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Minimum contribution collected according to § 16 of the Federal Financial Supervisory Authority Act is constitutional
Press Release No. 113/2009 of 06 October 2009
Order of 16 September 2009
2 BvR 852/07
The Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht) supervises, inter alia, the credit institutions and financial service institutions and the trading in securities. For its own funding, it collects a contribution from the enterprises that it supervises, which is payable on a yearly basis. The volume of business of each enterprise is decisive for the amount of the contribution. In the supervisory area Credit and Financial Services, the balance sheet total is taken as an orientation for determining the volume of business. In the supervisory area Securities Trading, the number of reported transactions is the guideline for credit institutions and brokers; for financial service institutions, it is the balance sheet total. Irrespective of this calculation, a minimum contribution of €250.00 per year was collected from each enterprise in each supervisory area. In 2003, the minimum contribution was modified in such a way that in the supervisory area Credit and Financial Services, the new minimum amount was between €1300.00 and €4000.00, depending on the type of enterprise, but was reduced to one half if the balance sheet total was below €100,000.00. The complainant, a finance portfolio administrator, challenges the collection of the minimum contribution as unconstitutional.
The Second Senate of the Federal Constitutional Court has rejected the constitutional complaint as unfounded. The minimum contribution according to § 16 of the Federal Financial Supervisory Authority Act (Gesetz über die Bundesanstalt für Finanzdienstleistungsaufsicht - FinDAG) complies with the permissibility requirements under the conditions of the provisions in the Basic Law pertaining to fiscal activities; the requirements have been established by the Federal Constitutional Court and are particularly strict as regards special levies for providing funding (see judgment of the Second Senate of 3 February 2009 - 2 BvL 54/06 - press release no. 10/09 of 3 February 2009 and order of the Second Senate of 12 May 2009 - 2 BvR 743/01 - press release no. 57/09 of 5 June 2009). The minimum contribution also does not infringe the principle of equality because the minimum amount may not be understood as a charge for specific supervisory services which can be assigned to an individual enterprise. It is intended to take account of the fact that every entity that is subject to supervision benefits from the supervisory services provided to the entity itself or other such entities, which contribute to the stability of the market on which it depends to unfold its business activities.
In essence, the decision is based on the following considerations:
The minimum contribution serves an objective which goes beyond mere fundraising. It serves to handle the risks which may result from unregulated activities of the supervised enterprises, and it is intended to strengthen the investors' trust in the soundness and integrity of these enterprises as a necessary framework condition for a functional financial market. With a view to this objective, the supervised enterprises are a homogeneous group which is connected by common circumstances and interests that make it possible to differentiate them from the general public and from other groups. The group burdened with the contribution, which is made up of credit institutions, financial service institutions and enterprises that provide investment services, has a specific relation to the objective of the contribution. The fact that the burden of funding is passed on separately finds its justification in a responsibility for the consequences of group-specific circumstances and behaviour. The yield from the duty is used for the benefit of the group, because a factual proximity of the burdened enterprises to the objective which is pursued by the collection of the duty and a corresponding responsibility for providing funding mean that the appropriate use of the yield from the duty is at the same time of benefit to the group in that it relieves the entire group of those liable to pay the duty of a task which can be assigned to their area of responsibility.
The duty, which is collected as a minimum contribution, is also compatible with Article 3.1 GG. The legislature is in particular not required to grade the amount of the duty in strict relation to the balance sheet total; instead, it may take into account, apart from the extent of an enterprise's participation in the market, that on average, a certain basic outlay arises as regards the individual enterprises irrespective of their size even though such outlay can only be ascertained in a generalised manner. There are no indications that § 6.4 and 6.5 of the Ordinance on the imposition of fees and allocation of costs pursuant to the FinDAG (Verordnung über die Erhebung von Gebühren und die Umlegung von Kosten nach dem Finanzdienstleistungsaufsichtsgesetz - FinDAGKostV) do not realistically reflect such outlay, in particular as § 6.4 sentence 2 FinDAGKostV and § 6.5 FinDAGKostV additionally differentiate the minimum amount in the supervisory area Credit and Financial Services according to the type of business and the balance sheet total, and as pursuant to § 6.4 sentence 2 letter e FinDAGKostV the minimum amount is reduced to one half if the balance sheet total is particularly low. The fact that a certain minimum supervisory outlay does not actually arise every year for every enterprise because the continuous supervision according to § 7 of the Banking Act (Gesetz über das Kreditwesen - KWG) is incumbent on the Bundesbank is not decisive.