Judgment of 29 March 2019 -
BVerwG 9 C 4.18ECLI:DE:BVerwG:2019:290319U9C4.18.0
Please note that the official language of proceedings brought before the Federal Administrative Court of Germany, including its rulings, is German. This translation is based on an edited version of the original ruling. 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. Numbers of paragraphs that have completely been omitted in the edited version will not be shown.
When citing this ruling it is recommended to indicate the court, the date of the ruling, the case number and the paragraph: BVerwG, judgment of 29 March 2019 - 9 C 4.18 - para. 16.
Obligation of an organiser to pay fees for special police efforts made at a high-risk event
1. Fulfilling the tax liability, as determined by the ability to pay principle, does not entitle to free use of state benefits, the provision of which is subject to specific attribution. Anyone making particular use of a public good (in this case state security precautions) for the purpose of making a profit, may in principle be charged a fee for this.
2. A provision of federal state law (here section 4 (4) BremGebBeitrG) which, in order to cover the additional expenses, imposes a fee on the organiser of a major profit-oriented event foreseeably requiring the deployment of additional police forces in territorial and timely connection with such event as a result of experience predicting acts of violence, is in principle consistent with the tax state principle (Steuerstaatsprinzip; article 104a et seqq. GG).
3. Such a fee, which is not claimed from the organiser as the person causing a disturbance of public security but exclusively as the beneficiary of an increased police presence, does not conflict with police law. However, in order to avoid an impermissible excess cover, one must avoid "double billing" to both the organiser and to the person causing the disturbance.
4. The organiser's fee is in compliance with article 12 (1) GG if, taking into account the nature of the event, such fee is regularly in a reasonable relation to the economic result that the organiser can achieve, also thanks to the increased use of police forces.
5. There is no need for a tax-financed deduction from chargeable expenses, even when taking into account the public interest in preventing threats, if the additional security effort is required exclusively as a result of a profit-oriented private event.
6. With respect to the requirement of specificity of the provision, a fee with the direct purpose of covering expenses does not necessarily require the fee rate to be determined in the constituent elements of the provision. Sufficient specificity may also be achieved by stipulating rules for the assessment of such expenses.
Sources of law
Basic Law GG, Grundgesetz articles 3, 12, 14, 19, 104a et seqq. Bremen Fees and Contributions Act BremGebBeitrG, Bremisches Gebühren- und Beitragsgesetz sections 4 (4), 13 (4)
Summary of the facts
The claimant, the German Football League (DFL GmbH, Deutsche Fußball Liga GmbH), is challenging a fee notice issued by the defendant Free Hanseatic City of Bremen for a police operation in connection with a so-called high-risk football match.
The claimant is a subsidiary of the German Football Association (DFB e.V., Deutscher Fußball-Bund e.V.). It is responsible for the organisation of the Bundesliga football matches and the marketing of the exploitation rights to the matches.
At the end of 2014, a law amending the Bremen Fees and Contributions Act (BremGebBeitrG, Bremisches Gebühren- und Beitragsgesetz) came into force in the Free Hanseatic City of Bremen, a German federal state. It has the following wording: A fee shall be charged to organisers hosting a profit-oriented event in which more than 5,000 persons are expected to participate at the same time if additional police forces are foreseeably required at the venue, along the access or exit routes or otherwise in the surrounding area as a result of experience predicting acts of violence before, during or after the event. The fee shall be calculated on the basis of the additional expenses incurred as a result of providing additional police forces. The organiser must be notified prior to the event of the prospective obligation to pay such fee. Such fee may be calculated based on the actual additional costs incurred or as a flat fee.
In a letter dated 24 March 2015, the defendant Free Hanseatic City of Bremen informed the claimant Deutsche Fußball Liga GmbH that the requirements of the new law had been met for the forthcoming Bundesliga match SV Werder Bremen versus Hamburger SV at the Weser Stadium in Bremen on 19 April 2015.
After the game had taken place - secured by the deployment of around 1,000 local and external police officers - the defendant issued the announced fee notice amounting to approximately EUR 425,000. The police forces deployed on the basis of the current development of the situation were given as the reason for the fee amount charged. The threat assessment had been based on the fundamental aversion and even hostility of the fans of both clubs, the high number of guest fans experienced in the past and the serious violent conflicts between members of both fan groups in the past seasons.
In response to the action brought by Deutsche Fußball Liga GmbH, the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) essentially confirmed the lawfulness of the challenged fee notice in the final instance.
21 (...) With regard to the limiting and protective function of constitutional law governing public finances (Finanzverfassungsrecht; article 104a et seqq. Basic Law (GG, Grundgesetz)) and in order to ensure equal burdens for those liable to pay charges (article 3 (1) GG), the levying of charges other than taxes requires a special objective justification going beyond the purpose of raising the revenue (established jurisprudence, see Federal Constitutional Court (BVerfG, Bundesverfassungsgericht), decision of 17 January 2017 - 2 BvL 2/14 et al. - Rulings of the Federal Constitutional Court (BVerfGE, Entscheidungen des Bundesverfassungsgerichts) 144, 369 para. 62 with further references). Under constitutional law, there is no exhaustive definition of the term fees. However, in order to charge a fee, federal law requires that there is a special relationship between the debtor of the fee and the cost-incurring service provided by the administration, which allows the official act to be attributed to him individually. This individual attributability justifies the fact that the official act is not financed from general tax revenues, but wholly or in part to the detriment of the debtor through special charges (established jurisprudence, see BVerfG, chamber decision of 8 May 2008 - 1 BvR 645/08 - (...); BVerwG, judgments of 25 August 1999 - 8 C 12.98 - Rulings of the Federal Administrative Court (BVerwGE, Entscheidungen des Bundesverwaltungsgerichts) 109, 272 <276>, of 27 September 2017 - 6 C 32.16 - BVerwGE 160, 54 para. 19 and of 16 November 2017 - 9 C 15.16 - BVerwGE 160, 334 para. 11).
