Union (BVerfG, decision of 6 November 2019 - 1 BvR 16/13 - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 152, 152 para. 42 - Right to be forgotten I; decision of 6 November 2019 - 1 BvR 276/17 -‌ BVerfGE 152, 216 para. 42 et seqq. - Right to be forgotten II). (...)

42 Taking this as the starting point, section 10 (2) of the By-law on Licence Fees of the defendant must be examined based on the standards of the basic rights under the Basic Law. The regulatory area that is in question here is only fully determined by EU law insofar as the Member States in the euro area are prevented, due to the exclusive competence of the EU in the field of monetary policy, from adopting provisions that in terms of their objective and content establish legal rules governing the status of legal tender of euro banknotes. Above and beyond that, however, according to the decision of the Court of Justice of 26 January 2021, the Member States continue to be entitled, in exercising a competence that is their own, such as organisation of their public administration, to adopt provisions that oblige public authorities to accept fulfilment in cash of payment obligations imposed by the administration or, conversely, to exclude the possibility of fulfilling a statutorily imposed payment obligation using euro banknotes. (...)

43 bb) The obligation to make cashless payment of the public broadcasting licence fee as stipulated in section 10 (2) of the By-law on Licence Fees of the defendant does not constitute an interference with the scope of protection of the guarantee of property according to article 14 (1) GG. The guarantee of property does indeed also ensure the right to own, use, manage and dispose of money (see BVerfG, decisions of 31 March 1998 - 2 BvR 1877/97, 50/98 - BVerfGE 97, 350 <370> and of 5 February 2002 - 2 BvR 305, 348/93 - BVerfGE 105, 17 <30>). However, by excluding the possibility of cash payments in a certain area, the owner of the money is not deprived of the ownership of banknotes and coins nor is the owner impaired in the use of the money, mainly use thereof as a means of exchange and store of value (...). (...) 

44 cc) Similarly, the conditions for an interference with the scope of protection of the basic right under article 12 (1) GG have not been met. There is no such interference due to the very fact that a legal provision, its application or other sovereign measures that do not relate to the professional activity itself may have effects on the professional activity under certain circumstances. (...)

45 dd) The basic right to the free development of one's personality (article 2 (1) GG) is similarly not infringed by the exclusion of the cash payment possibility in section 10 (2) of the By-law on Licence Fees of the defendant. The fact that the holders of basic rights are forced, due to limitations on using cash, to enter into agreements with companies that clear cashless payments could indeed be considered to be an interference with the freedom not to contract which is protected as part of private autonomy. In addition, the basic right enshrined in article 2 (1) GG comprehensively guarantees the general freedom of action within the framework of the limitations provided for in the second half-sentence. If special payment terms are mandatory for fulfilment of a fee receivable, this therefore also represents an interference with the scope of protection of article 2 (1) GG in this regard. However, this interference is not very significant and is also justified from the perspective of constitutional law by the aforementioned reasons of public interest. 

46 ee) Nor does the exclusion of the cash payment possibility in section 10 (2) of the By-law on Licence Fees of the defendant infringe the basic right of the licence fee payers to informational self-determination (article 2 (1) in conjunction with article 1 (1) GG).

47 The claimant correctly refers to the fact that the settlement of monetary debts by means of direct debit, core direct debit or wire transfer is inevitably associated with the processing of personal data by intermediaries. (...) In the jurisprudence of the Federal Constitutional Court it is generally accepted that the collection of account content and account movement data interferes with the general right of personality manifested as the right to informational self-determination. Such account information can be significant for protecting the personality of the person concerned and is protected by the basic right under article 2 (1) in conjunction with article 1 (1) GG (BVerfG, judgment of 27 February 2008 - 1 BvR 370, 595/07 - BVerfGE 120, 274 <346>). If a large amount of different payment data is collected and combined with other data, there is a risk of producing meaningful personality and movement profiles. Holders of basic rights who fear the evaluation of their payment data might therefore feel the need to adapt the use of their freedom that depends on their use of money (...). The stock of payment data available at private financial services providers to which the State may have access under certain conditions based on statutory authorisations for data collection and processing increases with the number and scope of limitations on cash payment possibilities that may be added in the future. Due to this summation effect, one has to consider that starting from a certain threshold it becomes necessary for the parliamentary legislature to regulate the matter based on the principles of the so-called essential matters doctrine (Wesentlichkeitstheorie) of the Federal Constitutional Court (see BVerfG, decision of 28 October 1975 - 2 BvR 883/73 and 379, 497, 526/74 - BVerfGE 40, 237 <249 et seq.>).

