FEDERAL CONSTITUTIONAL COURT

- 1 BvR 2337/00 -
- 1 BvR 2338/00 -

In the proceedings
on
the constitutional complaints

- 1 BvR 2337/00 -,

- 1 BvR 2338/00 -

the Second Chamber of the First Senate of the Federal Constitutional Court, through Judges

Jaeger,
Hömig, and
Bryde

. . . unanimously decided on 3rd July, 2001:

The constitutional complaints are not admitted for decision.

This at the same time disposes of the motions for a temporary injunction.

Extract from grounds:

The proceedings deal with the constitutionality of § 40.4 and §§ 58a.1 to 58a.3 of the Gesetz über das Branntweinmonopol (Act on the Spirits Monopoly; hereinafter: Branntweinmonopolgesetz - Spirits Monopoly Act) that have been inserted in the Spirits Monopoly Act by Article 12 of the Haushaltssanierungsgesetz (Budget Consolidation Act) as promulgated on 22nd December, 1999 (Federal Law Gazette I, p. 2534), which entered into force, as concerns these regulations, on 1st January, 2000; the regulations provide the withdrawal of commercial distilleries from the spirits monopoly.

I.

1. When it was established, the spirits monopoly, which was created by an Act that was promulgated on 26th July, 1918 (Reichsgesetzblatt [RGBl, Reich Law Gazette], p. 887) was a monopoly of the German Reich that was administered by Reich authorities, the revenue of which went to the Reich. Pursuant to Articles 105.1, 106.1 and 108.1 of the Basic Law, the monopoly became a Federal monopoly, for the administration of which the Bundesmonopolverwaltung für Branntwein (Federal Spirits Monopoly Administration) was established by an Act that was promulgated on 8th August, 1951 (Federal Law Gazette I, p. 491). Even today, the spirits monopoly is subject to the regulations of the Spirits Monopoly Act, which was promulgated on 8th April, 1922 (Reich Law Gazette I, p. 335/ 405; cf. BVerfGE [Decisions of the Federal Constitutional Court] 14, p. 105) and which has been amended several times as concerns some details.

The spirits monopoly was created as a fiscal monopoly to serve as a source of revenue for the state. Apart from this, it pursued agricultural policy objectives. The monopoly was supposed: (1) to enable farmers to utilise their products in a cost-covering manner by distilling them; and (2) to put, in the form of the stillage (distilling slops) that results from the distillation process, a foodstuff with a high protein content at the disposal of farmers who engage in animal husbandry (cf. BVerfGE 14, p. 105 [at p. 106]; . . .).

2. The spirits monopoly is a partial monopoly. Spirits that are produced on a private enterprise basis in so-called Eigenbrennereien (private distilleries), are, in principle, to be delivered to the Federal Spirits Monopoly Administration (so-called Übernahmemonopol [acceptance monopoly]; cf. § 1.1, §§ 58 et seq. of the Spirits Monopoly Act). Pursuant to § 76.1, no. 1 of the Spirits Monopoly Act, grain spirit, inter alia, is exempt from mandatory delivery (§ 101 of the Spirits Monopoly Act). However, pursuant to § 81 of the Spirits Monopoly Act, grain spirit that is not utilised, in a state in which it is ready for consumption, by the producer itself is to be delivered to the Deutsche Kornbranntwein-Verwertungsstelle GmbH (DKV, German Authority for the Utilisation of Grain Spirits), which was registered by the Spirits Monopoly Administration of the German Reich as an association of grain spirit distillers that is entitled to accept and utilise grain spirit pursuant to § 82 of the Spirits Monopoly Act . . .

3. A special legal institution of the spirits monopoly is the Brennrecht (distilling right, § 31 of the Spirits Monopoly Act). This right has evolved from the Durchschnittsbrand (average spirit quota) that was introduced by §§ 61 et seq. of the Branntweinsteuergesetz (Spirits Tax Act) of 15th July, 1909 (Reich Law Gazette, p. 661). § 23 of the Spirits Monopoly Act, as amended in 1918, provided that the average spirit quotas that had been assigned to the distilleries pursuant to the laws in force until this point in time were to constitute, in the future, their (regular) distilling rights. Pursuant to the case-law of the Finance Courts, the distilling right, contrary to the meaning that the term suggests, does not confer the right to distil spirits but only confers privileges under monopoly or tax law. Under monopoly law, distilleries are not, and have not been, prohibited from distilling, i.e., from the production of spirits (cf. BFHE [Decisions of the Federal Finance Court] 55, p. 536 [at p. 537]; 58, p. 410 [at pp. 412-413]; 82, p. 267 [at pp. 270-271]; 87, p. 582 [at p. 586]; . . .).

