Federal Constitutional Court - Press office -
Press release no. 2/2010 of 20 January 2010
Order of 8 December 2010 – 2 BvR 758/07 –
Reduction of the compensatory amount for companies providing passenger
transport services to the public pursuant to § 45a.2 sentence 3 of the
Passenger Transport Act unconstitutional due to defects in the
legislative process
As a rule, public transport companies carry trainees at a reduced price
even though the latter have no legal entitlement to such treatment.
According to the case law of the Federal Administrative Court
(Bundesverwaltungsgericht), companies are, however, required in the
public interest to stagger fares to allow, within the confines of their
economic situation, for ordinary, social and reduced fares.
Consequently, companies have the power to set their fares in such a way
that they are able to compensate for shortfalls in revenues from
individual services such as the transportation of school pupils by
increasing the fares for other services thereby pursuing a business
policy that covers costs and generates profits. Furthermore, since 1977
the state has, in addition, granted companies under certain legally
defined conditions a compensatory payment according to § 45a.2 sentence
1 of the Passenger Transport Act (Personenbeförderungsgesetz – PBefG)
for transporting trainees. § 45a.2 sentence 3 PBefG, which was inserted
in the Passenger Transport Act by Article 24 of the 2004 Budget Support
Act (Haushaltsbegleitgesetz), reduced the compensatory amount for 2004
by 4% and provided for further reductions in the following years.
The 2004 Budget Support Act is based on a draft bill of the Federal
Government, which was intended to implement in particular significant
aspects of the Federal Government’s 2003 budget stabilisation concept,
including, among other things, a reduction in subsidies. The Bundesrat
rejected the bill at its first reading. At the same time, a working
group led by the Minister-Presidents of the Länder (states) Hesse and
North Rhine-Westphalia, Roland Koch and Peer Steinbrück, prepared what
became known as the Koch/Steinbrück Paper; it provided for a
comprehensive reduction in subsidies and was published on 30 September
2003. During the first reading of the 2004 Budget Support Act in the
German Bundestag on 9 September 2003, there were unspecific references
to the suggestions in the Koch/Steinbrück Paper, but the Passenger
Transport Act itself was not mentioned. The bill was referred to the
Budget Committee as the responsible committee and to the German
Bundestag’s Finance Committee for an opinion.
The Finance Minister of the Land North Rhine-Westphalia, Dieckmann, and
the Minister for European and Federal Affairs of the Land Hesse, Riebel,
presented in part the proposals for reductions in subsidies of the
Koch/Steinbrück working group at meetings of the Budget Committee and
Finance Committee on 15 October 2003; they requested that such proposals
be incorporated in the deliberations on the draft bill. Both committees
were in favour of approving the draft bill in amended form, however,
without consideration of the Koch/Steinbrück Paper.
During the German Bundestag’s second and third readings of the 2004
Budget Support Act on 17 October 2003, the proposals of the
Minister-Presidents of Hesse and North Rhine-Westphalia were mentioned,
but the Paper’s specific points were not explored in detail. The draft
bill was adopted in the committee version at the second reading and at
the final vote.
When the draft bill was presented to the Bundesrat for its second
reading, it requested that the Mediation Committee be convened with the
aim, among others, of incorporating the proposals made by the
Minister-Presidents, Koch and Steinbrück, in the draft bill. The
Mediation Committee agreed on a proposal to amend the Passenger
Transport Act on 16 December 2003; the committee recommendation for
decision was adopted by the German Bundestag at its sitting on 19
December 2003. A majority of the Bundesrat consented to the Act on 29
December 2003. The Act was published in the Federal Law Gazette on 31
December 2003 and entered into force on 1 January 2004.
The complainant provides bus passenger transport services to the public,
including trainees who were transported for a reduced fare. It applied
to the competent authority in April 2005 for compensation for its public
services in road passenger transport for the 2004 calendar year; the
compensation was not granted in the amount applied for. The complainant
brought an action against the reduction before the Administrative Court,
claiming that the 2004 Budget Support Act and thus the provision for a
reduction in § 45a.2 sentence 3 PBefG had not been properly enacted. It
stated that it had been the Mediation Committee that had first
introduced the provision into the legislative process and that it had
done so without the provision receiving the prior consent of the German
Bundestag and the Bundesrat. The statement of claim and the motion for
leave to appeal were unsuccessful. The complainant alleges a violation
of its fundamental rights under Article 19.4, Article 12.1 and Article
14.1 of the Basic Law (Grundgesetz – GG) as well as under Article 20.3
in conjunction with Article 76.1, Article 77.1, Article 77.2 and Article
77.2a GG.