48 However, the intensity of the interference with the basic right of article 2 (1) in conjunction with article 1 (1) GG associated with the obligation to use cashless payment procedures under section 10 (2) of the By-law on Licence Fees of the defendant needs to be qualified as low. Unlike, for example, a general upper limit for all cash payments, the exclusion of cash payments at issue here only relates to a certain statutorily imposed payment obligation. First and foremost, though, fulfilment of the obligation to pay public broadcasting licence fees is from the outset not linked to a use of a freedom that is dependent on the use of money. 

50 In view of its insignificance the interference with the basic right enshrined in article 2 (1) in conjunction with article 1 (1) GG is automatically justified for the aforementioned reasons of cost savings and efficient enforcement of the levying of fees.

51 ff) However, section 10 (2) of the By-law on Licence Fees of the defendant is not compatible with article 3 (1) GG since it lacks an exception rule for those licence fee payers that do not have access to a current account.

53 Article 3 (1) GG requires that all persons shall be equal before the law. From this follows the requirement to treat substantially equal things equally and substantially unequal things unequally. Due to the fact that section 10 (2) of the By-law on Licence Fees of the defendant does not provide for any exceptions to the exclusion of cash payments for those licence fee payers who cannot make use of the means of payment stipulated in the provision since they do not have access to a current account, so that they are left with only the possibility of paying the fee in cash into the fee processing account of ARD/ZDF/Deutschlandradio at a credit institution, which is associated with considerable extra costs, substantially unequal circumstances are treated equally. This equal treatment leads to the group of persons concerned being disadvantaged compared to all other licence fee payers. The discrimination of the group of licence fee payers that do not have access to a current account compared to those licence fee payers that hold such an account is not justified by a sufficient factual reason. In particular, it is not justified by the possibility of generalising and standardising for reasons of administrative practicability (see BVerfG, judgment of 28 April 1999 - 1 BvL 11/94, 33/95, 1 BvR 1560/97 - BVerfGE 100, 138 <174>; decision of 16 March 2005 - 2 BvL 7/00 - BVerfGE 112, 268 <280>). Taking the principle of proportionality into account, for this it would be necessary that the hardships associated with the standardisation could only be avoided with difficulty, that they only affected a relatively small number of people and the infringement of the right to equality was not very severe (see BVerfG, judgment of 28 April 1999 ‌- 1 BvL 11/94, 33/95, 1 BvR 1560/97 - see above <174>; chamber decision of 19 January 2022 - 1 BvR 1089/18 - (...) para. 24). 

54 These requirements, which must all be met at the same time, are not met. For the group of licence fee payers not having access to a current account, there is a severe violation of the right to equality, which must be assessed specifically in light of the fee burden (see BVerfG, chamber decision of 19 January 2022 - 1 BvR 1089/18 - (...) para. 25). As already stated, the additional transaction costs for cash paid into account are clearly above 10 percent of the licence fee receivable that is payable in the private sphere. Such an additional burden, which other licence fee payers do not have to bear, in any case exceeds the limit of what has to be accepted for reasons of administrative practicability and cost savings.

55 gg) An interpretation of section 10 (2) of the By-law on Licence Fees of the defendant in conformity with the constitution does not come into question simply because the clear wording of the provision conflicts with this. (...) 

56 d) Regardless of the violations that have been found of the requirements under EU law for limitations on cash payments in fulfilment of statutorily imposed payment obligations as well as of article 3 (1) GG, application of the provision in section 10 (2) of the By-law on Licence Fees of the defendant needs to be continued on a transitional basis until a new provision is adopted. This applies under the proviso that the defendant makes it possible for licence fee payers that demonstrably cannot open a current account with any private or public-sector credit institution to pay the licence fees in cash at no additional costs. The judicial order for the provision of the By-law to continue to be valid for a transitional period subject to the stated proviso complies with the principle of the primacy of EU law (aa)) and also does not exceed the decision-making powers granted to the administrative courts by law (bb)).

57 aa) Subject to the condition that licence fee payers that demonstrably cannot open a current account with any private or public-sector credit institution are enabled to pay the licence fee in cash at no additional costs, the continued application of the provision of section 10 (2) of the By-law on Licence Fees of the defendant for a transitional period until a new provision that complies with EU law is adopted (...) does not violate the principle of the primacy of EU law.