Decisive for determining the quantity of spirits that can be delivered to the Federal Spirits Monopoly Administration at the Branntweinübernahmepreis (acceptance price for spirits) is, however, not the distilling right but the Jahresbrennrecht (annual distilling right) that is determined every year by the Federal Spirits Monopoly Administration. Pursuant to § 40.1.1 of the Spirits Monopoly Act, the Federal Spirits Monopoly Administration may determine by how many percentage points the distilling right of the different types of distilleries is to be increased or reduced in the specific business year; when doing so, the Federal Spirits Monopoly Administration takes into account: (1) the stock of spirits; (2) the probable consumption; and (3) the funds at the Administration's disposal. For the spirits that are produced and delivered in the framework of the annual distilling right, the Federal Spirits Monopoly Administration pays an acceptance price (§ 58, sent. 1 of the Spirits Monopoly Act) that is determined by the Monopoly Administration every year (§ 64 of the Spirits Monopoly Act); it is calculated on the basis of the Branntweingrundpreis (basic price for spirits, § 65 of the Spirits Monopoly Act) and the deductions and surcharges specified in §§ 66 to 74 of the Spirits Monopoly Act (§ 63 of the Spirits Monopoly Act). The basic price for spirits is a cost covering price. In principle, it covers the average production cost of 100 litres of alcohol in well-managed potato distilleries with an average annual production of 50,000 litres of alcohol. Pursuant to § 81 of the Spirits Monopoly Act, the DKV pays the acceptance price for spirits also to the grain spirit distilleries that deliver grain spirit to the DKV that has been produced in the framework of the annual distilling right or of a special annual distilling right (cf. § 82a of the Spirits Monopoly Act).

4. With few exceptions (§ 3.1.1 of the Spirits Monopoly Act), the spirits monopoly for a long time also comprised a general monopoly of imports. The monopoly of imports made it possible for the Federal Spirits Monopoly Administration to keep alcohol away from the national market that was produced abroad at a considerably lower cost. Such market segregation enabled the Administration to sell the spirit that it had acquired at the cost covering acceptance price at a profit and to pay the surpluses thus obtained - in line with its function as a fiscal monopoly - into the Federal budget.

When the Court of Justice of the European Communities stated in 1976 that the monopoly of the imports of spirits from the member states of the European Community was not compatible with Community law, the monopoly of imports was abolished in this respect (§ 3.2 of the Spirits Monopoly Act). As a consequence, low-priced alcohol entered the national market, and the Monopoly Administration could no longer maintain its high selling prices. Selling prices sank below the acceptance price for spirits so that the Monopoly Administration could no longer generate profits but has since been depending on subsidies from the Federal budget. . .

5. In the context of the debates on the 1999 draft Federal budget, the Bundestag's Budget Commission called for: (1) reorganising the Federal subsidy to the Federal Spirits Monopoly Administration in such a way that it will markedly decline over the years; and for (2) concentrating, by an amendment of the Spirits Monopoly Act, the remaining subsidy more strongly to smaller distilleries that are connected with family-run farms (cf. Records of the Bundestag 14/1523, p. 198). Parliament complied with this request, inter alia, by the following amendments of the Spirits Monopoly Act in the form of Article 12 of the Budget Consolidation Act:

- As from the business year 2006/07, annual distilling rights will only be determined for agricultural distilleries, and for the business years 2000/01 to 2005/06, the annual distilling rights of commercial distilleries will be fixed at 50% of their regular distilling rights (§§ 40.4 and 40.5 of the Spirits Monopoly Act).

- Upon application, the Federal Spirits Monopoly Administration will exempt distilleries as from the beginning of a business year from: (1) mandatory delivery to the Federal Spirits Monopoly Administration pursuant to § 58, sent. 1 of the Spirits Monopoly Act; and from (2) the obligation to assign and deliver spirits to the Federal Spirits Monopoly Administration pursuant to § 82a of the Spirits Monopoly Act. Exemptions that are only valid for single business years are impermissible (§ 58, sent. 2 and 3 of the Spirits Monopoly Act).