22 Taking these criteria into account, with regard to fees, the legislature has wide scope for decision-making and action as to which individually attributable public services it wishes to subject to an obligation to pay fees, which fee scales and fee rates it wants to establish for this and which purposes it intends to pursue with such fee regulation beyond cost recovery, such as limited behaviour control in certain fields of activity (established jurisprudence, see BVerfG, judgment of 19 March 2003 - 2 BvL 9/98 et al. - BVerfGE 108, 1 <19>; BVerwG, judgment of 4 August 2010 - 9 C 6.09 - BVerwGE 137, 325 para. 17; (...)).
26 However, the public service a fee is linked to, must be a special service that can be clearly delimited from general, tax-financed public services (established jurisprudence, see BVerfG, chamber decision of 11 August 1998 - 1 BvR 1270/94 - (...); BVerwG, judgment of 16 November 2017 - 9 C 15.16 - BVerwGE 160, 334 para. 11 with further references).
27 Such a delimitable special state service is present here. Contrary to the claimant's view, the organiser is not made to (proportionately) participate in the "costs of police threat prevention as such". Rather, the fee is levied for the additional expenses resulting from the additional provision of police forces on the occasion of a specific event, for which special security risks are forecast on the basis of actual experience. It is thus neither about general police expenditure of the Bremen police nor about basic police expenditure for particularly risky events being just within the scope of the average demands made on the state security apparatus at such events. Rather, it is exclusively about special expenses going beyond this, which are required in accordance with police assessment of the situation on the occasion of a certain high-risk event, which must moreover be aimed at making a profit.
28 Under constitutional law, such additional costs do not necessarily have to be charged to the taxpayer. Rather, the legislature may separate such a special service of police security precaution from the general costs of threat prevention and - to the extent that the other prerequisites required, in particular attributability, are met - subject it to the obligation to pay fees.
29 One cannot challenge such delimitation by invoking that, as a matter of principle, the constitutional order had a blocking effect on fees in the performance of police tasks. A thesis to this effect has become obsolete (...), at the latest, since the highest court ruling on the flight safety fee (BVerfG, chamber decision of 11 August 1998 - 1 BvR 1270/94 - (...)). The objection that the threat prevention measure subject to the obligation to pay fees predominantly served the interest of the general public fails to persuade as well; that is, because almost all acts subject to a fee are also or predominantly carried out in the public interest (BVerfG, chamber decision of 11 August 1998 - 1 BvR 1270/94 - (...); BVerwG, judgment of 3 March 1994 - 4 C 1.93 - BVerwGE 95, 188 <201>). Nor does the fact that the service covered by section 4 (4) second sentence BremGebBeitrG (additional expenses due to the supplementary provision of police forces) consists of a large number of individual measures and in particular also includes costs for reserve forces which are merely held available - but not actually used - preclude them from being subjectable to fees. (…)
32 The special additional police expenses are also to be particularly attributed to the organiser of a profit-oriented event. This is because the latter derives a special (economic) benefit from the risk minimisation brought about by the additional police deployment. The organiser of a major high-risk event is dependent on increased security precautions, not only at the venue itself and during the actual duration of the event, but also in territorial and timely connection with such event (...). Since, without the additional police presence, there would be a risk of the participants not getting to and back from the event safely. Also, if damages to the health and property of third parties were caused, such damages would ultimately fall back on the organiser and would reduce his reputation in public. Ultimately, there would even be reason to fear that acts of violence could escalate to such an extent that the event could not be carried out as planned or could not be carried out at all. Since the obligation to pay fees under the Bremen federal state law only applies to profit-oriented events, the organiser does not only derive an intangible benefit - which is difficult to assess - but also and especially an economic benefit from the increased police deployment. The success is also based on the safety of the event.
34 Finally, such attribution does not lead to "throwing the doors wide open" to subject police activity as such to charges (...). Although - as described above - the legislature has a broad scope for action, the constitutional permissibility of a new fee regulation must be examined in each individual case. The entire police work can never be subject to charges from the outset as it lacks delimitability.
83 The Higher Administrative Court (Oberverwaltungsgericht) did not make any material error in so far as it regarded the claimant to be the (co-)organiser of the Bundesliga match of 19 April 2015. From a federal law point of view, there is no objection to be raised against the legal approach of the Higher Administrative Court assuming that the claimant and the football club SV Werder Bremen (...) are co-organisers, if the relevant advantage under the fee regulation can be attributed to both (co-)organisers. This is to be assumed pursuant to the findings of the Higher Administrative Court (...).