58 According to established case-law of the Court of Justice, the principle of the primacy of EU law requires all Member State bodies to give full effect to the various EU provisions, with the law of the Member States not being allowed to undermine the effect accorded to those provisions in the territory of those States. The effects of the principle of the primacy of EU law are binding on all the bodies of a Member State (see CJEU, judgment of 21 December 2021 - C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 [ECLI:EU:C:2021:1034], Euro Box Promotion et al. - para. 250 et seq.). The full effectiveness of the EU requirements applicable here that result from article 128 (1) third sentence TFEU as well as article 16 (1) third sentence of the Protocol on the Statute of the ESCB and of the ECB and article 10 second sentence of Council Regulation (EC) No 974/98 is not impaired by the continued application of the provision of section 10 (2) of the By-law on Licence Fees of the defendant for a transitional period, if it is ensured that the conditions imposed by the Court of Justice in its judgment of 26 January 2021 in reaction to the questions submitted for a preliminary ruling by the Senate are fully adhered to.

59 The decision of the Court of Justice does not make an explicit statement concerning the question of the transitional application of section 10 (2) of the By-law on Licence Fees of the defendant. However, the Court of Justice said that it was for the referring court to ascertain whether a limitation on the cash payment possibility was proportionate with regard to the objective of actually collecting the public broadcasting licence fee, in particular in the light of the fact that the lawful alternative means of payment of the public broadcasting licence fee may not be readily accessible to everyone liable to pay it, which would entail providing for those without access to such means of payment to be able to pay in cash (CJEU, judgment of 26 January 2021 - joined cases C-422/19 and C-423/19 - para. 77). The last half-sentence makes clear that the Court of Justice does not require a cash payment possibility in general but exclusively for persons that do not have access to other - cashless - means of payment. If the provision concerning the payment terms in section 10 (2) of the By-law on Licence Fees of the defendant, the rest of which is not objectionable under EU law aspects, continues to be applied for a transitional period with the proviso as ordered by the Senate that takes account of the legal positions protected by EU law of the limited group of people requiring protection who have no account, this does not impair the full effectiveness of the legal provisions under EU law that apply directly. On the contrary, it is precisely this that creates a legal situation compliant with EU law.

60 bb) Nor does the judicial order for the temporary continued validity of the provision in section 10 (2) of the By-law on Licence Fees of the defendant that is not fully compliant with article 3 (1) GG (and cannot therefore also be interpreted in conformity with the constitution) under the stated proviso exceed the decision-making powers granted to the administrative courts by law.

61 In principle, administrative courts are not entitled to order the continued validity of unconstitutional provisions in by-laws for a limited period of time (BVerwG, judgment of 27 November 2019 - 9 C 4.19 - BVerwGE 167, 137 para. 20 referring to BVerfG, decision of 11 December 2018 - 2 BvL 4, 5/11, 4/13 - BVerfGE 150, 204 para. 70). It is therefore recognised in the jurisprudence of the Federal Administrative Court concerning the law relating to public charges, that administrative courts are obliged in accordance with section 113 (1) first sentence VwGO, to lift tax assessments contested if they are not founded on a valid by-law and therefore violate the rights of the tax debtors. Only in exceptional cases where the declaration of the by-law as invalid or the lifting of the tax assessment issued based on such by-law would result in a "state of emergency" could something different could apply (BVerwG, judgment of 27 November 2019 - 9 C 4.19 - see above para. 20 with further references).

62 However, these principles cannot be applied to the present constellation, since levying the public broadcasting licence fee is based on a provision that is essentially not objectionable under constitutional law - apart from the fact that proprietors of secondary dwellings were included in the scope of licence fee payers (see BVerfG, judgment of 18 July 2018 - 1 BvR 1675/16, 745, 836, 981/17 - BVerfGE 149, 222). For the most part, there are also no concerns from the perspective of constitutional law concerning the payment terms regulated in section 10 (2) of the By-law on Licence Fees of the defendant which is based on the authorisation stipulated in section 9 (2) first sentence no. 2 of the State Treaty of the Federal States on Public Broadcasting Licence Fees (RBStV, Rundfunkbeitragsstaatsvertrag). Only with regard to a very limited group of licence fee payers does the application of the provision in the By-law lead to an infringement of the principle of equal treatment (article 3 (1) GG) due to a conclusive requirement for cashless payment methods that does not allow for exceptions. Against the backdrop of these peculiarities, it is appropriate to use the principles on which the Senate regularly bases its decisions in comparable case constellations, particularly in the law relating to examinations. According to these principles, a transitional application of invalid provisions in by-laws and ordinances is always considered if and insofar as effective protection of basic rights or the proper functioning of public administration cannot be ensured for a transitional period other than by applying the provisions (see BVerwG, judgments of 29 July 2015 - 6 C 35.14 -‌ BVerwGE 152, 330 para. 46 et seqq., of 15 March 2017 - 6 C 46.15 - (...) 4 para. 29, of 10 April 2019 - 6 C 19.18 - BVerwGE 165, 202 para. 20 and of 28 October 2020 - 6 C 8.19 - BVerwGE 170, 1 para. 24; (...)).