- As from the business year 2006/07, the obligation to assign and deliver spirits is abolished for all commercial distilleries (§ 58a.1.1 of the Spirits Monopoly Act). Commercial distilleries that hold a distilling right and obtain an exemption, pursuant to § 58.2 of the Spirits Monopoly Act, from the obligation to deliver or assign spirits, and thus withdraw from the spirits monopoly before the business year 2006/07 are granted, for every 100 litres of spirits produced in the framework of their regular distilling right and for every remaining business year, a compensatory amount pursuant to § 58a.3 of the Spirits Monopoly Act (§ 58a.2.1 of the Spirits Monopoly Act). § 58a.3 of the Spirits Monopoly Act provides graduated compensatory payments, the amount of which is determined by: (1) the type of distillery; (2) the extent of the regular distilling right; and (3) the individual distillery's date of withdrawal. The obligations to assign spirits to the DKV only continue to exist subject to the provisions of § 58, sent. 2 and of § 58a.1 of the Spirits Monopoly Act (§§ 81, 82a, no. 2, sent. 1 of the Spirits Monopoly Act).

The declared objective of the amendments is the release of commercial distilleries from the spirits monopoly by the end of the business year 2005/06 at the latest. As from this point in time, it will no longer be possible for these distilleries to deliver the spirit that they produce to the Federal Spirits Monopoly Administration or to the DKV at the acceptance price for spirits that covers their cost. From then on, they will only be able to sell their spirits in the market, and at market prices. Due to the new regulations described above, commercial distilleries must decide, until the beginning of the next business year on 1st October, 2001, whether they want to remain, for the time being, in the spirits monopoly with an annual distilling right of 50 %, or whether they already at this point in time want to withdraw from the monopoly against the payment of a compensation that results from § 58a.3 of the Spirits Monopoly Act.

II.

1. The complainant bringing the first constitutional complaint operates a commercial molasses distillery in the territory of the former GDR. . . . The complainants bringing the second constitutional complaint operate commercial grain distilleries, some of them in the old German Länder, some in the new Länder.

By way of their constitutional complaints, the complainants directly challenge § 40.4 and §§ 58a.1 to 58a.3 of the Spirits Monopoly Act in the form of Article 12 of the Budget Consolidation Act. They claim a violation of Articles 3.1, 12.1 and 14 of the Basic Law.

. . .

2. Moreover, (they) made a motion for a temporary injunction by which they sought to ensure that they, for the time of the constitutional complaint proceedings, keep the claim to the compensatory amount that is provided for the business year 2001/02, even if they in this business year and in the subsequent years deliver spirits that are produced in the framework of the annual distilling right. In a secondary line of argument, they apply for the suspension of the enforcement of §§ 40.4 and 58a.1 to 58a.3 of the Spirits Monopoly Act until the decision is issued in the constitutional complaint proceedings.

3. . . .

III.

1. The constitutional complaints are not admitted for decision because they do not meet the requirements of § 93a.2 of the Bundesverfassungsgerichtsgesetz (BVerfGG, Federal Constitutional Court Act). The constitutional complaints have no fundamental constitutional significance. Their admission is also not expedient to enforce the fundamental rights the violation of which is claimed by the complainants. This is because the constitutional complaints . . . are . . . unfounded.

a) The challenged regulations are compatible with the Basic Law's guarantee of property. They do not encroach upon property, which is protected by Article 14.1.1 of the Basic Law, if for no other reason than that the complainants' (annual) distilling rights do not fall under the scope of protection of this fundamental right. This applies even if the (annual) distilling rights, contrary to the case-law of the Federal Finance Court (cf. Decisions of the Federal Finance Court 55, p. 536 [at pp. 538, 540]; 58, p. 410 [at pp. 412-413]; 82, p. 267 [at pp. 270-271]; 87, p. 582 [at p. 586]) and of the Federal Court of Justice (cf. BGH LM [Federal Court of Justice Reference Book] § 96 BGB No. 1; BGHZ [Decisions of the Federal Constitutional Court in Civil-Law Matters] 114, p. 277 [at p. 281]) are regarded, concurrently to the complainants' opinion, . . . as rights under public law that individuals may assert.

aa) Rights under public law that individuals may assert and that have the value of assets only fall under the scope of protection of Article 14.1 of the Basic Law if the individual who asserts such right has obtained a legal position that corresponds to the position of an owner. The legal position must be so strong that the entire concretisation of its content, and the rule-of-law content of the Basic Law, preclude its being revoked without compensation. This means that the decisive standard for assessing whether a right may be regarded as a property is to what extent the right proves to be an equivalent of the holder's own achievement or to what extent it is merely based on its being granted by the state. At any rate, the constitutional protection of property is to be denied to any claims under public law in which the fact that they are granted unilaterally by the state is not complemented by an achievement of the holder that justifies the protection of property (cf. Decisions of the Federal Constitutional Court 18, p. 392 [at p. 397]; 45, p. 142 [at p. 170]; 48, p. 403 [at pp. 412-413]).