The Second Senate of the Federal Constitutional Court decided that the
reduction of the compensatory amount pursuant to variant 1 of § 45a.2
sentence 3 PBefG was unconstitutional, but not null and void. The Act
will remain applicable until 30 June 2011 at the latest. The Basic Law
places limits on the powers of the Mediation Committee (Article 20.2,
Article 38.1 sentence 2, Article 42.1 sentence 1 and Article 76.1 GG);
these powers were exceeded in the current legislative process. The
Mediation Committee introduced its own proposals into the legislative
process without the German Bundestag’s participation in the
constitutional manner. As a result, the complainant’s fundamental right
under Article 2.1 GG in conjunction with Article 19.3 GG is violated.
Furthermore, the challenged decision of the Higher Administrative Court
(Oberverwaltungsgericht) violates the complainant’s fundamental right
under Article 19.4 GG because the Court extended the requirements
regarding the substantiation of a motion for leave to appeal in an
unreasonable manner.
In essence, the decision is based on the following considerations:
The powers of the Mediation Committee and its role and function in the
legislative process have been clarified sufficiently in the case-law of
the Federal Constitutional Court. The Mediation Committee has no right
to initiate laws; its task is solely to prepare proposals for amendments
on the basis of the law adopted and the previous legislative procedure,
which, based on the request for the Mediation Committee to be convened,
are within the scope of the parliamentary goals of the legislative
proposals and which settle political differences between the German
Bundestag and the Bundesrat that have at any rate begun to show. The
distribution of powers among the legislative bodies is such that the
German Bundestag has been given the crucial role in the legislative
process. The compromise proposal must be attributable to the German
Bundestag due to the parliamentary debate conducted there. The motions
and comments of the members of parliament, the Bundesrat and, possibly,
the Federal Government that are introduced into the process will
determine the legislative process leading to the request to convene the
Mediation Committee. The prerequisites that must be satisfied before the
Mediation Committee may take up the matter to be regulated are that the
motions and comments were disclosed during the legislative process and
that the members of parliament had the opportunity to discuss them. In
this context, the Mediation Committee must respect the connection also
made necessary by the Basic Law between public debate in parliament and
subsequent mediation between the constitutional bodies involved in the
legislation.
The amendment to the Passenger Transport Act by the 2004 Budget Support
Act was not formally enacted in conformity with the Basic Law. The
introduction of the Koch/Steinbrück Paper into the German Bundestag’s
parliamentary proceedings and its treatment in the Bundestag’s
committees and plenary session did not bestow on the Mediation Committee
the power to include an amendment of the Passenger Transport Act in its
compromise proposal. At least in relation to the reduction of financial
aid, the proposals contained in the Koch/Steinbrück Paper were not
suitable in terms of their scope and structure for proper parliamentary
debate and were also not designed for such in light of how they were
introduced and treated. Instead the whole conduct of proceedings was
obviously aimed towards first achieving the political compromise, which
had from the start been recognised as a necessity, in the Mediation
Committee, while avoiding the publicity of a parliamentary debate and
without providing the members of the German Bundestag with sufficient
information.
The proposals for reducing financial aid from the Federal Government
contained in the Koch/Steinbrück Paper and their treatment in the
committees and in the plenary session of the German Bundestag did not
satisfy the requirements placed on motions and comments in the
legislative process, which determine the framework and subject matter of
the mediation procedure. The scope of the subject matter of the
provision inserted in the draft bill by the Mediation Committee was not
recognisable in the legislative process prior to the adoption of the
law. This is because the listing in the Koch/Steinbrück Paper of various
financial aid which should be subject to across-the-board reductions,
without any attempt to evaluate them legally and politically and without
allocating them to the relevant areas (budget or legislation), made it
practically impossible for the members of parliament to deal with the
proposals in detail in a responsible manner.
The failure to concretise the issues was also not rectified by the fact
that the Koch/Steinbrück Paper was dealt with by the committees of the
German Bundestag and that there was a recommendation for a decision and
a report from the Budget Committee since the Ministers limited
themselves to mentioning examples when presenting the Paper.
Similarly, the various mentions of the Koch/Steinbrück Paper in the
three readings of the 2004 Budget Support Act in the plenary session of
the German Bundestag did not mean that it would have been permissible
for the Mediation Committee to include the Paper’s list of financial
aid. The constitutionally guaranteed rights of members of parliament to
receive information and participate in the legislative process must be
respected in the ways provided for by the Basic Law and the Rules of
Procedure of the German Bundestag. The purpose of the principle of
parliamentary openness is to make the content of parliamentary debates
public.