63 Based on this, in light of the potential threat to the effective levying of the public broadcasting licence fee by providing a comprehensive possibility of cash payment, at least the aspect of effective protection of basic rights justifies the transitional application of the provision in section 10 (2) of the By-law on Licence Fees of the defendant subject to a proviso that takes the requirements of the principle of equal treatment in certain exceptional cases into account. This is because according to the jurisprudence of the Federal Constitutional Court the state has a duty to provide public broadcasters with adequate funding, which arises from the freedom of broadcasting under article 5 (1) second sentence GG; this basic right conferrs upon public broadcasters a corresponding right to receive such funding (see BVerfG, judgments of 22 February 1994 - 1 BvL 30/88 - BVerfGE 90, 60 <91> and of 11 September 2007 - 1 BvR 2270/05, 809, 830/06 - BVerfGE 119, 181 <224>; decision of 20 July 2021 - 1 BvR 2756/20, 2775/20 and 2777/20 - BVerfGE 158, 389 para. 67). 

64 Based on the plausible statements of the defendant, if cash payments were made possible in general, the mass procedure of collecting due and payable public broadcasting licence fees could only be handled with an extremely large amount of personnel and at great expense. (...) The funds needed to fulfil the broadcasting task would therefore probably not be fully available to the defendant for an uncertain period of time if section 10 (2) of the By-law on Licence Fees of the defendant could no longer be applied in general, which would be contrary to the guarantee of basic rights enshrined in article 5 (1) second sentence GG. On the other hand, as stated, the exclusion of the cash payment possibility associated with the application of the provision in section 10 (2) of the By-law on Licence Fees of the defendant does not lead to the establishment of legal rules governing legal tender that violate EU law nor to burdens that would be relevant from a basic rights perspective - apart from the aforementioned cases of those licence fee payers that involuntarily do not have access to an account.

65 e) The claimant does not belong to the group of people for which the defendant must make it possible to pay the public broadcasting licence fee in cash without additional cost, according to the stated proviso issued by the Senate, because he has (...) a current account. Since, therefore, in his case section 10 (2) of the By-law on Licence Fees of the defendant must be applied for payment of the public broadcasting licence fee during the transitional period that is relevant here, the action is without merit both with regard to the main application (aa)) and the subsidiary applications (bb) and cc)).

66 aa) If section 10 (2) of the By-law on Licence Fees of the defendant is applicable in the case of the claimant temporarily until a new provision is adopted, the main application aimed at annulling the defendant's notice of 21 April 2016, fixing the public broadcasting licence fee, as amended by the objection notice of 24 May 2016, cannot be successful. (...)

67 bb) The action also remains unsuccessful insofar as the claimant subsidiarily applied for a declaratory judgment stating that he is entitled to pay public broadcasting licence fees of the defendant that have already been claimed or are still to be claimed in cash to the Beitragsservice. (...) However, the application for a declaratory judgment is also unfounded, since the claimant as the holder of a current account does not belong to the group of those licence fee payers for which the defendant must make payment of the public broadcasting licence fee possible in cash at no additional cost in accordance with the proviso attached by the Senate to the order for transitional application of section 10 (2) of the By-law on Licence Fees of the defendant.

68 cc) Finally, the additional subsidiary application, by which the claimant is seeking a declaration to the effect that his licence fee debt for the period from 1 January 2015 until 31 December 2015 in the amount of EUR 214.94 owed to the defendant ceased to exist as a result of having deposited such amount for the defendant with the Frankfurt am Main Local Court, can also not be successful. (...) Even this subsidiary application for a declaratory judgment is, however, unfounded. The licence fee obligation of the claimant for 2015 did not cease as a result of the fact that it was deposited. According to section 372 first sentence of the German Civil Code (BGB, Bürgerliches Gesetzbuch), money may be deposited if the obligee is in default of acceptance. This does not apply here since the defendant was not obliged in the case of the claimant to accept a cash payment for the reasons outlined.