If the legal system issues regulations that establish a legal framework for situations and types of behaviour in an economic context that, within the general legal system, merely constitute opportunities of earning an income if no specific legal regulations exist, utmost restraint must be employed when it comes to extending the scope of protection that is provided by the guarantee of property to the legal positions under public law that are created by such regulations. Such an extension can be taken into consideration in cases in which: (1) the content of legal positions that have, as yet, already fallen under the scope of protection provided by Article 14 of the Basic Law is reorganised; or (2) a legal position that has been created by the new regulation constitutes a specific compensation for a novel obligation or burden that is imposed at the same time (cf. BVerfGE 45, p. 142 [at pp. 170-171]). The statutory possibility of receiving subsidies is no property under the terms of Article 14.1 of the Basic Law (cf. BVerfGE 97, p. 67 [at p. 83] with reference to BVerfGE 18, p. 392 [at p.  397]).

bb) According to these standards, the complainants' (annual) distilling rights do not enjoy the protection provided by the constitutional guarantee of property.

aaa) The commercial grain distilleries' distilling rights in the old Federal Republic originated from the average spirit quota (see above under I 3), which was calculated on the basis of the previous average production of the individual distilleries. With the help of the average spirit quota, it was possible: (1) to adjust the production of spirits to the existing demand; (2) to compensate the differences in production cost between the distilleries; (3) to lower the prices of spirits produced for industrial purposes, personal demand and export; and (4) to promote the sales of these types of spirits . . . . The annual determination of the average spirit quota thus served to regulate the market.

The yearly determination of the annual distilling rights serves the same objective. Pursuant to § 74 of the Spirits Monopoly Act, the Monopoly Administration determines reductions of the basic price for spirits that are produced in excess of the distilling right; for grain spirit distilleries, these reductions amount to at least 20 %. Because most distilleries will strive to avoid such reduction, they will only produce spirits in the framework of the respective annual distilling right. Thus, the function of the annual distilling rights is to control the market, and this is an inevitable consequence of the spirits monopoly (cf. Decisions of the Federal Financial Court 68, p. 318 [at p. 329]; . . .). The regulations under the Distilled Spirits Act concerning: (1) the determination of the annual distilling rights; (2) mandatory delivery by the distilleries; and (3) the determination of the acceptance price for spirits that have existed so far seamlessly continue the objective that was pursued with the introduction of the average spirit quota by the Spirits Tax Act of 15th July, 1909 (see above under I 3); they thus steer the distilleries' actions and influence their economic situation. Without the regulations, the distilleries would have had to sell their products in the free market. As the Federal Ministry of Finances has shown, a ruinous displacement competition among grain distilleries had set in after World War I. This meant that for motives of market organisation, the spirits monopoly established a legal framework for mere opportunities of earning an income. The distilleries' obligation to deliver the spirits that they produce to the Monopoly Administration is a necessary component of the legal measures that exist in this context. The fact that the acceptance price is paid for the delivered spirits can therefore not be regarded as a special compensation for a novel obligation that is imposed on the distilleries and that has the value of an asset. In the past, annual distilling rights, the distilleries' obligation to deliver the spirits that they produce, and acceptance prices served fiscal policy and economic policy objectives; today, they only serve the latter. Thus, the distilling rights also do not constitute an equivalent to the own achievement of the complainants who have brought the second constitutional complaint.