Furthermore, the way that the Koch/Steinbrück Paper was introduced into
the parliamentary process does not meet the requirements placed on the
formalities of the legislative process; this is because the
Koch/Steinbrück Paper was not introduced into the legislative process at
the initiative of the Bundesrat (Article 76.1 GG). The appearances of
the Land Ministers, Dieckmann and Riebel, before the German Bundestag’s
committees were based on their right to speak under Article 43.2
sentence 2 GG. The right to speak is not a power available to the
Bundesrat in its capacity as a constitutional body as a whole, but
rather as an individual right of individual members of the Bundesrat.
Consequently, the Ministers did not introduce the Paper in the form of
comments by the Bundesrat on the Federal Government’s draft bill;
instead the Paper was material which was presented to the committees and
members of the German Bundestag in a non-obligatory manner.
The inclusion of the content of the Koch/Steinbrück Paper in the
Mediation Committee’s recommendation for a decision can also not be
justified by the fact that, when making its request that the Mediation
Committee be convened, the Bundesrat demanded that the Act be thoroughly
revised and that the proposals of the Minister Presidents, Roland Koch
and Peer Steinbrück, for reducing tax benefits and financial aid be
included. The request for the convening of the Mediation Committee would
then be tantamount to a legislative proposal, which is something that
may only be made in the manner provided for in the Basic Law. This would
allow the German Bundestag a right of veto which is exactly that which
makes the position of the Bundesrat in the legislative process so
special.
The defect in the legislative process affects the validity of the
challenged law since it is obvious. On a sound appraisal of the
situation, it was evident in 2003 to the bodies involved in the passage
of the legislation that the procedure for amending the Passenger
Transport Act through the 2004 Budget Support Act was not compatible
with the Basic Law. The judgment of the Senate of 7 December 1999 had
already clarified the constitutional standards (see on this also BVerfGE
120, 56, 79-80). The fact that it was likely at the time that the
political compromise needed could only be reached through the Mediation
Committee does not justify shortening the process in the German
Bundestag so as to accelerate access to the mediation procedure if for
no other reason than that this would considerably restrict parliamentary
openness and thus the transparency of political responsibility vis-à-vis
the citizenry.
No other violations of the Basic Law exist. The first variant of § 45a.2
sentence 3 PBefG is constitutional as far as its substance is concerned.
The activities of the complainant as a transport company providing
passenger transport services to the public fall within the fundamental
right to freedom of occupation under Article 12 GG in conjunction with
Article 19.3 GG. Whether the provision also tends towards a regulation
of occupational freedom does not have to be answered here since it
serves recognised considerations of public interest and does not burden
the persons affected disproportionately. Recognition of the
considerations of public interest when fixing fares for passenger
transport services requires that school pupils and trainees as a group
receive preferential treatment. However, increases in the level of fares
for other groups reaches its limit in the interests of public transport,
particularly in the market’s ability to absorb such increases in fare
prices. The purpose of the compensation under § 45a PBefG is to close
such gaps and to ensure that public passenger transport services can
survive. The consolidation of public budgets – in this case, the budgets
of the Länder, which are obliged to grant compensation under § 45a.3
sentence 1 PBefG – is a legitimate objective of the legislature. There
is no evidence to suggest that an average transport company could not
have compensated for the 4% reduction in the compensatory amount after a
reasonable period of time by setting its prices in a manner which could
be expected of it. Nor was the legislature obliged to limit the scope of
application of the provision to newly granted concessions or to postpone
the Act’s entering into force. A mere expectation on the part of a
transport company that the law will continue to apply in its current
form without amendment is not protected by the Basic Law. For the same
reasons, the challenged provision does not violate Article 14.1 GG.
The incompatibility of the challenged provision in variant 1 of § 45a.2
sentence 3 PBefG with the Basic Law does not lead to its being null and
void because if this were the case the legislative concept of the 2004
Budget Support Act would be retrospectively invalidated. As a result, in
order to have due regard to the interests of reliable financial and
budgetary planning and a uniform exercise of administrative powers
during periods of time that are in largest part past, the provision will
remain provisionally enforceable. Its continued applicability will
terminate, however, when a new provision is enacted or on 30 June 2011
at the latest.
The order of the Higher Administrative Court which refused the
complainant’s motion for leave to appeal violates the complainant’s
fundamental right under Article 19.4 GG; this is because the Higher
Administrative Court extended the requirements regarding the
substantiation of a motion for leave to appeal in § 124a.4 sentence 4 of
the Code of Administrative Court Procedure (Verwaltungsgerichtsordnung –
VwGO) in a manner that cannot be objectively justified. In addition, in
view of the formal unconstitutionality of the indirectly challenged Act
it failed to recognise the existence of a ground for leave to appeal
which took the form of a serious doubt as to the correctness of the
Administrative Court’s decision pursuant to § 124.2 no. 1 VwGO; this
failure occurred in a manner that violates Article 19.4 GG
The vote on the decision was seven in favour and one against.
This press release is also available in the original german version.
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