Federal Constitutional Court - Press office -
Press release no. /2010 of 2010
Order of 2010 – 2 BvF 1/09 –
Regulations governing the information gathering of the Federation in
connection with the granting of financial aid to local authorities and Länder
according to the Investing in the Future Act in part unconstitutional
The package of measures adopted by the German Government in December
2008 entitled "Pact for Employment and Stability in Germany:
Safeguarding Jobs, Strengthening the Forces of Growth and Modernising
the Country" ('Stimulus Package II') provided, among other things, that
the Federation support additional investments made by the local
authorities and Länder (states). The package of measures was implemented
by means of the Future Investments Act (Zukunftsinvestitionsgesetz –
ZuInvG), which entered into force on 6 March 2009. According to that
Act, the Federation will provide the Länder with financial aid for
investment measures falling within the funding area for them to use as
they see fit. The Administrative Agreement on the Implementation of the
Future Investments Act reached between the Federation and the Länder
contains the reporting and recording duties incumbent upon the Länder. §
7.1 ZuInvG contains a regulation governing the Federation's right to
claim for repayment in the event of non-fulfilment of the requirements
for promotion or in the event of the financial aid being put to
inappropriate use.
Against this background, § 6a ZuInvG stipulates:
§ 6a Audit by the Bundesrechnungshof
(German Supreme Audit Institution)
In individual cases the Federation may demand further substantiation
and may inspect books, records and other documents in the Länder and
local authorities and conduct investigations on their premises. It
shall thereby avoid a disproportionate amount of administrative
effort. The German Supreme Audit Institution together with the
respective Land audit institution shall examine, within the meaning
of § 93 of the Federal Budget Code (em>Bundeshaushaltsordnung – BHO),
whether the financial aid was used appropriately. It may also
conduct investigations with the federal Länder and local authorities
to that end.
The governments of Baden-Württemberg, North Rhine-Westphalia, the
Saarland, the Free State of Bavaria, the Free State of Saxony and the
Senate of the Free and Hanseatic City of Hamburg believe § 6a sentence
1, sentence 3 and sentence 4 ZuInvG to be unconstitutional and have
applied, in the context of proceedings that concern the abstract review
of a statute, for the challenged provisions to be declared void. They
claim that the active rights of oversight and investigation on the
premises which are accorded the Federation under these provisions lack a
constitutional basis for such authority. They therefore violate the
principle of budgetary autonomy of the Länder. In addition, the German
Supreme Audit Institution is granted new independent audit rights which
exceed its constitutionally determined audit remit, they claim.
The Second Senate of the Federal Constitutional Court held that the
provisions set out in § 6a sentence 1 and sentence 4 ZuInvG are in part
not compatible with the constitution on account of the lack of federal
competence, whilst the provision set out in § 6a sentence 3 ZuInvG,
which is also challenged, is in conformity with the Basic Law
(Grundgesetz – GG).
In essence, the decision is based on the following considerations:
1. The powers provided to the Federation under § 6a sentence 1 ZuInvG
regarding active information gathering in the Land administrations –
including subordinate offices and local authority administrations –
concern the principle of independence in budgetary matters of the
Federation and the Länder pursuant to Article 109.1 GG and the
fundamental jurisdiction of the Länder pursuant to Article 30 GG. The
Federation therefore needs to have been granted competence in the matter
under the constitution.
Such federal competence only exists insofar as the Federation is
authorised according to § 6a sentence 1 ZuInvG to carry out those
investigations on the relevant premises in the Länder and the local
authorities which serve to examine a claim for repayment or liability
according to § 7.1 ZuInvG and Article 104a.5 sentence 1 half-sentence 2
GG, provided that the existence of such a claim appears possible in a
particular case on the basis of concrete facts. The legal provision is
unconstitutional and void insofar as § 6a sentence 1 ZuInvG grants the
Federation powers over and above that.
Article 104b.2 sentence 1 GG merely authorises the Federation to
legislate details concerning the conditions under which it will grant
financial aid to the Länder, in particular the types of investments to
be promoted, but it does not authorise the Federation to introduce
regulations granting it administrative powers vis-à-vis the Länder.