Nothing else applies to the complainant bringing the first constitutional complaint. In the course of German reunification, . . . the complainant obtained, for reasons of fairness, a regular distilling right pursuant to § 177 of the Spirits Monopoly Act. . . . Because the complainant's reference quantity exceeded 30 million litres of alcohol and the complainant was therefore, pursuant to § 175.2.3 of the Spirits Monopoly Act, excluded from the granting of distilling rights, the complainant's respective annual average production from 1987 to 1989 was clearly not decisive for determining the distilling right. The complainant bringing the first constitutional complaint also did not allege that this had been the case. Therefore the distilling right that the complainant had been granted was not based on the complainant's own achievement.

bbb) When assessing the question whether distilling rights constitute property under the terms of Article 14.1.1 of the Basic Law, it must also be taken into account that the character of the spirits monopoly, in particular the character of the acceptance price for spirits, has undergone a fundamental change since the national market was opened for alcohol from the other member states of the European Union (in this context, see above under I 4). The monopoly has since lost its functions of securing tax revenue for the state and of limiting the production of alcohol. It now only contains a regulation concerning subsidies in favour of the distilleries that fall under the monopoly. As has already been explained above(under III 1a aa), such regulations do not fall under the scope of protection provided by Article 14.1 of the Basic Law.

b) The challenged regulations do also not violate Article 12.1 of the Basic Law.

aa) It is true that they concern an activity that is an occupation under the terms of the provisions of this Article.

Occupational freedom, which is guaranteed by Article 12.1 of the Basic Law, protects all activities of a permanent nature that serve to secure a person's livelihood. This means that an occupation is any activity that is aimed at earning an income and that is not limited to a single act in which an income is earned (cf. BVerfGE 97, p. 228 [at pp. 252-253] with further references). The operation of a commercial distillery serves the owner's earning of an income and is of a permanent nature. It therefore falls under the concept of occupation in Article 12.1 of the Basic Law.

bb) However, the fundamental right that is enshrined in Article 12.1 of the Basic Law is not affected by the challenged regulations.

aaa) Article 12.1 of the Basic Law only provides protection from impairments that are related to an occupational activity. Thus, if a statute under certain circumstances has repercussions on an occupational activity, this is not sufficient to justify the protection that is granted by this Article. On the other hand, it is also not necessary that an occupational activity be directly affected for meriting such protection. It can occur that a statute does not affect the occupational activity itself but changes the framework conditions under which the occupation can be practised. Such a statute affects Article 12.1 of the Basic Law if: (1) the manner in which it is concretised closely connects it to the practise of an occupation; and if: (2) it shows an objective tendency to regulate an occupation or profession (cf. BVerfGE 95, p. 267 [at p. 302]).

bbb) The challenged regulations do not show a tendency to regulate the occupation of commercial distillers.

The regulations are part of a comprehensive regulatory concept that intends to achieve a thorough consolidation of the Federal budget (cf. Records of the Bundestag 14/1523, p. 1, at p. 163). The amendments of the Spirits Monopoly Act are supposed to achieve considerable savings as regards the grants to the Monopoly Administration. To this effect, a fundamental restructuring of the spirits monopoly has been initiated. In the future, state subsidies will only be granted to agricultural distilleries (cf. Records of the Bundestag 14/1523, p. 198). In this context, it is not intended to impair the commercial distilleries' competitive and sales opportunities. It is true that the restructuring of the spirits monopoly can place commercial distilleries at a competitive disadvantage. These are, however, only factual consequences of the measure that has been taken to consolidate the budget. Such disadvantageous changes of economic conditions cannot be regarded as an impairment of occupational freedom (cf. BVerfGE 98, p. 218 [at pp. 258-259]).

After the enactment of the Basic Law, parliament took over and maintained the existing spirits monopoly within its discretion in fiscal policy and economic policy matters; parliament was, however, not constitutionally obliged to do so. Now it has decided to considerably reduce the monopoly with a view to the monopoly's changed nature and to privatise the processing of spirits to al large extent (cf. Records of the Bundestag 14/1523, p. 198); in doing so, parliament has made use of its discretion as regards the determination of objectives in fiscal policy and economic policy. The challenged regulations serve this purpose. They are not aimed at controlling the occupational activity of commercial distillers. They do not subject commercial distillers to legal restrictions as regards the choice and the practice of their occupation. It is true that by withdrawing from the spirits monopoly, commercial distillers forgo the delivery price for alcohol that they produce in the framework of the respective annual distilling right, which before was guaranteed by the state; this will possibly lead to a decrease in their volume of business. Article 12 of the Basic Law, however, does not grant a right to maintain a specific volume of business and also not a right to secure further possibilities of earning an income, e.g., by continued state subsidies (cf. BVerfGE 34, p. 252 [at p. 256] with further references; 82, p. 209 [at p. 223]).

c) Finally, the challenged regulations are also in accord with Article 3.1 of the Basic Law.

aa) Depending on the object of constitutional regulation and on the respective differentiating characteristics, the principle of equality before the law can impose different bounds to parliament; such bounds can range from the mere prohibition of arbitrariness to a strict obligation to comply with proportionality requirements. As concerns the unequal treatment of groups of persons, parliament is subject to such a strict obligation. This also applies if the unequal treatment of facts indirectly results in the unequal treatment of groups of persons. In such cases, the Federal Constitutional Court examines in detail whether there are reasons for the planned differentiation that are of such extent and carry such weight that they justify the unequal legal consequences that result from the differentiation (cf. BVerfGE 101, p. 54 [at p. 101], with further references).

