Federal Constitutional Court - Press office -

Press release no. 113/2009 of 6 October 2009

Order of 16 September 2009 – 2 BvR 852/07 –

Minimum contribution collected according to § 16 of the Federal
Financial Supervisory Authority Act is constitutional 


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 
Finanzdienstleistungs¬aufsichtsgesetz – 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. 


This press release is also available in the original german version.