Further, the powers of the Federation regulated under § 6a sentence 1
ZuInvG cannot be established on the basis of Article 104b.2 sentence 2
and 104b.3 GG. According to Article 104b.2 sentence 2 GG, the duties of
the Federation comprise periodic examination regarding the use to which
the funds are being put; Article 104b.3 provides that the German
Bundestag, the Federal Government and the Bundesrat are, at their
request, to be informed about the implementation of the measures and
about the improvements achieved. This comprises the obligee collating
information and providing a summary report. The federal bodies do not
themselves gather information by means of investigations, rather they
are, according to the wording of the provision, to receive information.
By contrast, § 6a sentence 1 ZuInvG grants the federal administration
the authority to have records compiled at its own discretion and to have
these presented, to inspect documents and to carry out investigations on
the affected office's premises, during which it can require documents to
be presented as well as information to be furnished. In addition, at the
federal administration's discretion this information cannot only be
demanded from the highest Land authorities, but also from every office,
i.e. also from subordinate Land authorities and directly from local
authorities. Article 104b.2 sentence 2 GG and 104b.3 GG do not grant the
federal administration the competence regarding such active and direct
information gathering.
Finally, § 6a sentence1 ZuInvG cannot be understood as one particular
manifestation of federal supervisory powers pursuant to Article 84.3 GG,
since it does not serve the uniformity of the exercise of the law by the
Länder but rather the oversight of their administrative authorities'
spending activities.
Nevertheless, according to Article 104a.5 GG the federal legislature has
the option of granting the federal administration the powers to call in
reports from the Land administrations, to obtain files and inspect
documents for the purposes of determining whether a liability claim
exists and on condition that such a claim appears possible on the basis
of concrete facts; to that end the federal administration may also apply
directly to subordinate authorities of the Länder and local authority
administrations and carry out investigations on the relevant premises.
An effective assertion of claims for repayment is necessary in cases
where the funding has not been used appropriately. § 6a sentence 1
ZuInvG is thus constitutional insofar as the authorities provided
therein serve the exercise of these competences and they are restricted
to individual cases in which a claim for repayment appears possible on
the basis of concrete facts.
2. The German Supreme Audit Institution's investigations with Länder and
local authorities pursuant to § 6a sentence 4 ZuInvG also concern the
Länder's basic competences and therefore require authorisation under the
Basic Law.
According to Article 114.2 sentence 1 GG, the German Supreme Audit
Institution is authorised to audit accounts and to examine the
management of the budget and the conduct of business as to economy and
correctness. However, taking account of the Länder's budgetary autonomy,
Article 114.2 sentence 2 GG only justifies the German Supreme Audit
Institution's authority to carry out investigations in the Länder and
local authorities in the event of the granting of financial aid to the
extent to which the Federation has been granted administrative powers.
The Federation's exercise of supervision pursuant to Article 84.3 GG
therefore in the first instance grants the German Supreme Audit
Institution the authority to carry out investigations in the highest
Land authorities for the purposes of determining breaches of the law on
the part of the Land authorities. To that end it may, where there are
concrete indications for a violation, have files sent by these
authorities. The German Supreme Audit Institution is only
constitutionally permitted to conduct investigations directly on the
premises of subordinate Land authorities and local authorities if either
the highest Land authority has consented thereto or has been replaced by
the Bundesrat or if the investigations serve the purpose of establishing
a liability claim within the meaning of Article 104a.5 sentence 1
half-sentence 2 GG which appears possible on the basis of concrete
facts.
Insofar as § 6a sentence 4 ZuInvG authorises the German Supreme Audit
Institution to conduct investigations even though no such preconditions
are met, the legal provision is unconstitutional because the Federation
lacks competence therefor.
3. The provision set out in § 6a sentence 3 ZuInvG is, by contrast,
compatible with the Basic Law. The task it assigns the German Supreme
Audit Institution, namely of examining the appropriate use of financial
aid in cooperation with the respective Land audit institution, does not
affect the area of competence of the Länder. The regulation merely
requires the German Supreme Audit Institution to cooperate and to employ
its resources judiciously.
This press release is also available in the original german version.
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