On the other hand, parliament's legislative discretion is broader in the sphere of state activities that involve the granting of rights than in the sphere of activities that administer encroachments upon rights. This especially applies in cases in which the state grants benefits not because: (1) it wants to counteract an urgent social need; or (2) wants to comply with an (at least moral) obligation of the polity, but on its own initiative promotes, by way of financial grants, a specific behaviour on the part of the citizens that the state regards as desirable under economic policy, welfare and other social policy aspects. Parliament, as the state legislator, is largely free in its decision as to which persons or enterprises to promote. It is true that the state may not use irrelevant standards when distributing its benefits. As concerns subsidies, justifications under the aspect of the public good must be provided if they are supposed to continue to exist when weighed against the principle of equality before the law. However, as regards relevant aspects on which parliament can rely, parliament has a very wide scope of such aspects at its disposal; as long as the regulation in question is not based on an assessment of the respective living conditions that clearly contradicts all experience of life, and especially as long as the group of those favoured by the regulation is appropriately delimited, the regulation cannot be regarded as constitutionally objectionable (cf. BVerfGE 17, p. 210 [at p. 216]; 93, p. 319 [at p. 350]).

bb) When weighed against these standards, the challenged regulations are compatible with the principle of equality before the law.

It is true that the withdrawal of the commercial distilleries from the spirits monopoly, as provided in the challenged regulations, results in the complainants being placed at a disadvantage vis-à-vis agricultural distilleries because agricultural distilleries can remain in the monopoly; when doing so, they will receive a delivery price, that lies above the market price, from the Monopoly Administration for the alcohol that they produce in the framework of their annual distilling rights quota (in this context, see above under I 3). There are, however, factual reasons that are sufficiently important to justify this disadvantage.

From the beginning, the spirits monopoly has also pursued agricultural policy objectives (see above under I 1). As the Federal Ministry of Finances and the Bundesverband Deutscher Kornbrenner (Federal Association of German Grain Distillers) have plausibly stated, these objectives have, contrary to the complainants' assumption, not become obsolete. Agricultural distilleries, the characteristics of which are specified in § 25 of the Spirits Monopoly Act, are supposed to increase the yield of soils. Moreover, when alcohol is produced from grain, the distilling slops make valuable foodstuff (stillage) that has a high protein content; stillage makes it possible for a farm that is operated in addition to a distillery to increase the number of its livestock; this, in turn, results in larger quantities of manure, which improves soil conditions. This cycle consisting of raw material, stillage and manure has not become obsolete, especially with a view to the intended new orientation in agricultural policy. It is therefore factually justified that parliament regards closed loop materials economy as environmentally beneficial and desirable under agricultural policy aspects and continues subsidising it, thereby contributing to securing the livelihood of many, especially small and medium-sized, agricultural holdings.

Contrary to this, no corresponding economic policy reasons for continuing to subsidise commercial distillers are apparent. Commercial distillers do not depend on an agricultural holding; they are free in the procurement of their raw materials and in the utilisation of the stillage. To the extent that a commercial distillery in the recent past was demonstrably operated like an agricultural distillery, distillers were, pursuant to § 32 of the Spirits Monopoly Act, allowed to convert their commercial distilling rights to agricultural distilling rights by 1st October, 2000 and thereby secure their stay in the monopoly. With this, parliament has sufficiently considered the fact that there are no factual reasons for excluding these distilleries, which have been commercial so far, from further state subsidies.

Should the complainants want to allege unequal treatment vis-à-vis other groups of distilleries, e.g., fruit spirits distilleries, indicating that by far most of the distilleries that parliament treats as agricultural distilleries are also commercial distilleries, this challenge, which was filed only in June, 2001, (i.e., after the expiration of the one-year time limit provided by § 93.3 of the Federal Constitutional Court Act) was filed out of time.

2. The non-admission of the case at the same time disposes of the motions for a temporary injunction.

. . .