Press release no. 26/2019 of 29 March 2019
Bremen police fee for high-risk events is in principle lawful
Generally, a fee may be charged for special police expenses made on the occasion of a commercial high-risk event. This was decided by the Federal Administrative Court (BVerwG, Bundesverwaltungsgericht) in Leipzig today.
Pursuant to section 4 (4) of the Bremen Fees and Contributions Act (BremGebBeitrG, Bremisches Gebühren- und Beitragsgesetz) organisers of a profit-oriented major event shall - under certain circumstances - be charged a fee. This requires acts of violence to be expected from experience in territorial or timely connection with such event, foreseeably requiring the deployment of additional police forces. Such fee shall be calculated on the basis of more detailed conditions depending on the additional expenses incurred by the police.
In this case, the fee was claimed from the limited liability company German Football League (DFL GmbH, Deutsche Fußball Liga GmbH) as debtor. As subsidiary, it manages the operational business of the registered association DFL (DFL e.V.), which groups together licensed clubs and corporations of the Bundesliga and the Bundesliga 2. By filing this action, the DFL GmbH is challenging a fee notice issued by the Free Hanseatic City of Bremen for approximately EUR 425,000. The claim concerns a police operation carried out with considerable additional forces on the occasion of a football Bundesliga match on 19 April 2015 at the Weser Stadium in Bremen between the SV Werder Bremen and the Hamburger SV. About three weeks prior to the match, the claimant had been informed that, according to knowledge about the situation acquired by the police, there was a high probability of violent clashes on the match day.
The Bremen Administrative Court (Verwaltungsgericht) allowed the action on the grounds that the constituent elements of the fee provision were too unspecific. The Higher Administrative Court (Oberverwaltungsgericht), on the other hand, deemed the provision to be constitutional and, on this basis, dismissed the action against the fee notice. The Federal Administrative Court now essentially confirmed the legal position of the Higher Administrative Court.
When introducing a fee, the legislature must always take into account that the person liable to pay such a fee is also a taxpayer. Therefore, such fee requires special justification. In this case, such justification exists due to the fact that the police have to put in considerable additional effort precisely on the occasion of a commercial high-risk event. This additional effort may be attributed to the organiser. Because the organiser is dependent on the additional police presence to run the event smoothly. The fee is not claimed from the organiser as the person causing a disturbance of public security, but rather as the beneficiary of particularly extensive police security precautions.
Uncertainties, existing due to the requirements of the constituent elements of the fee provisions that are subject to interpretation and, in particular, with regard to the additional police expenses incurred and thus the amount of the fee, do not reach an unreasonable level. This applies, above all, as the law links to "experience" predicting acts of violence. In football, both the police and the organisers have such relevant experience. Where there is a lack of sufficient experience in other areas, the law does not allow for a fee to be charged. In addition, the debtor of the fee is entitled to effective judicial review. The police therefore have to justify ex post their effort made.
The fee is not disproportionate either, although it may reach considerable levels. The legislature links the fee to profit-oriented events only. This means that the fee is regularly commensurate with the economic result an organiser can achieve - also thanks to such increased use of police forces.
The defendant was entitled to claim payment of the fee from the DFL GmbH instead of the home club Werder Bremen. Due to the cooperation between the two protagonists in the Bundesliga competition, the DFL GmbH is to be regarded as a co-organiser of the football match in question. The defendant was allowed to leave the internal compensation to the parties involved.
However, there is still a need for further clarification on the question of whether and to what extent certain costs - in particular for the not inconsiderable number of police detentions in connection with the football match in question - had to be claimed primarily from individual persons causing a disturbance. This involves the interpretation of the federal state law of Bremen as well as the establishment of facts. Since the Federal Administrative Court is not called upon to do so, it reversed the judgment of the Higher Administrative Court and referred the matter back to the lower court.
Footnote:
Section 4 (4) of the Bremen Fees and Contributions Act in the version of 4 November 2014 reads as follows:
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 or as a flat fee.
BVerwG 9 C 4.18 - judgment of 29 March 2019